Citation Nr: 1320987 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 07-08 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a foot disability. 2. Entitlement to service connection for an eye disability, to include as secondary to Agent Orange exposure. 3. Entitlement to service connection for a skin disability, to include as secondary to Agent Orange exposure. 4. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, pain disorder with psychological and medical factors, bipolar disorder, and obsessive compulsive disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to October 1971, with service in the Republic of Vietnam from April 1969 to April 1970. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO), which denied reopening of a claim of service connection for painful left foot and left third toe callous (also claimed as flat feet) and denied service connection for skin rash, eyes, PTSD, bilateral hearing loss, and ringing in both ears. The Veteran was originally scheduled for a Travel Board hearing on March 18, 2009. He notified VA that he was sick on the day of the scheduled hearing and was unable to attend. See March 2009 statement. Then the Veteran was scheduled for a Video Conference hearing on May 5, 2009. That day the Veteran called VA to say that he had a medical condition (knee) that prevented him from travelling and that he was told that he would be scheduled for a video hearing locally in Memphis, but had not received further information. In September 2009, the Board remanded the Veteran's claim for the Veteran to be scheduled a Video Conference hearing. The Veteran was scheduled for a Video Conference hearing on November 10, 2009. However, the Veteran failed to report to the scheduled hearing and did not notify VA. In his March 2013 statement, the Veteran expressed a desired to have a hearing. Absent a showing of good cause for why he was unable to attend the prior hearing, the new request for a hearing is denied and the case will proceed as if the hearing request was withdrawn. See 38 C.F.R. §§ 20.702(d), 20.704(c). In September 2011, the Board remanded this case for further development. Before this case was returned to the Board, service connection was granted for two disabilities. Service connection for tinnitus was granted in a November 2012 rating decision and service connection for bilateral hearing loss was granted in a February 2013 rating decision. As this represents a full grant of the benefits sought with regard to these disabilities, they are no longer before the Board. This appeal was processed in part by using the Virtual VA paperless claims processing system. The documents contained in this system, including the hearing transcript, were reviewed in conjunction with this appeal. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue of entitlement to service connection for an acquired psychiatric disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam Era; therefore exposure to herbicides is presumed. 2. The competent and credible evidence does not show that the Veteran's foot disability, diagnosed as a callous on the left third toe, is related to his military service. 3. The competent and credible evidence does not show that the Veteran's eye disability is related to his military service, nor is it be presumed to be related to his presumed exposure to herbicides. 4. The competent and credible evidence does not show that the Veteran has a chronic skin disability; his documented skin rash during the appellate period is not related to his military service nor is it be presumed to be related to his presumed exposure to herbicides. CONCLUSIONS OF LAW 1. A foot disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 2. An eye disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. A skin disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the present case, complete notice was not issued prior to the adverse determination on appeal in that the January 2006 notice letter did not address disability ratings and effective dates. However, additional compliant notice was later issued in a March 2006 communication, and the claim was thereafter readjudicated in the January 2007 Statement of the Case. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. As noted in the Introduction, the Veteran was scheduled for a Video Conference hearing on November 10, 2009, in compliance with the September 2009 Board remand. In compliance with the Board's September 2011 remand, VA obtained outstanding VA treatment records and provided the Veteran with medical examinations in November 2011 (skin), January 2012 (eyes), and February 2012 (feet). VA then sought additional clarification through a February 2013 independent medical review (eyes). These examinations, when coupled with the independent medical review , contained all information needed to rate the disabilities. In each case, the examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation before offering opinions as to the nature of the claimed disabilities, accompanied by a rationale. Therefore, they are adequate for VA purposes. Thus VA has complied with the September 2009 and September 2011 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection - Generally Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Exposure to an herbicide agent is presumed for veterans, such as the Veteran in this case, who had active service in the Republic of Vietnam during the Vietnam Era (from January 9, 1962 to May 7, 1975). 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Additionally, service connection for certain disabilities is presumed for veterans who were exposed to herbicides while in service. 38 C.F.R. § 3.309(e). In this case, however, the record does not show diagnoses of any of the disabilities listed in 38 C.F.R. § 3.309(e), such as chloracne, for which service connection can be presumed for herbicide exposed veterans. To prevail on the issue of direct service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In making all determinations, the Board must fully consider all lay assertions of record. A layperson is competent to report on the onset and continuity of observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board's duty is to assess the credibility and weight of the evidence. See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Foot Disability Throughout the course of the appeal, the Veteran has reported a long-standing history of foot pain; however, the only diagnosed foot disability during the appellate period was that of a callous on the left third toe. See February 2012 VA examination. Thus, the current disability requirement is met with regard to that diagnosis. The Veteran's service treatment records show complaints of pain and intermittent foot problems, despite normal left foot examination, culminating in a May 1969 physical profile for flat feet. Thus, the in-service occurrence or aggravation of a disease or injury requirement is met. The Board notes that neither foot pain nor callous is among those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). As such, the Veteran's reports of continuously recurring symptoms is insufficient to establish service connection. See Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013). The final requirement for direct service connection is a nexus between the in-service disease or injury and the Veteran's current disability. In this case, the record does not contain such an opinion. The February 2012 VA examiner found that the Veteran's foot disability was less likely as not incurred in, caused by, or proximately due to his military service. In the accompanying rationale, this examiner noted that the current foot examination was essentially normal (except for the callous) and that both the Veteran's entrance and separation examinations showed normal feet. To the extent that the Veteran himself believes that his foot disability was due to his military service, the Board acknowledges that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau, 492 F.3d 1372, 1377. Here, however, the Veteran is not competent to address etiology between a current diagnosis of callous and in-service complaints of foot pain with a diagnosis of flat feet. Thus, the Board finds that the medical nexus requirement has not been met. In short, for reasons expressed immediately above, the claim of service connection for foot disability must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Eye Disability During the appellate period, the Veteran has been diagnosed with various refractive errors of the eyes, such as myopia, presbyopia, and astigmatism, as well as allergic conjunctivitis and left eye atrophic retinal hole. See January 2007 VA treatment record and January 2012 VA examination. Refractive errors of the eyes are not diseases or injuries within the meaning of the applicable legislation. See 38 C.F.R. §§ 3.303(c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Refractive errors, as opposed to diseases, could not be service-connected because they are not diseases or injuries under the law; however, if superimposed injury or disease occurred, the resultant disability might be service-connected. Id. The Veteran contents that he sustained injuries to his eyes during basic training due to being repeatedly hit in the head with pugil sticks. See May 2007 VA treatment record. The Board takes judicial notice that a pugil stick is a padded pole-like training weapon. While training with pugil sticks is consistent with the Veteran's circumstances of service, the record does not show any treatment for a resulting injury. Indeed, the first mention of these injuries is several decades after the Veteran's separation and after at least one documented eye injury; a January 1984 motor vehicle accident. The Veteran's credibility is diminished by this passage of time. Moreover, the Veteran's eye sight at the time of his separation was normal, suggesting that even if such an injury occurred, it did not affect the Veteran's vision. Thus, while the Veteran is competent to report such an incident, the weight of the evidence is against finding a superimposed in-service eye-injury. As such, service connection is not available for the diagnosed refractive errors of the eyes. With regard to the remaining eye disabilities, the January 2012 VA examiner found that the atrophic retinal hole in left eye was is less likely as not related to or aggravated by the Veteran's active duty service because it was diagnosed in 2008, but not present at the time of his 2007 exam, suggesting recent presentation. Additionally, a February 2013 independent medical review found that it is less likely than not that the Veteran's bilateral chronic conjunctivitis was incurred in, caused by, or proximately due to his military service, including exposure to Agent Orange. In her accompanying rationale, the reviewer noted that there was no documentation of injury or eye condition during service or within the presumptive period following separation. The Veteran's entrance and separation examinations were identical in terms of his eye examinations and no eye condition was noted at separation. Chronic allergic conjunctivitis is not a disability for which service connection is presumed for herbicide-exposed veterans. The Veteran has not submitted positive medical nexus opinions to refute these findings. To the extent that the Veteran himself believes that his eye disability was due to his military service, the Board acknowledges that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau, 492 F.3d 1372, 1377. Here, however, the evidence of record includes eye examinations after the alleged injury and these examinations found no disability. As such, any claimed etiological connection would include a delayed onset, and not the immediately observable cause-and-effect relationship contemplated by Jandreau. Thus, the Veteran is not competent to address etiology in the present case and the Board finds that the medical nexus requirement has not been met. For reasons expressed immediately above, the claim of service connection for eye disability must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49, 54-56. Skin Disability In his lay statements, the Veteran has reported an in-service onset of skin rash. The Veteran's service treatment records do not document treatment for a skin condition during service and no skin abnormality was found at the time of his October 1971 separation examination. The Veteran testified at his March 2008 Decision Review Officer (DRO) hearing that he had spots on his leg, neck, and back. A skin rash is not among those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). As such, the Veteran's reports of continuously recurring symptoms is insufficient to establish service connection. See Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013). Likewise, despite the Veteran's complaints of recurring symptoms, his treatment records do not show a chronic skin condition. May 2008 VA treatment records show no rash and a November 2011 VA examination found no evidence of a current skin disability. Conversely, a June 2008 VA treatment record does note a skin rash that the Veteran reported had been present for four days. The physician noted that the Veteran had been out in the sun more than usual that week and that the rash was present only on sun-exposed areas. The physician also noted that the Veteran had recently begun taking Cipro three days earlier and was already taking Vardenafil and nortriptyline. All three of these medications were known to cause photosensitive rashes. Thus, to the extent that the record contains any medical evidence of a skin disability, that condition was described as a photosensitive rash due to the combination of medication and prolonged sun exposure and not as a disability related to the Veteran's military service. Again, for reasons expressed immediately above, the claim of service connection for skin disability must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49, 54-56. ORDER Service connection for a foot disability is denied. Service connection for an eye disability is denied. Service connection for a skin disability is denied. REMAND Acquired Psychiatric Disability The Veteran's VA treatment records show diagnoses of bipolar disorder, pain disorder, and obsessive compulsive disorder. See e.g., March 2007 VA treatment records. The Veteran has related his psychiatric symptoms to his military service. Particularly, he reported an incident when he helped a woman who had caught fire in an explosion at the mess hall and seeing someone get blown up. See March 2008 DRO hearing transcript. While there was no in-service diagnosis of a psychiatric disorder, the possibility of a psychiatric separation was explored during service. Indeed, a September 22, 1969 service treatment record specifically found no significant mental health disease, noting that the Veteran appeared to have a personality conflict within the unit, but appeared to partially enjoy this conflict. As the Veteran was rated excellent on work, the writer saw no reason for a psychiatric separation. The Veteran was not diagnosed with any psychiatric disability during the November 2011 VA examination, but did note symptoms of anxiety and impaired judgment. Additionally, this examiner noted occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, due to his mental diagnoses. In a January 2013 addendum, the examiner found that the onset date and etiology for the Veteran's disabilities cannot be determined without unfounded speculation, noting that this examiner had not provided these diagnoses. That reasoning is insufficient to explain why such an opinion would be speculative and did not suggest what additional information would be necessary in order for the examiner to provide such an opinion. Therefore, an addendum opinion is necessary to either provide a medical nexus opinion or to satisfactorily explain why none can be provided despite the availability of the Veteran's service and treatment records and his current, impairing symptoms. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion or, if necessary, a new examination to determine whether a current acquired psychiatric disability is related to the Veteran's active duty service. The claims folder and relevant records from Virtual VA must be made available to, and reviewed by, the examiner. The examiner should opine, for each psychiatric disability identified, whether it is at least as likely as not (i.e., probability of 50 percent or greater) that such disability had its onset in service or is otherwise attributable to the Veteran's active duty service, to include whether the "personality conflict" referenced in the September 1969 record evinces an in-service onset of such a disability. The examiner should provide reasons for the opinion. The medical reasons for accepting or rejecting the Veteran's statements should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. If the benefit sought is not granted, issue a supplemental statement of the case and give the Veteran opportunity to respond before the record is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs