Citation Nr: 1322471 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 11-27 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether the Veteran submitted a timely Notice of Disagreement (NOD) to the February 2009 rating decision which denied service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a skin disability to include chloracne. 3. Entitlement to a higher initial evaluation higher for PTSD, rated as 10 percent disabling prior to May 17, 2012, and 30 percent disabling beginning May 17, 2012. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from rating decisions issued by the Regional Office (RO) in Lincoln, Nebraska. The Veteran testified at a hearing before the undersigned in April 2013. A transcript of that hearing is of record. In characterizing the issues on appeal, the Board notes that although the Veteran initially filed a claim for service connection for chloracne, the Board has restyled the issue to include any potentially relevant skin claims raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. Such review reveals documents that are relevant to the issues decided herein; these records, however, were reviewed and considered by the RO in its adjudication of these issues. Hence, there is no prejudice to the Veteran with the Board proceeding with a determination at this time. For reasons discussed following the order, the issue of entitlement to a higher initial evaluation for PTSD 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. A February 2009 rating decision denied a claim of entitlement to service connection for PTSD; such decision was mailed to the Veteran on February 19, 2009. 2. No correspondence was received within one year of the mailing of the February 2009 decision which indicates disagreement with that decision and/or evidences an intent to file an appeal as to the denial of service connection for PTSD. 3. A chronic skin disability was not demonstrated until after separation from active duty service and has not been shown by competent clinical, or competent and credible lay evidence, to be causally related to the Veteran's active service, to include exposure to any herbicides while serving in Vietnam. CONCLUSIONS OF LAW 1. The Veteran did not submit a timely NOD to the February 2009 rating decision denying service connection for PTSD. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.200, 20.201, 20.300, 20.302 (2012). 2. The criteria for service connection for a skin disability to include as due to exposure to herbicides are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in October 2008 and June 2011 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. The appeal was most recently readjudicated in the September 2012 supplemental statement of the case. The Board notes that the Veteran is challenging the disability evaluation and effective date assigned following the grant of service connection of PTSD. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA's duty to notify in this case has been satisfied. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, VA examinations and available private treatment records. Furthermore, during the April 2013 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claims. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2). During his hearing, the Veteran argued that another VA examination is needed for the skin because he believes that he was not properly diagnosed. The Board notes, however, that the October 2011 VA examination is adequate as it reflects a pertinent medical history, review of the documented medical history, clinical findings, a diagnosis, and an opinion supported with rationale. The examiner expressly did not find that the evidence supported a diagnosis of chloracne. There is no reason to find that the VA examiner misdiagnosed the Veteran so that his claim would not be granted. For the reasons explained above, another VA examination is not warranted. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Timeliness of NOD The governing law and regulations provide that rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a) (2012). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not filed within the allowed time period. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2012). A claimant, or his or her representative, must file a NOD within one year from the date that that agency of original jurisdiction mails notice of a determination to him or her. The date of mailing of the letter of notification from the RO will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302(a). Otherwise, that determination will become final. Reviewing the evidence of record, in a rating decision dated February 11, 2009, the RO denied the Veteran's claim for service connection for PTSD. The RO issued the rating decision to the Veteran on February 19, 2009 with a notice letter explaining that the Veteran had one year to appeal the RO's decision. The claims file contains no document filed by the Veteran within one year of the February 19, 2009 issuance of the rating decision dated that same month which might constitute a NOD as to this decision. Evidence indicates that in May 2009, the Veteran submitted a letter discussing his compensation checks for another disability. In June 2009, he submitted a claim for service connection for diabetes mellitus, peripheral neuropathy, and hypertension. Finally, in July 2009, the Veteran submitted a document entitled 'NOTICE OF DISAGREEMENT.' In this document, he indicated that he disagreed with "VA's denial of my hearing loss and bilateral foot condition." In view of the foregoing, the Board finds that evidence indicates the Veteran did not file a timely NOD, disagreeing with the February 2009 rating decision. The Board notes that the Veteran has not presented any evidence, lay or medical, suggesting that he did not receive the February 2009 rating decision in a timely fashion. Further, it was his testimony before the undersigned that he was uncertain as to whether he submitted a NOD with this decision (via his accredited representative). The United States Court of Appeals for Veterans Claims (Court) has held that 'there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties.' Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 71 (1926)). The presumption of regularity attaches to 'all manner of VA processes and procedures.' See Woods v. Gober, 14 Vet. App. 214, 220 (2000). Thus, it follows that the presumption is applicable to VA employees' theoretical handling of a NOD filed by the Veteran. Absent clear evidence to the contrary, VA is entitled to the presumption that a VA employee would have properly handled the Veteran's NOD had it been filed in a timely manner. In addition, as government employees, employees of the United States Postal System are also entitled to the presumption of regularity in handling and delivering mail, to include any mail sent by the Veteran to VA. In order to overcome the presumption of regularity and shift the burden to VA to prove that federal employees did not somehow misplace or destroy the Veteran's properly submitted NOD, the Veteran must submit 'clear evidence' indicating that the federal employees erred in the handling of his NOD. See Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001) (presumption of regularity allows courts to presume that what appears regular is regular, the burden shifting to the claimant to show the contrary). In this instance, the Veteran is uncertain whether he submitted a NOD following the issuance of the February 2009 rating decision. Following this decision, the first correspondence of record which mentions a claim for service connection for PTSD is a June 2011 informal claim for compensation. Notably, the record does contain a NOD dated in 2009. As discussed above, however, this document is clearly limited to the RO's January 2009 rating decision which denied service connection for hearing loss and jungle rot. In sum, the Veteran has not submitted any evidence clearly indicating that he submitted a NOD as to the February 2009 rating decision. He also has not submitted any evidence indicating that a VA employee misplaced or destroyed any such NOD. Thus, he has not submitted clear evidence necessary to rebut the presumption of regularity in the handling of all documents regarding his claim. As the evidence indicates that the Veteran did not submit a NOD within one year of the issuance of the February 2009 rating decision, the Board finds that the Veteran's filing of a NOD in that matter was not timely. Consequently, the appeal as to the timeliness of a NOD is denied. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.302. Service Connection for a Skin Disability The Veteran appeals the denial of entitlement to service connection for a skin disability. He contends that his skin disability is a result of his exposure to Agent Orange in Vietnam. 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. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era. See 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a) (6) (iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a) (6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Thus, a presumption of service connection arises for a Vietnam veteran (presumed exposed to Agent Orange) who develops one of these conditions. VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically been determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -346 (1994); see also 61 Fed. Reg. 57586 - 57589 (1996). Considering the record in light of the above-noted legal authority, the Board finds that service connection for a skin disability, to include as due to exposure to herbicides, is not warranted. In this case, the Veteran's DD 214 clearly reflects service in Vietnam. Thus, he is presumed to have been exposed to Agent Orange during such service. The record, however, does not establish that the Veteran has been diagnosed with a disability listed as one of the diseases associated with herbicide exposure under 38 C.F.R. § 3.309(e). In this regard, while chloracne or other acne form disease consistent with chloracne is a disease associated with herbicide exposure, the competent evidence does not establish that the Veteran has been diagnosed with such disease. Rather, he has been shown to have eczematous dermatitis which is not one of the disabilities that can be presumed to be the result of Agent Orange exposure. See 38 C.F.R. § 3.309(e). Because the Veteran's disability is not listed under 38 C.F.R. § 3.309(e), he is not entitled to service connection for this disability on a presumptive basis stemming from his exposure to herbicides in service. The regulations governing presumptive service connection for herbicide exposure, however, do not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (1994). Accordingly, the Board will proceed to evaluate the Veteran's claim under the provisions governing direct service connection - 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303. Service treatment records show the Veteran was treated in service for a rash on the scrotum for three days in August 1966 and an infection with redness of the left lower leg in October 1966. At separation, he denied skin diseases and the skin was shown to be normal on examination. Post-service treatment evidence reflects that the Veteran was diagnosed with dermatitis during the October 2011 VA examination. The Veteran reported that his rash started in the 1970s. Based on physical examination and clinical presentation, the VA examiner opined that the Veteran's skin condition was less likely as not chloracne. The examiner stated the distribution of the Veteran's claimed skin condition is to the trunk and that the Veteran stated that he wore T-shirts as part of his fatigues and uniform during service in Vietnam. The rash, the examiner stated, appears to be in the trunk area which would be covered by the T-shirt. It was also noted that the exposed areas such as the arms, hands, neck and face that would have been more likely exposed to herbicides while on active duty are free of any skin lesions. Therefore, based on clinical presentation, characteristics of the primary skin lesions and the overall history, the VA examiner opined that the Veteran does not demonstrate evidence of chloracne that is due to or the result of active duty. The VA examiner stated, however, that the Veteran demonstrated evidence of eczematous dermatitis as affecting the trunk. The VA examiner opined that it was less likely than not that this skin condition is due to or the result of skin condition as having occurred while on active duty. The examiner stated that review of the Veteran's service treatment records indicates some skin lesions to the scrotal region as well as an infection to the left lower leg. The examiner found that there was no evidence that the Veteran's current skin condition as described in the report is in any way related to the skin conditions documented with regards to the scrotum or the left leg while on active duty. He further stated that the onset of the Veteran's current condition as described in the report began sometime following his release from active duty. During the April 2012 DRO hearing, the Veteran reported that he was sprayed with Agent Orange during service. He reported a rash from the beltline up and that his rash spread to his back, legs and chest. He expressed that his skin disability itched a lot and that he was restricted in the clothes that he wore. During his April 2013 Board hearing, the Veteran again expressed that he was sprayed with herbicides during service. He stated that he noticed skin problems when he came home and described skin manifestations on his legs and chest. The Veteran acknowledged that he has not been diagnosed with chloracne. In light of the evidence summarized above, the Board finds that service connection for a skin disability, to include chloracne, is not warranted. To that end, the Board reiterates that the Veteran has not been diagnosed with chloracne. During his Board hearing, the Veteran stated that he has not been diagnosed with chloracne and the VA examiner determined that the Veteran did not have chloracne. Based on clinical presentation, characteristics of the primary skin lesions and the overall history, the VA examiner opined that the Veteran does not demonstrate evidence of chloracne that is due to or the result of active duty. Rather, he found that the Veteran had eczematous dermatitis. While it is shown that the Veteran does have skin disability, the Board finds that the more probative evidence demonstrates that the Veteran's skin disability is not otherwise related to service. Although he was treated for a rash on the scrotum and an infection of the left lower leg in service, such rashes apparently resolved prior to separation. As noted above, at separation, the Veteran denied skin diseases and the skin was shown to be normal on examination. Furthermore, both post-service medical and lay evidence indicates that his chronic skin condition did not begin until after service separation. In this regard, the Veteran testified during his April 2013 hearing that he first noticed the rash on his chest area after he returned home from service. Post-service medical evidence does not reflect skin problems for more than four decades after separation from active duty. The passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). On review, the most probative evidence is against a finding that the Veteran's skin disability is related to active military service or events therein. In making this determination, the Board finds that the Veteran has presented credible testimony regarding his skin symptoms since service. However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's post-service skin symptoms are related to in-service skin problems and/or herbicide exposure, this issue falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In this case, the Board has afforded greater probative weight to the only medical opinion of record - the October 2011 VA examination report. In that report, the VA examiner opined there was no evidence that the Veteran's current skin condition as described in the report is in any way related to the skin conditions documented with regards to the scrotum or the left leg while on active duty. He further stated that the onset of the Veteran's current condition as described in the report began sometime following his release from active duty. The opinion of the VA examiner was rendered after interview and physical examination of the Veteran. It is also well reasoned and consistent with the historical record. Given the foregoing, the Board finds that the claim of entitlement to service connection for skin disability must be denied. In reaching the conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the competent and probative evidence preponderates against entitlement to service connection for a skin disability that doctrine is not applicable. 38 U.S.C.A. § 5107(b). ORDER A timely NOD was not submitted as to the February 2009 rating decision which denied service connection for PTSD and this appeal is denied. Service connection for a skin disability, to include chloracne, is denied. REMAND The Veteran testified at the April 2013 Board hearing that he has been receiving group treatment for his PTSD at the VA on a monthly basis; he also indicated that he is evaluated on an individual basis every six months for possible medication. Review of the claims file reveals that records dated through May 14, 2012 have been obtained from the VA Nebraska Healthcare System. As it appears that additional relevant treatment records exist, a remand is necessary to obtain these outstanding records. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify all treatment that he has received for his service-connected PTSD. All identified treatment not already of record should be obtained. VA treatment records, including those from the Nebraska Healthcare System dated since May 14, 2012, should also be obtained and associated with the claims file. If records are identified but cannot be obtained this fact, as well as the efforts that were made to obtain the records, should be clearly documented in the claims file. The Veteran should also be notified of VA's inability to obtain the records. 2. Following any additional indicated development, the case should be reviewed on the basis of the additional evidence. All applicable laws, regulations, and theories of entitlement should also be considered. If any benefit sought on appeal remains denied, the appellant and his representative, if any, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant 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). ______________________________________________ STEPHANIE L. CAUCUTT Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs