Citation Nr: 1323204 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 07-38 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a skin disorder, manifested by cysts and lipomas, to include as a result of exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active service with the United States Navy from November 1965 to June 1969 during the Vietnam era. His awards and decorations include the Vietnam Service Medal with three bronze stars, the Republic of Vietnam Campaign Medal with Device, the Navy Unit Commendation Ribbon Bar and the Armed Forces Expeditionary Medal (Korea). This matter comes before the Board of Veterans' Appeals (Board) from an October 2005 rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for cyst/lipomas associated with herbicide exposure. In June 2011, the Board also denied service connection for a skin disorder, manifested by cysts and lipomas, to include as a result of in-service exposure to herbicides. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Subsequently, the parties filed a Joint Motion for Remand (Joint Motion), which the Court then granted by Order and Mandate dated in March 2012. In January 2013, the Board remanded the claim for further development in accordance with the directives outlined in the Joint Motion. The case has now been returned for appellate review. Substantial compliance with the January 2013 remand has been accomplished. As such, another remand is not necessary. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDINGS OF FACT 1. The Veteran served on the USS Providence in the offshore waters of Vietnam. His service did not include duty in, or visitation to, Vietnam. The deck logs and other ship information pertaining to the USS Providence does not establish that the ship operated in the inland waterways of Vietnam during the Vietnam era during the Veteran's period of duty, and the Veteran has neither asserted, nor demonstrated, that he left the ship or that he set foot on land in Vietnam. 2. The Veteran did not serve along the demilitarized zone (DMZ) in Korea during the period from April 1968 through August 1971. 3. Exposure to Agent Orange may not be presumed. 4. The Veteran's cysts and lipomas are not a disorder that has been determined to be presumptively related to Agent Orange. 5. It has not been shown, by competent medical, or competent and credible lay evidence, that the Veteran's skin cysts and lipomas had their onset during service or that they were due to or aggravated by any other service-related incident, to include Agent Orange exposure. CONCLUSION OF LAW A skin disorder, manifested by cysts and lipomas, was not incurred in or aggravated by active service, and may not be presumed to have been so incurred, including as a result of exposure to herbicides. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.313 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims for increased ratings. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). The Court held that VA must inform the claimant of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Court has also observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). In a letter dated in July 2005, issued prior to the rating decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need to advise VA of, or submit any further medical evidence relevant to, the claims. The Board is aware of the considerations of the Court in Dingess supra, regarding the need for notification that a disability rating and an effective date for the award of benefits will be assigned if service connection or increased ratings are awarded. Because in this case however the service connection claim in question is being denied, such matters are moot. Finally, in a January 2013 letter, the Veteran was informed that he could submit a "buddy statement" in support of his assertion that he was exposed to Agent Orange as directed in the Joint Motion. See VA Adjudication Procedures Manual (M21-1MR), pt. IV, subpt. ii, ch. 1. The Veteran has not demonstrated any other error in VCAA notice, including in the Joint Motion; therefore the presumption of prejudicial error as to such notice does not arise. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Accordingly, the Board finds that the duty to notify provisions have been satisfactorily met, and neither the Veteran nor his representative has pointed out any specific deficiency to be corrected. Furthermore, the Board concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records, VA medical records and private medical records are in the file. Deck logs of the USS Providence (CLG 6) as well as information pertaining to the ship from the National Archives have been obtained in accordance with the Joint Motion. See VA Adjudication Procedures Manual (M21-1MR), pt. IV, subpt. ii, ch. 1, sec. H(28)(i). The Veteran did not respond to the January 2013 letter that informed him that he could submit a "buddy statement" in support of his assertion that he was exposed to Agent Orange - and there is no indication that the recent mailings to the Veteran have been undeliverable. In this regard, the Board observes that the duty to assist is not always a one-way street; if a Veteran desires help with his claim he must cooperate with VA's efforts to assist him. Wood v. Derwinski, 1 Vet. App. 190 (1991). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. In considering the factors at issue here, the Board finds that a VA examination is not warranted. Here, there is no indication that the Veteran's skin condition, manifested by cysts and lipomas, may be associated with his military service. Indeed, as discussed below, there is no competent evidence of in-service events related to any skin disorder, nor has he provided competent and credible evidence of continuity of symptomatology since separation from service. Finally a February 2006 progress note determined that there was no medical basis for finding a causal relationship between the cysts/lipomas and herbicide exposure. The Veteran has presented no competent medical evidence to the contrary. Thus, the Board finds that VA's duty to assist has been adequately met and a remand would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540 (1991) (a remand is inappropriate where there is no possibility of any benefit flowing to the veteran). II. Law and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Evidence of continuity of symptomatology of a disability identified in 38 C.F.R. § 3.309(a) from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Certain chronic disabilities, such as cancer, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). With regard to disabilities a veteran attributes to exposure to Agent Orange, the law provides that for veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending May 7, 1975, service connection may be presumed for certain diseases enumerated by statute and regulations that become manifest within a particular period, if any such period is prescribed. The specified diseases includes chloracne, but not cysts or lipomas. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2012); 38 C.F.R. § 3.309(e) (2012); 75 Fed. Reg. 53,202 (Aug. 31, 2010). "Service in Vietnam" for purposes of applying the herbicide presumption includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962 to May 7, 1975. 38 U.S.C.A. § 1116(a)(3) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2012). In fact, the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a decision in Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008), where it confirmed VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption. A veteran who never went ashore from ship on which he served in Vietnamese coastal waters was not entitled to presumptive service connection due to alleged Agent Orange/herbicide exposure. Haas, 525 F.3d at 1193-1194. See also VAOPGCPREC 7-93 [holding that service in Vietnam does not include service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace]; and VAOPGCPREC 27-97 [holding that mere service on a deep-water naval vessel in waters off shore of the Republic of Vietnam is not qualifying service in Vietnam]. In addition, the Federal Circuit in Haas held that "service in Vietnam" will not be presumed based upon the veteran's receipt of a Vietnam Service Medal (VSM). Haas, 525 F.3d at 1196. In September 2010, the Veterans Benefit Administration issued a Training Letter detailing the procedures for adjudicating claims based on herbicide exposure from Navy veterans. The training letter explained that such vessels as gun line ships, aircraft carriers and supply and support ships were referred to as "Blue Water" navy as they operated in the blue-colored waters of the open ocean. Smaller vessels based along the close coastal waters or within the inland waterways of Vietnam were referred to as the "Brown Water" navy as they operated on the muddy, brown-colored inland waterways of Vietnam. Service aboard a ship that anchored temporarily in an open deep water harbor or port is not sufficient. Open water ports such as Da Nang, Cam Ranh Bay, and Vung Tau are considered extensions of ocean waters and not inland waterways. They are not considered similar to the rivers, canals, and estuaries that make up the inland waterway system. VAOPGCPREC 27-97. Additionally, after careful review of an Institute of Medicine (IOM) report, ''Blue Water Navy Vietnam Veterans and Agent Orange Exposure,'' the Secretary of VA determined that the evidence available at this time does not support establishing a presumption of exposure to herbicides for Blue Water Navy Vietnam Veterans. See 77 Fed. Reg. 76170 (Dec. 26, 2012). In addition, the United States Department of Defense (DoD) has confirmed that Agent Orange was used from April 1968 through August 31, 1971 along the demilitarized zone (DMZ) in Korea. DoD defoliated the fields of fire between the front line defensive positions and the south barrier fence. If it is determined that a veteran who served in Korea during this time period belonged to one of the units identified by DoD, then it is presumed that he or she was exposed to herbicides containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) (2012) will apply. See 38 C.F.R. § 3.307(a)(6)(iv) (2012); MR21-1MR, Part VI, Chapter 2, Section B. In essence, if the Veteran did not serve in the Republic of Vietnam during the Vietnam era, or in a specific unit or ship stationed in the DMZ in Korea during the period from April 1968 through August 31, 1971, actual exposure to herbicides must be verified through appropriate service department or other sources in order for the presumption of service connection for a herbicide-related diseased under 38 C.F.R. § 3.309(e) to be applicable. Exposure to herbicides is not presumed in such instances. However, once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. The Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Proof of direct service connection between exposure and disease entails showing that exposure during service actually caused the malady which developed years later. Actual causation carries a very difficult burden of proof. Combee, 34 F.3d at 1042. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In adjudicating a claim, the Board must assess the competence and credibility of the claimant. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Additionally, competency of evidence must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). If all the evidence is in relative equipoise, the benefit of the doubt should be resolved in the claimant's favor, and the claim should be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). However, if the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he developed cysts and lipomas as a result of herbicide exposure in service. He claims that he was exposed to Agent Orange when his vessel, the USS Providence (CLG 6) entered the official waters of Vietnam during the period he was on the ship from December 1966 to November 1968 and also when he served in Korea from January 1968 to March 1968. The service department records have confirmed the Veteran's service on the ship. Additionally, pursuant to the Board's January 2013 remand, deck logs from the vessel were obtained for the period from December 1966 to November 1968 as well as timeline of the ship's movement from the National Archives, in accordance with VA Adjudication Procedures Manual (M21-1MR), pt. IV, subpt. ii, ch. 1, sec. H(28)(i). These documents confirm that the ship operated in the blue waters off the coast of Vietnam, including stops in Cam Rahn Bay, DaNang, Cap Lay, and Hue. However, the logs and other records do not show that personnel aboard the ship were sent in-country. In this regard, the Board observes that the Veteran's statements have been thoroughly reviewed. However, none of his submitted statements actually allege that he actually set foot in-country in Vietnam, or that he was sent from the USS Providence to shore for any specific mission. They detail his extensive, meritorious and decorated service in support of combat operations in the blue waters of Vietnam. Moreover, upon remand in January 2013, he was given the opportunity to submit "buddy statements" to support any allegation that he set foot in-country in Vietnam during his military service aboard the USS Providence, but he failed to respond to the letter. See Wood, supra. The Veteran's accounts of his Vietnam service are consistent with the deck logs and other information obtained in the development of his claim, including participation in extensive and essential combat operations in support of other military units - but they do not establish that he had any in-country service in the Republic of Vietnam during the Vietnam era, which is necessary in order for exposure to Agent Orange to be presumed. In contrast, during his period of service, his ship remained in the open deep water harbor or ports that are considered extensions of ocean waters and not inland waterways. See VAOPGCPREC 27-97. In VA Blue Water Claims Update 10, it was noted that the USS Providence operated on the Saigon River for three days during January 1964. However, this is clearly outside the Veteran's period of active duty as well as outside his service aboard the ship. The record also reflects that the Veteran was awarded an Armed Forces Expeditionary Medal during service, which his DD 214 clearly shows was given for service in Korea. However, although he asserts that he was exposed to herbicides in Korea between January 1968 and March 1968, these dates do not fall within the requisite service period for which exposure to Agent Orange is presumed. Rather, the spraying of Agent Orange along the DMZ in Korea did not begin until April 1968, about one month after his ship left the area. Consequently, under the facts presented here, the Board concludes that exposure to Agent Orange in the Republic of Vietnam during the Vietnam era, or in any other location, may not be either presumed or conceded. Notably, the Board observes that cysts and lipomas are not among the disabilities that have been determined to be associated with exposure to herbicides such as Agent Orange. 38 C.F.R. § 3.309(e). Thus, the presumption afforded under 3.309(e) could provide the basis for a grant of service connection, even if exposure were presumed. 38 C.F.R. §§ 3.307, 3.309. Accordingly, the Veteran's claim for service connection pursuant to the presumptive provisions pertaining to Agent Orange exposure and disease development must be denied. The Veteran's service treatment records include no indication of complaints regarding, treatment for, or diagnoses of, skin cysts or lipomas during his period of active duty, and skin cancer was not manifest within the one year presumptive period following his separation from service in 1969. Moreover, the claims folder is devoid of any relevant treatment records or other medical documents until 1998, 29 years after service discharge, when the Veteran underwent surgical removal of epidermal inclusion cysts from the upper mid back and lower back. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim); Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). The physician did not specifically relate the cysts to service, to include herbicide exposure, nor did subsequent doctors who treated the Veteran. A VA progress note shows that the Veteran was seen during a dermatology consultation in February 2006. He gave a history of multiple epidermal inclusion cysts and was "wondering" if they could be related to Agent Orange. The examiner concluded that epidermal inclusion cysts were not recognized as being caused by Agent Orange exposure. As discussed above, without an in-service disease or injury, the Board is not obligated to provide the Veteran with an examination or obtain any further opinion on the matter. He has not submitted a competent medical statement relating his currently manifest skin disorder to his military service. To the extent that the Veteran may allege a causal relationship, the Board notes that such statements are beyond his competence. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In the absence of any persuasive and probative evidence that the Veteran's current cysts and lipomas are etiologically related to active service, service connection is not warranted and the claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hence, the claim must be denied. ORDER Service connection for a skin disorder manifested by cysts and lipomas, to include as a result of exposure to herbicides, is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs