Citation Nr: 1326744 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 07-25 679 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for a skin disability to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1969. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in August 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified during a hearing before the undersigned Veterans Law Judge in February 2010. A transcript of the hearing is of record. The Board remanded these matters in May 2010 and March 2013 for further evidentiary development. The RO continued the denial of the claims as reflected in the April 2013 supplemental statement of the case (SSOC) and returned these matters to the Board for further appellate consideration. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's headaches are not related to active military service to include herbicide exposure and are not caused by or aggravated by service-connected posttraumatic stress disorder (PTSD). 2. The Veteran served in the Republic of Vietnam and the medical evidence of record shows that the Veteran is currently diagnosed with hidradenitis, infection of the epidermis due to MRSA and Xerosis; however, the diagnosed skin disorders are not diseases associated with exposure to certain herbicide agents as enumerated under 38 C.F.R. § 3.309(e). 3. The preponderance of the evidence shows that the Veteran's current skin disabilities are not related to active military service to include herbicide exposure. CONCLUSIONS OF LAW 1. Headaches were not incurred in or aggravated during active service and it was not caused by or aggravated by PTSD. 38 U.S.C.A § 1110 (West 2002); 38 C.F.R §§ 3.303, 3.310 (2012). 2. A skin disability was not incurred in or aggravated during active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A §§ 1110, 1112, 1131 (West 2002); 38 C.F.R §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to a claim for service connection for a disability, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the claim: (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 of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. After careful review of the claims folder, the Board finds that letters dated in May 2005 and November 2007 satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, the May 2005 letter advised the Veteran what information and evidence was needed to substantiate his service connection claims for a skin disability and headaches. The letter also informed the Veteran of his and VA's respective duties for obtaining evidence. The letter requested that he provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran. The November 2007 letter informed the Veteran of how to substantiate his service connection claims on a secondary basis. The Veteran was not informed of the criteria for assignment of a disability rating and effective date in the event of award of a benefit sought. The errors with respect to those elements are harmless as the claims are being denied and, consequently, no disability ratings or effective dates will be assigned. The information provided in the May 2005 letter satisfied most of the duty to notify provisions prior to the initial AOJ decision in August 2005. However, the information provided in the November 2007 letter was provided to the Veteran subsequent to the initial AOJ decision. The Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, given sufficient time to respond and the AOJ readjudicated the case by way of the statement of the case issued in March 2008 after the notice was provided. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, private treatment records, VA treatment records, a VA examination report dated in April 2013 and lay statements and testimony from the Veteran. The April 2013 VA examination report reflects that the examiner conducted a review of the Veteran's claims file in addition to obtaining an oral history and providing an evaluation of the Veteran. Following the above, the examiner provided an assessment of the Veteran's headaches and skin disability and he provided an explanation for his opinion, which appear to be based on the evidence of record and reflects consideration of medical principles. Accordingly, the Board concludes that the examination is adequate for adjudication purposes. These issues were remanded in May 2010 to notify the Veteran that he should submit any private treatment records for his claimed skin disorder or provide VA with information sufficient that it might obtain the treatment records, obtain the Veteran's private treatment records with respect to the Veteran's headaches using the February 2010 release submitted by the Veteran and to obtain any outstanding treatment records. The claims file contains a letter dated in May 2010 requesting the Veteran to complete and return the enclosed release form to obtain private treatment records with respect to his skin disability or he may obtain and send this information to VA. The Veteran did not respond to the letter. There is a notation in the file that the February 2010 release had expired and the Appeals Management Center (AMC) sent another letter dated in April 2011 requesting that the Veteran inform VA of any private treatment records and to either return the enclosed release form or send the private treatment records to VA. The Veteran did not respond to this letter. The claims file also contains VA treatment records from February 2005 to December 2011. The March 2013 Board remand requested that the RO/AMC schedule the Veteran for a VA examination with respect to his skin disabilities and headaches. The record contains an April 2013 VA examination report that addresses the questions raised by the Board and it was supported by an adequate explanation. Accordingly, the Board finds that there has been substantial compliance with the May 2010 and March 2013 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. The Board finds that all relevant facts have been developed properly and sufficiently in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claims on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Merits of the Claims for Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection also may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Headaches The Veteran contends that his headaches are related to active military service. In particular, he asserts that his headaches began during service and/or are caused or aggravated by his service-connected PTSD. As noted above, in order for the Veteran to be entitled to service connection for headaches, the medical evidence must show a diagnosis of the claimed disability. A VA examination report dated in April 2013 shows that the Veteran has a diagnosis of simple headaches. Thus, the Veteran has a current diagnosis of the claimed disability. The Veteran's service treatments records reveal that the Veteran did not complain of, receive treatment for or was diagnosed with headaches during military service. Furthermore, the Veteran denied having or ever having frequent, severe headaches in a June 1968 report of medical history form. The separation examination dated in June 1969 shows that the Veteran had a normal neurological examination and he was not diagnosed with headaches. The first evidence that the Veteran complained of headaches is in his March 2005 claim for VA compensation. The Board observes that the Veteran contends that his headaches began during service with a continuity of symptoms since service. The Veteran is competent to report observable symptoms, such as pain. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). Nonetheless, the Veteran's current headaches are not listed as a chronic disease under VA regulations. See 38 C.F.R. § 3.309(a) (2012). Therefore, utilizing continuity of symptomatology in an effort to establish the second and third elements under 38 C.F.R. § 3.303(b) does not apply in this case. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a)). Furthermore, the competent medical evidence of record shows that the Veteran's simple headaches are not related to active military service. Specifically, a VA examiner in April 2013 provided the medical opinion that the Veteran's headaches are less likely than not incurred in or caused by military service. The examiner explained that the Veteran's military medical records are silent for in-service care for headaches. His discharge physical was also silent for in-service headaches. The Veteran informed the examiner that he has not presented his headache complaints to his providers and a review of the medical records support this statement. He also noted that the examination did not reveal a complex headache pattern and his assessment is that the Veteran has simple headache. The Board finds this opinion to be highly probative, as the VA examiner reviewed the claims file, examined the Veteran and provided a clear explanation for the opinion based on the evidence of record and medical principles. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). With respect to the issue of whether the Veteran's current headaches are secondary to his service-connected PTSD, the evidence of record reveals that there is a competent and probative medical opinion that is contrary to the Veteran's contentions. After reviewing the claims file and evaluating the Veteran, the VA examiner in April 2013 determined that the Veteran's simple headaches are less likely than not proximately due to, the result of or aggravated beyond its natural progression by the Veteran's service-connected PTSD. He explained that there is no evidence of in-service care for headaches and there are no post-service PTSD related headache care. Most mental health examinations of even the last five years do not have significant association with headache symptoms or much discussion that headaches are a chronic condition. He also noted that there are no medications the Veteran is taking for his PTSD that likely contributed to or caused his report of headaches. The examiner also explained that the general description of the Veteran's functional status during his mental health appointments does not reflect stress level from PTSD likely able to cause chronic morbidity in the form of headaches. His level of function as described today is fairly good. The examiner noted that the Veteran's tobacco and hypertension could contribute to the Veteran's simple uncomplicated headaches. The Board finds this opinion to be highly probative, as the VA examiner reviewed the claims file, examined the Veteran and provided a clear explanation for the opinion based on the evidence of record and medical principles. See Nieves- Rodriguez, 22 Vet. App. at 304 (2008). The Veteran contends that his headaches are related to active military service and/or caused by or aggravated by his service-connected PTSD. In this case, the Board finds that lay assertions regarding the etiology of the Veteran's headaches require special medical knowledge. The Veteran is not a licensed health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's current headaches and his military service or his service-connected PTSD. The only probative medical evidence of record asserts that the Veteran's headaches are not caused by or related to active military service or caused by or related to service-connected PTSD. In the light of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim. Therefore, the Veteran's claim of entitlement to service connection for headaches is not warranted. Skin Disability The Veteran contends his current skin disability is due to his active military service. Specifically, he asserts that his skin disability had its onset during military and/or it is caused by exposure to herbicides. In assessing the Veteran's claim, the Board must determine whether the Veteran has the claimed disorder. A private treatment record dated in February 2006 shows that the Veteran has a current diagnosis of hidradenitis and infection of the epidermis due to MRSA. An April 2013 VA examination reveals a diagnosis of Xerosis. Accordingly, the Veteran has a current diagnosis of a skin disability. In regard to the Veteran's claim of a skin disability as a result of exposure to Agent Orange, the Veteran must show the following in order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under Section 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specific time period prescribed in Section 3.307(a)(6)(ii). 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2012). The following diseases are associated with herbicide exposure for purposes of the presumption: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The Veteran contends that he was exposed to Agent Orange while he was stationed in Vietnam. The Veteran's DD Form 214 reveals that the Veteran had service in Vietnam for approximately 12 months between July 1966 and July 1968. Thus, the evidence shows that the Veteran had service in the Republic of Vietnam during the applicable presumptive period and therefore exposure to an herbicide agent is conceded. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). Nonetheless, hidradenitis, skin infection and Xerosis are not among the statutorily enumerated diseases set forth above for which presumptive service connection is available for veterans exposed to herbicide agents during active service. Accordingly, the Veteran's current skin disabilities are not entitled to the presumption of service connection due to exposure to Agent Orange. Notwithstanding the above, the United States Court of Appeals for the Federal Circuit has held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d F.3d 1039, 1043-44 (Fed. Cir. 1994). The Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to exposure to herbicides, but must also determine whether his disability is otherwise the result of active service. Thus, the fact that the Veteran may not meet the requirements of a presumptive regulation does not preclude him from establishing, in the alternative, service connection by way of proof of actual direct causation. The Veteran's service treatment records do not show any complaints of, treatment for or a diagnosis of a skin disability during active military service. The Veteran denied having or ever having a skin disease in a June 1968 report of medical history form. The June 1968 separation examination reveals that the Veteran's skin was evaluated as normal. The first evidence of the Veteran reporting a skin disability was in his March 2005 claim for service connection and the first medical evidence that indicates that the Veteran has a skin disability was in February 2006, approximately 38 years after military service. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service that resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board observes that the Veteran contends that his skin disability had its onset during service with a continuity of symptoms since service. The Veteran is competent to report observable symptoms, such as a skin rash. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). Nonetheless, the Veteran's current skin disabilities are not listed as a chronic disease under VA regulations. See 38 C.F.R. § 3.309(a) (2012). Therefore, utilizing continuity of symptomatology in an effort to establish the second and third elements under 38 C.F.R. § 3.303(b) does not apply in this case. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a)). Furthermore, the Board finds that the Veteran's statements that his skin disability had its onset in service are not credible as there are conflicting statements of record. Specifically, the Veteran testified during the Decision Review Officer hearing in July 2009 that his skin disability did not start until after he was discharged from service in 1969. He also denied having or ever having a skin disability in a report of medical history form as part of his separation examination in June 1968. With respect to the issue of whether the Veteran's current skin disabilities are related to active military service, the record contains a negative medical opinion. After reviewing the claims file, obtaining an oral history from the Veteran and physically evaluating the Veteran's skin, a VA examiner in April 2013 provided the opinion that it is less likely than not that the Veteran's current skin disabilities were incurred in or caused by military service. He explained that the Veteran's military medical records reveal no in-service skin condition and no residual condition at discharge. The examiner also observed that the Veteran has not been diagnosed with a presumptive skin condition associated with herbicide exposure and the examination did not reveal any present. He determined that he could not find any skin conditions to associate with military service or herbicide exposure. Furthermore, the Veteran's Xerosis, which was diagnosed during the VA examination, is not related to military service. The examiner's opinion is persuasive and probative as he provided an explanation that was based on medical principles and the evidence of record. See Nieves-Rodriguez, 22 Vet. App. at 304. The Board notes that the Veteran contends that his skin disability is related to military service to include herbicide exposure. The Veteran is competent as a lay person to report the onset of symptoms and the circumstances surrounding such. See Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). However, as noted above, the Board concludes that the Veteran's statements of the onset of his symptoms during service are not credible as he has provided conflicting statements of record. Furthermore, the Veteran is not competent to provide an opinion on a complex question such as the etiology of his skin disability to include as to whether it is related to herbicide exposure. The Veteran is not a qualified health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's current skin disability and active military service. Based on the evidence discussed above, the Board finds that the preponderance of the evidence is against the claim and the benefit of the doubt rule is not for application. See 38 U.S.C.A. § 5107. Accordingly, entitlement to service connection for a skin disability is not warranted. ORDER Entitlement to service connection for headaches is denied. Entitlement to service connection for a skin disability to include as due to herbicide exposure is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs