Citation Nr: 1328103 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 06-28 030 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for rheumatic heart disease. 2. Entitlement to service connection for a skin disorder. 3. Entitlement to service connection of diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to March 1969. From February 1968 to March 1969, he had service in the Republic of Korea. He was assigned to Company D, 335th Maintenance Battalion. His principal duties were as a general vehicle repairman. This case was previously before the Board of Veterans' Appeals (Board) in August 2009, March 2011, and December 2012. The appeal has been adequately developed and is ready for appellate review. FINDINGS OF FACT 1. In August 2009, the Board denied the Veteran's claim of service connection for rheumatic heart disease. 2. Evidence associated with the record since the Board's August 2009 decision is either cumulative or redundant and, by itself or in connection with evidence previously assembled, does not relate to an unestablished fact or raise a reasonable possibility of substantiating the claim of entitlement to service connection for rheumatic heart disease. 3. A skin disorder, diagnosed primarily as squamous cell carcinoma of the right ear, was first manifested many years after service, and the preponderance of the competent evidence of record is against a finding that it is in any way related to service. 4. Diabetes mellitus was first manifested many years after service, and the preponderance of the competent evidence of record is against a finding that it is in any way related to service. CONCLUSIONS OF LAW 1. The Board's August 2009 decision, which denied the Veteran's claim of entitlement to service connection for rheumatic heart disease, is final. 38 U.S.C.A. §§ 7103, 7104 (West 2002); 38 C.F.R. §§ 20.1100 (2009). 2. New and material evidence has not been received to reopen the Veteran's claim of entitlement to service connection for rheumatic heart disease. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. A skin disorder, diagnosed as squamous cell carcinoma of the right ear, is not the result of disease or injury incurred in or aggravated by service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 4. Diabetes mellitus is not the result of disease or injury incurred in or aggravated by service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for rheumatic heart disease, as well as the issues of entitlement to service connection for a skin disorder and for diabetes mellitus. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In May 2006, VA received the Veteran's claims, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claims, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection, as well as that for rating service-connected disabilities and for assigning effective dates, should service connection be granted. With respect to his application to reopen a claim of entitlement to service connection for rheumatic heart disease, VA informed the Veteran of the bases for the prior denial and advised him of the evidence necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). VA also informed him of the evidence necessary to support the underlying service connection claim. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claims. VA obtained or ensured the presence of the Veteran's service treatment and personnel records; records reflecting his treatment from December 2002 to July 2006 by or through the Family Practice Associates of Easley, P.A.; records reflecting his VA treatment or evaluation from June 2006 through January 2013; reports from the JSRCC, dated in June 2011 and April and July 2013; and a March 2013 statement from the Social Security Administration. On VA Form 9, dated in August 2006, VA offered the Veteran an opportunity to present additional evidence and argument at a hearing on appeal. However, to date, he has declined that offer. In its December 2012 remand, the Board directed the VA Appeals Management Center (AMC) in Washington, D. C. to obtain and associate any outstanding pertinent records with the claims file. Specific requests were to be made for the report of a January 2010 VA EKG; records reflecting the Veteran's treatment at the Columbia VA Medical Center (MC) since February 2012; and treatment records from Family Practice Associates of Easley reflecting the Veteran's treatment prior to December 2002 and after July 2006. Although the AMC did not specifically request the records from Family Practice Associates of Easley reflecting the Veteran's treatment prior to December 2002 and after July 2006, the failure to obtain such records amounted to no more than harmless error and resulted in no prejudice to the Veteran. Indeed, the Veteran does not contend, and the evidence on file does not show that those records substantiate any relationship between any of the claimed disorders and service. That treatment reportedly started many years after service. In a June 2006 response to a request for evidence, C. S., M.D., a physician with Family Practice Associates of Easley, stated that his office did not have records reflecting treatment from January 1970 through December 1979. Moreover, a substantial body of evidence on file, including the reports of VA Agent Orange protocol examinations in 2006 and 2009, does not show a relationship between any of the claimed disorders and service, even by history. The lack of records from Family Practice Associates of Easley reflecting the Veteran's treatment prior to December 2002 and after July 2006 would not affect the essential fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd and remanded on other grounds 444 F.3d 1328 (Fed.Cir. 2006). Further development to comply with the holding in Stegall would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant. Accordingly, such development will not be ordered. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). In developing the record, VA informed the Veteran of evidence other than official government records which he could use to substantiate his claim. In its May 2006 development notice to the Veteran, the RO noted that such records could include, but were not limited to, statements from people who knew him in service and knew of a particular disorder in service; reports of employment examinations: and reports of insurance examinations. Although he has presented an extensive body of post-service treatment records, he has not submitted any alternative forms of evidence to support any of his claims. Further development in this regard would also impose additional burdens upon the Board with no reasonable possibility of any benefit flowing to the Veteran. Soyini. Accordingly, such development is not warranted. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support any of his claims; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to an analysis of his appeal. Analysis Initially, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). Service connection may 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). For certain disabilities, such as malignant tumors, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of the veteran's discharge from active duty. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be presumed when VA determines that a particular disorder is the result of inservice exposure to herbicides, such as Agent Orange. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). Those disabilities include, but are not limited to, chloracne, diabetes mellitus, and ischemic heart disease, provided that they are manifested to a degree of at least 10 percent during the period following the last exposure. 38 C.F.R. § 3.309(e). A veteran who, as in this case, served on active duty between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). The Veteran's unit, Company D, 335th Maintenance Battalion is not among those units. M21-MR, VI.2.B.6.b. The Veteran nonetheless alleges that he was exposed to herbicides while stationed in Korea - primarily as a result of working along the DMZ in the Republic of Korea. Therefore, he maintains that service connection is warranted. After reviewing the record in light of the applicable law, the Board finds that the preponderance of evidence is against those claims Accordingly, the appeal is denied. The Veteran is competent to report what he experienced during and since the conclusion of his service. For example, he is competent to report that he had service on the DMZ in the Republic of Korea. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Federal Circuit Court discussing 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.307(b), and its prior holdings in Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)). Such cases may occur under the following circumstances: (1) when a layperson is competent to identify the medical condition, (2) when a layperson is reporting a contemporaneous medical diagnosis, or (3) when a lay person describes symptoms which are subsequently diagnosed by a medical professional. See Jandreau, supra. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, supra. In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999); Evans v. West, 12 Vet. App. 22 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30 (1993). Rheumatic Heart Disease In August 2009, when the Board denied the Veteran's claim of service connection for rheumatic heart disease, the evidence on file consisted of the Veteran's service treatment and personnel records; records reflecting his treatment from December 2002 to February 2006 by or through the Family Practice Associates of Easley, P.A.; and the report of a chest X-ray taken in conjunction with a June 2006 VA Agent Orange protocol examination. Although a March 2003 report from Family Practice Associates revealed a history of an irregular heart rhythm, and an October 2004 chest X-ray revealed mild atherosclerosis, the evidence was negative for any findings of rheumatic heart disease or for a nexus between the Veteran's heart disorder and service. Absent such findings, the Veteran did not meet the criteria for service connection. Therefore, service connection for rheumatic heart disease was not warranted, and the appeal was denied. As noted above, that decision became final. Generally, a claim which has been denied by the Board may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7105. The exception to this rule is 38 U.S.C.A. § 5108 which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA shall reopen the claim and review the former disposition of the claim. When a veteran seeks to reopen a final decision based on new and material evidence, the Board must first determine whether the veteran has, in fact, presented new and material evidence under 38 C.F.R. § 3.156. Evidence offered by a claimant to reopen a claim is presumed credible for the limited purpose of ascertaining its materiality. Justus v. Principi 3 Vet. App. 510, 512 (1992). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. If new and material evidence is presented, the Board may then proceed to evaluate the merits of the claim but only after insuring that the duty to assist the veteran in the development of his claim has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999). Evidence added to the record since the Board's August 2009 decision consists of records reflecting the Veteran's treatment through July 2006 at the Family Practice Associates of Easley, P.A.; records reflecting his VA treatment or evaluation from June 2006 through January 2013; reports from the JSRCC, dated in June 2011 and April and July 2013; and a March 2013 statement from the Social Security Administration. Such evidence is new in the sense that it has not previously been before the VA. However, it is not material as it does not tend to substantiate the claim beyond the record which existed in August 2009. Although the additional evidence shows the possibility of atrial fibrillation since 1991, the record remains negative for a diagnosis of rheumatic heart disease or a nexus between any heart disorder and service. The additional evidence is therefore essentially cumulative or redundant of the evidence on file in August 2009. Even when considered with the evidence previously of record, it does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for rheumatic heart disease. Because the additional evidence is not new and material, it is not sufficient to reopen the claim. Therefore, the appeal is denied. Absent a diagnosis of rheumatic heart disease, the Board does not reach any questions as to the etiology of the claimed disorder, such as the Veteran's contentions with respect to Agent Orange exposure. The Skin Disorder The Veteran's service treatment records, and the reports of his July 1967 service entrance examination and March 1969 service separation examination, are negative for any complaints or clinical findings of a skin disorder. Indeed, during his service entrance and separation examinations, he responded "No", when asked if he then had, or had ever had, skin disease, and the physical examinations showed that his skin was normal. A chronic, identifiable skin disorder, diagnosed as squamous cell carcinoma on his right ear was first manifested during VA treatment in December 2007. The Veteran contends that such disorder is the result of his alleged exposure to Agent Orange during his service along or near the DMZ in the Republic of Korea from February 1968 to March 1969. However, multiple attempts to confirm such exposure through the JSRCC have met with negative results. The JSRCC found that the Veteran's unit was stationed approximately 27 miles from the DMZ and that its mission was to support units in the area of Seoul, approximately 26 miles from the DMZ. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim that he was ever at or near the DMZ or that he ever had exposure to herbicides such as Agent Orange. In addition, the Board notes that squamous cell carcinoma is not a disorder which may be presumed to be the result of exposure to Agent Orange. A presumption of service connection for a particular disability based on exposure to Agent Orange does not attach, unless specifically so determined by the Secretary of VA. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42,600 (June 24, 2002). To date, the VA Secretary has not found that squamous cell carcinoma is a residual of Agent Orange exposure. 38 C.F.R. § 3.309(e). In fact, based on cumulative scientific data reported by the National Academy of Science since 1993, the Secretary has determined that there is no positive association between herbicide exposure and skin cancer. M21-1MR, IV.ii.2.C.10.j. While that does not preclude a Veteran from establishing service connection through direct causation, that has not been shown in this case. See Brock v. Brown, 10 Vet. App. 155 (1997). Because there is no evidence of a chronic, identifiable skin disorder in service and the preponderance of the evidence is against a nexus between the Veteran's post-service squamous cell carcinoma and service, the Veteran does not meet the criteria for service connection for a skin disorder. Accordingly, service connection is not warranted, and the appeal is denied. Diabetes Mellitus A further review of the evidence is negative for any complaints or clinical findings of diabetes mellitus in service. During his service entrance and separation examinations, he responded "No", when asked if he then had, or had ever had, sugar or albumin in his urine. A urinalysis was negative for elevated sugar levels, and the Veteran's endocrine system was found to be normal. Evidence, such as the report of the Veteran's June 2006 VA Agent Orange protocol examination, discloses that the Veteran's diabetes mellitus was first manifested in the 1990's, many years after his separation from service. Normal medical findings at the time of the Veteran's separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against a finding of service connection on a direct basis. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (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 which resulted in any chronic or persistent disability.); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). As with his skin disorder, the Veteran's contentions is that his diabetes mellitus is the result of his inservice exposure to Agent Orange. While diabetes mellitus is presumed to be the result of Agent Orange exposure, the foregoing discussion shows that the Veteran did not have such exposure in service. Other than the Veteran's lay opinion, there is no evidence of a relationship to service. In this regard, the Board finds that the etiology of diabetes mellitus is, generally, outside the knowledge of a layman. Jandreau. Therefore, the preponderance of the evidence is against the claim. Because there is no evidence of diabetes mellitus in service, and because the preponderance of the evidence is against a finding of a nexus between the Veteran's post-service diabetes mellitus and service, the Veteran does not meet the criteria for service connection. Accordingly, service connection for diabetes mellitus is not warranted, and the appeal is denied. Additional Considerations In arriving at these decisions, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the Veteran's claims. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER New and material evidence not having been presented, the application is denied to reopen the Veteran's claim of entitlement to service connection for rheumatic heart disease. Entitlement to service connection for a skin disorder is denied. Entitlement to service connection of diabetes mellitus is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs