Citation Nr: 1328530 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 09-31 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a stomach disorder. 2. Entitlement to service connection for a skin disorder, to include as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1970 to December 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2007 and December 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran and his wife testified at a Board hearing at the RO in St. Petersburg, Florida in January 2011. This transcript has been associated with the file. The case was brought before the Board in September 2011 at which time the claims were remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his appeal. The case was again before the Board in October 2012 and the claims were remanded again for further development, to include obtaining VA and private treatment records, affording the Veteran a new VA examination, and obtaining an addendum opinion from the November 2011 VA examiner. The Veteran's outstanding VA treatment records were obtained and associated with the claims file. After November 2012 notice, the Veteran did not identify any additional outstanding private treatment records. The Veteran was afforded a VA examination in November 2011 for his skin disorder. The November 2011 VA examiner also provided an addendum opinion in November 2012 regarding the Veteran's stomach disorder. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (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 preponderance of the evidence is against a finding that a stomach disorder is related to service. 2. The preponderance of the evidence is against a finding that a skin disorder is related to service, to include Agent Orange exposure. CONCLUSIONS OF LAW 1. A stomach disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 2. A skin disorder was not incurred in or aggravated by active military service, and may not be presumed to have been the result of exposure to Agent Orange. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in April 2007, October 2008, and November 2008. These letters advised the Veteran of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The letters also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Board provided the Veteran further notice during his January 2011 hearing and in subsequently issued remands. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that, pursuant to 38 C.F.R. § 3.103(c)(2), a Veterans Law Judge (VLJ) who chairs a hearing must satisfy two duties: (1) fully explaining the issue; and (2) suggesting the submission of evidence that may have been overlooked. The VLJ in this case satisfied both duties. She discussed the nature of this case and questioned the Veteran about his symptoms and treatment. Even assuming otherwise, due to the remands that followed, any decision to proceed in adjudicating this claim is harmless, not prejudicial to the Veteran or affecting the essential fairness of the adjudication of this claim. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Bernard v. Brown, 4 Vet. App. 384 (1993). In remands dated in September 2011 and October 2012, the Board further explained the nature of this claim by noting the deficiencies that existed in the various medical opinions of record. In addition, the Board specifically identified evidence that had been overlooked and emphasized the importance of obtaining that evidence and also an adequate opinion as to the etiology of the Veteran's disabilities. The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. The Veteran has not indicated that there are any additional outstanding records to be obtained. The duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was afforded a VA medical examination in November 2011, with an addendum opinion provided in November 2012, for his stomach disorder claim and in November 2012 for his skin disorder claim. These opinions were rendered by medical professionals following a thorough examination and interview of the Veteran and review of the claims file. The examiners obtained an accurate history. The examiners provided a detailed conclusion for the conclusions that were reached. Therefore, the Board finds that the examinations and opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A presumption also exists for certain diseases associated with exposure to herbicide agents, which may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). The term 'herbicide agent' means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases for which service connection may be presumed to be due to an association with herbicide agents include AL amyloidosis, chloracne or other acne form disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcoma other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, mesothelioma. Here, the Veteran has confirmed service in Vietnam during the Vietnam War era from May 1971 to May 1972 and is therefore presumed to have been exposed to herbicide agents. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). The Veteran asserts that his skin disorder was caused by exposure to Agent Orange in-service. As has been noted, the Veteran is presumed to have been exposed to Agent Orange. The Board observes that skin conditions, such as chloracne or other acneform disease consistent with chloracne, are on the list of diseases associated with herbicide agents. However, the Veteran has not been diagnosed with chloracne, or another acneform disease consistent with chloracne. While he has complained of various skin conditions, he has not been diagnosed with chloracne or another acneform disease which is consistent with chloracne; rather he has been diagnosed with skin cancer, specifically basal cell carcinoma. See 38 C.F.R. § 3.309(e). Therefore, the presumption is inapplicable here for the claimed skin disorder. While service connection may not be granted on a presumptive basis for the skin disorder, the Veteran is not precluded from establishing service connection with evidence that this disability was incurred during service or is otherwise related to service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As discussed below, the preponderance of the evidence is against the Veteran's claim on a direct claim and the appeal will be denied. The Veteran was afforded a medical examination at entrance to, and separation from, service in July 1970 and October 1973, respectively. At his entrance examination, there is no evidence of stomach or skin problems and the Veteran was found to be qualified for entrance to service. The Veteran specifically denied frequent indigestion or stomach trouble on his Report of Medical History. In January 1973 the Veteran was seen for complaints of a boil on his face and it was drained and treated. There is no follow up for this condition. In a December 1973 treatment record the Veteran was diagnosed with viral gastroenteritis after reporting with stomach cramps, chills, aches, and diarrhea. At the Veteran's separation examination, again there is no record of stomach or skin disorders. Ultimately, the Veteran was found qualified for separation. There is no diagnosis of a chronic stomach or skin disorder while the Veteran was on active duty. Even if a chronic condition was not shown during service, service connection may be established under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service. The Board has reviewed the Veteran's post-service treatment records, however there is no competent and credible evidence linking his stomach and skin disorder to service. After separation from service the Veteran has been treated for various stomach and skin disorders. On VA examination in October 1981, the Veteran was diagnosed as having intermittent episodes consistent with gastroenteritis with a negative evaluation by his local medical doctor and possible irritable bowel. In a March 1994 private treatment record the Veteran had an endoscopy which revealed duodenitis with a linear duodenal ulcer. In an August 1998 private treatment record the Veteran had a normal abdominal ultrasound. A separate August 1998 private treatment record also noted a small, pigmented lesion on the tip of the Veteran's nose may be skin cancer. VA examination in August 2007 revealed diagnoses of peptic ulcer disease and gastroesophageal reflux disease (GERD). In a December 2001 statement from the Veteran's private treatment provider it was noted he had a past history of skin cancer and sun exposure. At this appointment he had increased growths on his arms, neck, and face, and had a plaque on his left cheek biopsied. He also had multiple seborrheic keratosis which required no treatment and xerosis, for which he was given a prescription. In a February 2009 VA treatment record the Veteran was noted to have had a basal cell cancer lesion removed from his nose and two benign lesions removed from his neck in April 2001. The Veteran also reported having a benign lesion removed from his left check in 1976. At a November 2011 VA examination the Veteran reported that he began experiencing stomach problems in Vietnam in November 1971. He reported symptoms including vomiting, adnominal cramps, and diarrhea. He also reported having the same symptoms in May 1973 as when he was diagnosed with viral gastroenteritis in December 1973. He reported seeing a doctor 6-8 months after service with the same problems. The Veteran was diagnosed with gastroduodenitis, a hiatal hernia, with symptoms of gastroresophageal reflux disorder (GERD), and helicobacter pylori infection which had resolved. The examiner did not relate these conditions to service. Her rationale was that the Veteran's service treatment records were silent for gastritis, duodenitis, hiatal hernia, GERD, H. Pylori infection, or peptic ulcer disease. The Veteran's in service finding of viral gastroenteritis is defined by the Center for Disease Control as "inflammation of the stomach and small and large intestines." It is an "infection caused by a variety of viruses that results in vomiting or diarrhea. It is often called the stomach flu." The examiner also referred to other medical textbooks which stated that viral gastroenteritis was not caused by bacteria, or parasites, or medications, or other medical conditions. The symptoms begin 1 to 2 days following infection with a virus. In an addendum opinion provided in November 2012, the November 2011 VA examiner again opined that the Veteran's stomach disorders were not related to service. Her rationale was that there was no objective evidence of a stomach condition until 1994, over 20 years after separation from service. She again noted the Veteran was not diagnosed with any of his current stomach disorders while he was in service. She also stated that the viral gastroenteritis for which the Veteran was treated in service was acute and transitory and does not cause, place one at risk for, or aggravate any of the Veteran's current stomach conditions. She also stated that a review of the Agency for Toxic Substances and Disease Registry did not find any evidence that exposure to gas fumes cause, placed one at risk for, or aggravated any of the Veteran's current stomach disorders. At a November 2012 VA examination the Veteran was noted to have been diagnosed with sun damaged skin. He reported having basal cell carcinoma removed from his nose in 1989 and the examiner noted benign lesions excised from his chin and neck area. The Veteran was specifically noted to not have chloracne. The examiner opined that the Veteran's skin disorders were not related to service, to include presumed exposure to herbicides. Her rationale was that there was no evidence the Veteran had skin cancer during service and that there was no medical evidence relating the Veteran's reported non- melanoma skin cancer to service. The Board finds that the preponderance of the evidence is against the Veteran's claims for service connection. A chronic stomach or skin disorder was not diagnosed during service or for many years thereafter, and there is no competent and credible evidence of record showing that the conditions began in service. The Veteran reported that he has stomach disorders and skin cancer which were diagnosed post-service. The Veteran has also provided numerous statements indicating that he believes these conditions are due to his service or Agent Orange exposure. The Board finds that the Veteran is competent to report that he currently has various stomach disorders and has been treated for skin disorders post service. However, the Veteran has been inconsistent in his reports of having a stomach disorder and when it began. His statements regarding a skin disorder also do not correspond to the service treatment records. On his August 2009 VA Form 9 the Veteran reported that his stomach disorder symptoms began in Italy at some point during November 1970 to April 1971 before he left for Vietnam. However, at his January 2011 Board hearing the Veteran testified that his stomach disorder symptoms began in Vietnam when he experienced cramping and stomach pain. The Veteran also testified that he was treated for skin cancer in service. As noted, there is no record of this. Furthermore, while the Veteran was treated numerous times in service for health complaints, including before and after his tour of duty in Vietnam, he only reported a stomach and skin disorder on one occasion each. See e.g., March 1971 record for complaints of congestion, May 1971 record for complaints of an upper respiratory infection, October 1971 treatment for achy joints, March 1972 treatment record for nose trauma, August 1972 treatment record for an earaches, April 1973 record with complaints of reading discomfort. The inconsistencies weigh against the Veteran's contention that his stomach and skin disorders are related to service. Accordingly, the Board finds the Veteran's statements lack credibility and are assigned little probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a Veteran's statements, it may consider whether self-interest may be a factor in making such statements). Service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. The weight of the competent evidence does not attribute stomach or skin disorders to active duty. The Board has also considered the VA examiners' opinions that the Veteran's stomach and skin disorders are less likely than not related to service. The examiners reviewed the claims file, examined the Veteran, and offered thorough opinions and rationales. Accordingly, the Board assigns the examiners' opinions high probative value and weight. The Veteran's friend submitted a statement in September 2009 noting exposure to various gases and jet fuel while in service. He also reported becoming ill with stomach problems and headaches from breathing in the fumes. The Veteran testified in January 2011 that his stomach problems began in Vietnam and that he post service he has had symptoms one to two times a year. The Veteran's wife also testified that the Veteran's stomach problems began after service. The Veteran also testified that he had skin cancer in service and a skin cancer lesion removed post service in 1975. However, the most credible evidence of record shows that the Veteran's stomach and skin disorders are not related to service. The Board acknowledges that the Veteran believes he has these disorders as a result of his service. 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, diagnosing the etiology of stomach and skin disorders, this 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, given the Veteran's lack of medical expertise, his assertions that he currently has stomach and skin disorders that are related to service are beyond his competence. These statements are greatly outweighed by the VA examiners' negative opinions. Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection for stomach and skin disorders and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Entitlement to service connection for a stomach disorder is denied. Entitlement to service connection for a skin disorder is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs