Citation Nr: 1329305 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 06-17 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for arteriosclerotic heart disease. 2. Entitlement to service connection for a skin disorder, to include as due to herbicide exposure. 3. Entitlement to service connection for a prostate disorder. 4. Entitlement to service connection for a kidney disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to July 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The prostate, skin, and kidney issues are REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT The Veteran's heart disorder is not related to his military service, or to any incident therein. CONCLUSION OF LAW The criteria for entitlement to service connection for arteriosclerotic heart disease have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The RO's June 2005, March 2006, and June 2007 letters advised the Veteran of the elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The 2006 and 2007 letters also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman, 19 Vet. App. at 486. Thereafter, the claim was readjudicated several times, most recently in a May 2013 supplemental statement of the case. Accordingly, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran identified ongoing treatment with various private physicians. The Board previously remanded the claims to ensure all relevant, identified records were obtained, to the extent available. The VA sent the Veteran numerous letters, most recently in November 2012, asking the Veteran to either provide identified private treatment records or provide VA a release form to obtain these records on his behalf. The evidence of record contains private and VA medical records. To the extent there may be outstanding records, the Board concludes VA has satisfied its duty to assist the Veteran in obtaining these records. 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. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. With regard to service connection claims, 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. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was not provided a VA examination in connection with his heart disease claim, but the Board finds a VA examination unnecessary in this case. As will be explained in more detail below, the Veteran was first diagnosed with heart disease nearly three decades after separation from the military. There is no indication in the service treatment records or post-service records that the disease manifested itself in service or that any presumptive service connection regulation applies here. For these reasons, the Board concludes a VA examination could serve no useful purpose here. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. In general, in order to prevail on the issue of service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for chronic disorders, such as cardiovascular disease when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Here, the medical evidence specifically indicates diagnostic tests within normal limits until March 2000, where the Veteran was first diagnosed with ischemic heart disease. As such, the Board finds this presumption inapplicable here. Although the Veteran has not contended that his heart disorder is due to Agent Orange exposure, ischemic heart disease has been presumptively associated with exposure to certain herbicide agents. See 38 C.F.R. § 3.309(e). Under 38 C.F.R. § 3.307(a)(6), a veteran is presumed to have been exposed to certain herbicide agents, to include Agent Orange, if they served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. Here, however, the Veteran's DD-214 clearly indicates the Veteran never served in Vietnam. Rather, the Veteran served in Korea from April 1970 to May 1971 as a security policeman. Effective February 24, 2011, VA amended its adjudication regulations to extend a presumption of herbicide exposure to certain Veterans who served in Korea, as follows: A veteran who, during active military, naval, or air service, served 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] in an area in which herbicides are known to have been 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 Department of Defense (DoD) provided a list of units that have been recognized as having served in areas along the Korean demilitarized zone (DMZ). The Veteran in this case served in Korea during the relevant time period with a security specialist unit. However, his confirmed Air Force assignment is not among the list of units recognized as having served in areas along the Korean DMZ. For these reasons, the Board finds the Veteran cannot be presumed to have been exposed to Agent Orange herbicide. When a presumption is inapplicable, the Veteran is not precluded from establishing service connection on a direct basis. See 38 C.F.R. §§ 3.303, 3.304. In this case, the evidence of record does not contain any objective evidence of actual Agent Orange herbicide exposure. Service treatment records are silent as to any complaints, treatment, or diagnoses related to heart disease. The Veteran's April 1973 separation examination indicates a chest x-ray was within normal limits. After service, the Veteran underwent private diagnostic testing for complaints of shortness of breath and chest pain in 1998 and 1999. These tests all returned within normal limits. In March 2000, however, for the first time, the Veteran's private physician noted evidence of arteriosclerotic heart disease. The Veteran started seeking treatment at the VA in 2001, which continued to note arteriosclerotic heart disease, with a history of a coronary artery bypass. No medical professional has ever linked the Veteran's heart disease to his military service, or any incident of his military service. The Veteran indicated he was exposed to asbestos during his military service as a result of being in old buildings and dealing with old equipment in the military. While he does not indicate his heart disease was caused by asbestos, he does contend he was exposed to asbestos. Heart disease has not been identified by VA as a disease likely to result from exposure to asbestos. No medical professional has ever linked the Veteran's heart disease with claimed in-service exposure to asbestos. The Veteran's lay statements were considered. Lay statements are competent evidence relating to symptoms or facts of events that the witness observed and is within the realm of his or her personal knowledge, but such statements are not competent evidence to establish that which would require specialized knowledge or training, such as medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); but see Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) ("VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and holding that mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require VA to provide an examination). However, in this case, statements as to whether the Veteran's heart disorder is related to his military service is a complex medical question that does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge. See Jandreau, 492 F.3d at 1377. Here, the Veteran did not have heart related symptoms in the service or until decades later. While he has indicated a belief of in-service exposure to herbicide exposure, he has not provided any details in which any such exposure could be confirmed. His service in Korea in and of itself is insufficient to presume exposure to herbicide agents during his military service. See 38 C.F.R. § 3.307(a)(6)(iv). In short, the Veteran was first diagnosed with heart disease nearly three decades after service and no medical professional has ever related his heart disease to any incident of service. Accordingly, the Board concludes service connection for heart disease is not warranted. As reflected by the discussion above, the preponderance of the evidence is against the Veteran's claim of entitlement to a heart disorder. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for arteriosclerotic heart disease is denied. REMAND The Veteran claims entitlement to service connection for a prostate disorder, a skin disorder, and a kidney disorder. As noted above, in support of his claims, he has noted exposure to asbestos and herbicide agents while in service. The Veteran has never been afforded VA examinations in relation to these claimed disorders. For reasons stated below, the Board finds VA examinations are necessary to adjudicate these matters. The Veteran's service treatment records indicate the Veteran was seen frequently in the military complaining of blood in urine, burning urination, frequent urination, frequent nocturia, and/or urethral discharge. In October 1970, the Veteran tested positive for gonorrhea. At other times, diagnostic testing was negative. The Veteran was also treated for his skin in December 1970. At that time, he complained of bumps on his skin fearing he may have measles. On examination, the physician noted the Veteran had an allergy to certain soaps and water. Contact dermatitis was diagnosed. It is noteworthy at that same time, the Veteran complained of "weak kidneys" and frequent urination, but no specific findings were noted at that time. The Veteran's April 1973 separation examination does not indicate any chronic diagnoses related to the skin, kidneys, or prostate at the time of discharge. After service, private and VA treatment records confirm current diagnoses and treatment for various skin, kidney, and prostate disorders. Specifically, VA outpatient treatment records note a medical history of renal artery stenosis, with a 1998 renal stent placement, acne rosacea, and benign hypertrophy of the prostate, with urinary obstruction. In light of the Veteran's military records, the Board concludes VA examinations are necessary to ascertain whether any of the Veteran's current diagnoses are related to in-service treatment. The VA must also take this opportunity to obtain recent VA outpatient treatment records from March 2013 to the present as well as any other relevant private treatment records not currently in the claims folder. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include any VA or non-VA facilities at which he received treatment for the disorders at issue. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response, the RO must obtain VA outpatient treatment records from March 2013 to the present from the VAMC in Indianapolis, Indiana. All attempts to secure this evidence must be documented in the claims file by the RO and VA facilities must provide a negative response if no records are available. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. After all records are obtained to the extent available, the Veteran must be afforded VA examinations with appropriate specialists to determine whether any skin, kidney, or prostate disorder, to include acne rosacea, renal artery stenosis, and benign hypertrophy of prostate with urinary obstruction, is related to his military service. The claims file and all electronic records, to include on Virtual VA, must be made available to the examiners, and the examiners must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. All pertinent symptomatology and findings must be reported in detail, to include any and all current or previously diagnosed skin, kidney, or prostate disorder. Any indicated diagnostic tests and studies must be accomplished. Based on the clinical examination and appropriate diagnostic tests, the evidence of record, and with consideration of the Veteran's statements, the examiners must render an opinion as to the following: (i) Whether any currently or previously diagnosed skin disorder was incurred in service or otherwise due to his military service, to include in service treatment for contact dermatitis, and "allergy" to soaps and water used in the military; (ii) Whether any currently or previously diagnosed kidney disorder was incurred in service or otherwise due to his military service, to include in service treatment for frequent urination, burning urination, blood in urination, urethral discharge, gonorrhea, and frequent nocturia; (iii) Whether any currently or previously diagnosed prostate disorder was incurred in service or otherwise due to his military service, to include in service treatment for frequent urination, burning urination, blood in urination, urethral discharge, gonorrhea, and frequent nocturia. A complete rationale for all opinions must be provided. If the examiners cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiners must provide the reasons why an opinion would require speculation. The examiners must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiners must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report(s) prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The VA examination reports obtained must be reviewed by the RO to ensure that they are in complete compliance with the directives of this Remand. If any report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs