Citation Nr: 1329311 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 10-01 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a bilateral foot skin disability, claimed as jungle rot of the feet. 2. Entitlement to service connection for a skin disability, claimed as tumors (lipomas) of the mouth, neck, arms, and legs. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to March 1971. He served in combat the Republic of Vietnam and his decorations include the Army Commendation Medal with "V" Device and Oak Leaf Cluster. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In October 2012, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In an April 2012 written statement, the Veteran asserted entitlement to an increased rating for service-connected posttraumatic stress disorder (PTSD). This issue is referred to the Agency of Original Jurisdiction (AOJ) for the appropriate development. In its January 2013 remand, the Board directed that the RO obtain any outstanding VA and non-VA treatment records, conduct a medical examination obtain medical nexus opinions and readjudicate the claim. Outstanding VA medical records were obtained in February 2013, the VA examinations were conducted in February 2013, an addendum nexus opinion was obtained in May 2013, and the appeal was readjudicated in May 2013. Because there has been substantial compliance with the directives of the January 2013 remand, an additional remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for a bilateral foot skin disability, claimed as jungle rot of the feet is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The Veteran's service treatment records show treatment for warts between October 1970 and December 1970, but no diagnosed skin disability, to include on service separation in February 1971. 2. The evidence does not relate the Veteran's lipomas to his military service or to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a skin disability manifested by lipomas have not been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). July 2007 and March 2008 letters satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The February 2013 VA examination and the May 2013 VA opinion addendum are together adequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examination recorded the Veteran's complaints and reports, conducted a complete physical examination, and addressed the etiology of the Veteran's lipomas on a direct basis; the May 2013 addendum addressed the secondary or proximate etiology question. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing the VLJ noted the elements that were lacking to substantiate the Veteran's claims. The Veteran was assisted at the hearing by an accredited representative who with the VLJ asked questions to ascertain the Veteran's disabilities' history and etiology. The record does not reflect that pertinent evidence that would substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2). Review of the record does not indicate that additional evidence pertinent to the issues adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset, frequency, duration, and severity of his symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). In his July 2007 claim, the Veteran asserted that his skin disability was related to his service-connected diabetes mellitus type 2. In his October 2008 notice of disagreement and December 2009 substantive appeal, he stated his belief that his skin disability was the result of herbicide exposure. Accordingly, consideration will be given to three theories of entitlement: a direct relationship to service, a presumptive relationship to service via herbicide exposure, and a secondary or proximate relationship to a service- connected disability, specifically the Veteran's diabetes mellitus. If a veteran were exposed to an herbicide agent during active military service, the following diseases will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service: 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), and AL amyloidosis. 38 U.S.C.A. § 1116(a) (2); 38 C.F.R. §§ 3.307(a) (6), 3.309(e); 74 Fed. Reg. 21,258 (May 7, 2009); 75 Fed. Reg. 53,202 (Aug. 31, 2010). The Veteran's service personnel records show service in Vietnam, for the purposes of the controlling regulations, from June 1969 to June 1970. Thus, he is presumed to have been exposed to herbicides. However, skin tumors (lipomas) are not among the conditions for which presumptive service connection is available based on herbicide exposure. 38 C.F.R. §§ 3.307, 3.309 (e) (2012). The only skin condition noted in the list of presumptive disease is chloracne, and the record does not establish that the Veteran has been treated for chloracne or that a diagnosis of chloracne has been made. Accordingly, service connection on a presumptive basis is not warranted. However, the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's service treatment records reflect removal of warts from the Veteran's arms and hands between October 1970 and December 1970. However, the Veteran's February 1971 service separation examination does not reflect clinical findings of a skin disability, and the Veteran denied a history of skin diseases and boils when he completed the February 1971 report of medical history. It is also important to note that the Veteran has not asserted that his lipomas onset in service. After service, the first records documenting lipomas are dated in March 2007 and April 2007; at the April 2007 visit, the Veteran reported that his lipomas first onset in the early 1990s. Physical examination showed freely mobile soft masses on his arms and the left side of his scalp, which the VA clinician found were consistent with lipomas. Lipomas were then listed as an ongoing diagnosis through November 2010, including at the August 2008 VA diabetes mellitus examination. However, the evidence does not establish a relationship between the Veteran's lipomas and his military service. the February 2013 VA examiner found that it was less likely than not that the lipomas were incurred in or caused by service, as they were not shown in service and first manifested many years later. This is confirmed by the April 2007 record that establishes the onset of the lipomas, by the Veteran's own report, in the early 1990s. Further, the August 2008 VA examiner, who noted the Veteran's lipomas on physical examination, found that the lipomas were consistent with neurofibromatosis, a genetically inherited disorder. Further, the preponderance of the evidence does not show that the Veteran's service-connected diabetes mellitus type 2 caused his lipomas or permanently worsened them to the extent it constituted aggravation. The May 2013 VA addendum opinion reflects that it is less likely than not that the Veteran's lipomas were the proximate result of, or had been aggravated beyond the normal disease process, by his diabetes mellitus type 2, based on the examiner's professional experience and review of pertinent medical literature, including Kliegman et al., eds., NELSON TEXTBOOK OF PEDIATRICS, 19th ed. (2011). On these bases, service connection for a skin disability manifested by lipomas is not warranted. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and service connection is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a skin disability, claimed as tumors (lipomas) of the mouth, neck, arms, and legs is denied. REMAND The January 2013 remand requested that a VA examination be conducted to determine the nature and etiology of the Veteran's bilateral foot skin disability. Unfortunately, review of the February 2013 VA examination report and the May 2013 VA addendum opinion reveals the examination was insufficient. Specifically, in noting that the service treatment records did not reflect treatment for jungle rot, the examiner appears not to have considered the Veteran's competent lay report that he experienced this condition in service; a Veteran's lay statement can be competent evidence of symptoms that are capable of lay observation. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). This is especially the case with skin conditions, of which lay assertions as to its existence and duration are especially probative. See Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002). Further, the examiner's physical examination found only onychomycosis, a fungal infection of the toenails, but no clinical evidence of "jungle rot" (also known as athlete's foot), so no consideration was given to the Veteran's past diagnoses of tinea pedis in August 2007 and macerated webspaces in May 2007 and August 2007. However, the Veteran has previously reported that his bilateral foot skin disability manifests only twice or three times per year. Further, the Court has taken judicial notice that skin disabilities, by their nature, are generally chronic and recurrent. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994). Thus, a new examination should be conducted during the active stage of the Veteran's bilateral foot skin disability so that relevant clinical findings may be obtained. Accordingly, the issue of entitlement to service connection for a bilateral foot disability is REMANDED for the following actions: 1. After associating any outstanding treatment records with the claims file, either in physical or electronic form, schedule the Veteran for a VA foot examination to determine the nature and etiology of the Veteran's bilateral foot skin disability. This examination should be conducted during the "active" stage of the Veteran's bilateral foot skin disability. After conducting a complete physical examination, the VA examiner should state whether it is at least as likely as not that the Veteran's bilateral foot skin disability had its onset during or is otherwise related to the Veteran's military service. The examiner is asked to consider the prior diagnoses of tinea pedis and macerated webspaces show in the May 2007 and August 2007 VA treatment records discussed above. The examiner should also address the Veteran's diagnoses of burning feet syndrome, associated with numbness and tingling of feet and ankles as documented in the VA treatment records beginning in April 2007 to include a July 2009 VA treatment record noting the Veteran's report of burning pain in his feet; the examiner should address whether these symptoms constitute peripheral neuropathy related to the Veteran's diabetes mellitus, or a discrete skin condition of the feet. The examiner must also acknowledge and discuss the Veteran's competent report of the onset of his disability. A complete rationale should be provided for any opinion expressed. 2. After undertaking the development above, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond. Then, return the appeal to the Board. 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). This claim must be afforded expeditious treatment. All claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs