Citation Nr: 1331195 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-21 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a skin disability, to include seborrheic dermatitis and chloracne and as due to herbicide exposure. 2. Entitlement to service connection for condyloma acuminata, to include as due to herbicide exposure. 3. Entitlement to service connection for gout, to include as due to herbicide exposure. 4. Entitlement to service connection for hypertension, to include as due to herbicide exposure and as secondary to service-connected diabetes mellitus. 5. Entitlement to service connection for peripheral neuropathy of the upper extremities, to include as due to herbicide exposure and as secondary to service-connected diabetes mellitus. 6. Entitlement to special monthly compensation (SMC) under the provisions of 38 U.S.C. § 1114(s) from April 1, 2013. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to June 1970 with service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran's November 2009 notice of disagreement (NOD) also initiated appeals with respect to claims for entitlement to service connection for coronary artery disease (CAD) with atrial fibrillation and prostate cancer. Service connection for these disabilities was granted in a December 2010 rating decision. The award of service connection represents a full grant of the benefits sought on appeal and the claims for entitlement to service connection for CAD and prostate cancer are not before the Board. The issues of entitlement to service connection for hypertension, peripheral neuropathy of the upper extremities, and entitlement to SMC under 38 U.S.C.A. § 1114(s) is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have chloracne. 2. A chronic skin disability, currently diagnosed as seborrheic dermatitis, was demonstrated years after service and is not etiologically related to any incident of active duty service to include exposure to herbicides. 3. Condyloma acuminate was demonstrated years after service and is not etiologically related to any incident of active duty service to include exposure to herbicides. 4. Gout was demonstrated years after service and is not etiologically related to any incident of active duty service to include exposure to herbicides. CONCLUSIONS OF LAW 1. A chronic skin disability, currently diagnosed as seborrheic dermatitis, was not incurred in or aggravated by active military service and its incurrence or aggravation may not be presumed. 38 U.S.C.A. §§ 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Condyloma acuminate was not incurred in or aggravated by active military service and its incurrence or aggravation may not be presumed. 38 U.S.C.A. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. Gout was not incurred in or aggravated by active military service and its incurrence or aggravation may not be presumed. 38 U.S.C.A. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claims for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran 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"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)(holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). 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). Skin Disability and Condyloma Acuminata The Veteran contends that service connection is warranted for a chronic skin rash and condyloma acuminate (i.e. genital warts) as they were incurred due to a herbicide exposure during active duty service. The record clearly demonstrates the presence of current chronic skin disabilities; VA treatment records document diagnoses of contact dermatitis and condylomas during an August 2006 dermatology consultation and the Veteran has continued to receive treatment for intermittent eczematous rashes and condylomas at the Wilmington VA Medical Center (VAMC) throughout the claims period. Additionally, seborrheic dermatitis was diagnosed by a VA examiner following August 2010 and December 2011 examinations. The Veteran also contends that service connection is warranted for the specific skin condition of chloracne, a disease associated with exposure to certain herbicide agents and entitled to presumptive service connection for herbicide-exposed veterans under 38 C.F.R. §§ 3.307 and 3.309 (2012). Although the Veteran stated in the November 2009 NOD that he currently has chloracne, the Board finds that the weight of the competent evidence is clearly against a finding of the disability. VA treatment records documenting treatment for various skin conditions since June 2005 are negative for any medical findings of chloracne. The VA examiner who reviewed the claims file and physically examined the Veteran in August 2010 and December 2011 also found that chloracne was not present and there was no historical confirmation of the condition in the record. The Board has considered the Veteran's statements that he has chloracne, but finds that he lacks the necessary medical expertise to diagnose the specific skin condition. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). The Veteran is competent to identify and explain the symptoms that he observes and experiences, but a diagnosis of chloracne requires more than simple observation of symptoms. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Chloracne is a specific condition of the skin with symptoms similar to many other dermatological disabilities; it clearly requires specialized medical training and expertise to properly identify. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's statements are outweighed by the competent medical evidence of the record and the Board finds that the Veteran does not have chloracne. The Board must now determine whether the Veteran's diagnosed chronic skin conditions are due to active duty service. Service records are negative for any dermatological complaints or treatment and the Veteran's skin was normal at the June 1970 examination for separation. Although there is no documentation of a skin condition during service, the Veteran contends that service connection is warranted for his current skin disorders as due to herbicide exposure. Service records confirm the Veteran's presence in Vietnam during active duty from June 1969 to June 1970 and his exposure to herbicides is therefore presumed. An in-service injury is established. See 38 U.S.C.A. §§ 1116(f), 1154; 38 C.F.R. § 3.309(e); see also Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97. VA regulations provide for a presumption of service connection for certain disabilities associated with herbicide exposure under 38 C.F.R. §§ 3.307 and 3.309 (2012). The chronic skin conditions identified during the claims period, including seborrheic dermatitis and condyloma acuminate, are not subject to presumptive service connection under 38 C.F.R. §§ 3.307 and 3.309. However, the United States Court of Appeals for the Federal Circuit has determined that a Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, while service connection on a presumptive basis is not possible for the Veteran's claimed disabilities, the Board will determine whether service connection is warranted as directly due to active duty service and exposure to herbicides. Regarding the third element of service connection, a nexus between the Veteran's current disabilities and the in-service injury, service records do not indicate such a link. As noted above, service records are negative for any evidence of a chronic skin disorder and examination of the Veteran's skin was normal at the time of his separation in June 1970. Furthermore, there is no evidence of a chronic skin condition until years after the Veteran's discharge from military service. The earliest post-service evidence of complaints or treatment related to the skin dates from June 2005, 35 years after active duty, when the Veteran complained of a rash over his chest and back while incarcerated and was diagnosed with possible dermatitis was rendered. In July 2006, the Veteran established primary care at the Wilmington VAMC and was referred for a dermatological consultation to treat a tinea rash on his bilateral lower extremities. He reported a one year history of a rash along with warts in his groin during the August 2006 dermatological examination and was diagnosed with nummular versus contact eczema and condylomas. The absence of any clinical evidence for years after service weighs the evidence against a finding that the Veteran's skin conditions were present in service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). There is also no competent medical evidence in support of the claims for service connection. None of the Veteran's health care providers have attributed his chronic skin disorders to any incident of active duty service (including herbicide exposure), and the record contains a VA medical opinion weighing against the claim for service connection for a skin rash. The Veteran was provided VA examinations of his skin in August 2010 and November 2011 by the same examiner. At the examinations, he provided a history of treatment for a blotchy red rash soon after service in 1971 or 1972 as well as further dermatological evaluations in the 1980s. Although the VA examiner initially provided an opinion that it was at least as likely as not that the Veteran's seborrheic dermatitis is related to the "service condition of skin rash" (based on the Veteran's reports of a rash in 1971), it appears this opinion was based on the VA examiner's mistaken understanding that the Veteran was still serving on active duty at the time of his first reported skin treatment. The probative value of this opinion is negligible if it is based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). In addition, the rationale for the opinion was limited; the physician did not provide any specific evidentiary or medical basis for the opinion. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). In a follow-up examination performed in November 2011, the same VA examiner concluded that the Veteran's seborrheic dermatitis was not due to active duty service. The examiner provided an explanation, or rationale, for his conclusion: there was no treatment for skin problems during the Veteran's military service and his skin was normal at the June 1970 separation examination. The VA examiner's November 2011 medical opinion was based on an accurate presentation of the facts and history of the case, to include the Veteran's dates of active duty service, and was accompanied by a supportive rationale. It is therefore entitled to substantial probative weight. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (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). Service connection is also possible for certain chronic diseases under 38 C.F.R. § 3.303(b) based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, as the Veteran's diagnosed skin conditions are not chronic diseases listed in 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In any event, the Veteran has not reported a continuity of skin symptoms since service. The history he provided during the August 2010 and December 2011 VA examinations was to the effect that he first experienced skin problems a few years after service, but only experienced intermittent problems since that time. The Board has also considered the statements from the Veteran and his family linking his chronic skin disorders to active duty service. In support of his claim, the Veteran submitted August 2010 statements from his ex-wife and son, noting that he had no skin problems prior to his entry into military service and was told by several private physicians that his rashes were related to herbicide exposure during active duty. The August 2010 statement from the Veteran's son also notes that records from these physicians are not available for association with the record. Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The specific issue in this case, whether the Veteran has any chronic skin disabilities which are due to service, falls outside the realm of common knowledge of a lay person. Jandreau, 429 F.3d at 1377. The Veteran and his family are competent to report observable symptoms, but their opinion as to the cause of the symptoms simply cannot be accepted as competent evidence. Id. The Board therefore finds that the lay evidence in support of the claims is clearly outweighed by the medical opinions and objective medical evidence weighing against them. In sum, the post-service medical evidence of record shows that the first evidence of the Veteran's claimed skin rashes and condyloma was many years after his separation from military service. In addition, there is no competent evidence that the Veteran's current skin disorders are related to any incident of active duty, to include exposure to herbicides. The Board has considered the lay statements submitted by the Veteran in support of his claims, but finds that they are not competent evidence of a link between the claimed disabilities and service and are clearly outweighed by the competent medical evidence weighing against the claims. The Board therefore concludes that the evidence is against a nexus between the Veteran's claimed disabilities and his active duty service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claims and they are denied. 38 U.S.C.A. § 5107(b) (West 2002). Gout The Veteran contends that service connection is warranted for gout as it was incurred due to herbicide exposure during his active duty service in Vietnam. The record establishes the presence of a current disability; treatment records from the Wilmington VAMC document a diagnosis of gout on the Veteran's active problem list throughout the claims period, though the condition has been characterized as stable. An in-service injury is also demonstrated. While service records are negative for complaints or treatment for gout, as noted above, the Veteran's exposure to herbicides is presumed based on his military service in Vietnam. See 38 U.S.C.A. §§ 1116(f), 1154; 38 C.F.R. § 3.309(e); see also Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97. The first two elements of service connection-an current disability and in-service injury are therefore established. Although the first two elements of service connection are present in this case, the evidence does not establish a nexus between the Veteran's gout and an in-service injury. Service treatment records are wholly negative for any evidence of the claimed disability and the Veteran's lower extremities and laboratory findings were normal at the June 1970 separation examination. There is also no evidence of gout until years after service. While incarcerated, the Veteran reported the presence of gout in his right leg in November 2005, 35 years after discharge, but there is no earlier clinical evidence of the condition. Additionally, none of the Veteran's treating physicians have ever provided an opinion relating his gout to any incident of active duty service and there is simply no competent medical evidence in support of the claim. The Board has considered the statements of the Veteran linking his gout to herbicide exposure during service, but finds that with respect to gout, as a layperson he is not competent to provide an opinion addressing the medical etiology of the claimed disability. See Jandreau at 1376-1377; Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). The Board therefore concludes that the preponderance of the evidence is against the claim, and it must be denied. 38 U.S.C.A. § 5107(b) (West 2002). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in October 2008 and January 2012 letters. The Veteran also received notice regarding the disability-rating and effective-date elements of the claims in the October 2008 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice should be given before an initial AOJ decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. While complete VCAA notice, to include notice of the criteria necessary to substantiate a claim for secondary service connection, was provided after the initial adjudication of the claims, this timing deficiency was remedied by the issuance of VCAA notice followed by readjudication of the claims. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). The claims were most recently readjudicated in a February 2012 SSOC. Therefore, any timing deficiency has been remedied. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. Additionally, the Veteran was provided VA examinations in August 2010 and December 2011 in response to his claim for service connection for a chronic skin disorder. As explained above, the 2011 examination report is adequate for adjudication purposes. The Board acknowledges that the Veteran has not been afforded VA examinations or medical opinions in response to his claims for entitlement to service connection for condyloma acuminata and gout. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for getting an examination under the VCAA is low. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In this case, the record contains no competent evidence of a possible association between the Veteran's condylomas and gout and active duty service or a service-connected disability. The Veteran has not submitted any medical opinions or other medical evidence in support of his claim, and as a layperson, the Veteran's opinion regarding the etiology of his disabilities cannot be accepted as competent evidence. See Jandreau, 429 F.3d at 1377. Similarly, while a VA opinion has not been rendered regarding a possible relationship between the Veteran's claimed chronic skin condition and in-service herbicide exposure, there is simply no competent evidence to support this aspect of the claim. Therefore, additional VA examinations and medical opinions are not required by the duty to assist. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to service connection for a skin disability, to include seborrheic dermatitis and chloracne as due to herbicide exposure, is denied. Entitlement to service connection for condyloma acuminata, to include as due to herbicide exposure, is denied. Entitlement to service connection for gout, to include as due to herbicide exposure, is denied. REMAND The Board finds that additional development is necessary before a decision may be rendered with respect to the claims for entitlement to service connection for hypertension and peripheral neuropathy. Specifically, additional VA medical opinions are necessary in accordance with VA's duty to assist the Veteran in developing evidence to substantiate his claims. In response to his claims for service connection, the Veteran was provided VA examinations in August 2010 to determine the nature and etiology of the claimed hypertension and peripheral neuropathy of the upper extremities. The VA examiner diagnosed hypertension and peripheral sensory neuropathy and determined that the two conditions were not related to service-connected diabetes mellitus. The Board finds that the medical opinions proffered by the August 2010 VA examiner are not adequate as they do not address whether the service-connected diabetes aggravated the Veteran's hypertension and/or peripheral neuropathy. See 38 C.F.R. § 3.310. Furthermore, the examiner did not address whether the Veteran's disabilities were incurred due to the Veteran's presumed herbicide exposure during active service in Vietnam. Once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Thus, additional VA examinations are required by the VA's duty to assist. As a final matter, the Board notes that the claim for entitlement to SMC under the provisions of 38 U.S.C.A. § 1114(s) is inextricably intertwined with the pending claims for entitlement to service connection for hypertension and peripheral neuropathy. Accordingly, the case is REMANDED for the following action: 1. Provide the claims file to a VA examiner with the appropriate expertise to render medical opinions addressing the nature and etiology of the claimed hypertension. After reviewing the claims file, the examiner should answer the following questions: a) Is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's hypertension is etiologically related to any incident of active duty service, to include the Veteran's presumed exposure to herbicides during military service Vietnam? b) Is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's hypertension was aggravated (permanently worsened) by service-connected diabetes mellitus? The examiner must provide a full rationale (i.e. basis) for all expressed medical opinions. 2. Provide the claims file to a VA examiner with the appropriate expertise to render a medical opinion addressing the nature and etiology of the claimed peripheral neuropathy of the upper extremities. After reviewing the claims file, the examiner should answer the following questions: a) Is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's peripheral neuropathy is etiologically related to any incident of active duty service, to include the Veteran's presumed exposure to herbicides during military service Vietnam? b) Is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's peripheral neuropathy was aggravated (permanently worsened) by service-connected diabetes mellitus? The examiner must provide a full rationale (i.e. basis) for all expressed medical opinions. 3. Then, readjudicate the disabilities on appeal with consideration of all the evidence of record. If the benefits sought on appeal are not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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). ______________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs