Citation Nr: 1334164 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-48 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for renal cancer, to include as due to herbicide exposure. 2. Entitlement to service connection for residuals of jungle rot, left foot, to include as due to herbicide exposure. 3. Entitlement to service connection for hypothyroidism, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from March 1964 to March 1966. This matter comes to the Board of Veterans' Appeals (Board) from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In January 2012 the Board remanded the Veteran's claim for the Veteran to be scheduled for a Board hearing. The Veteran testified before the undersigned Veterans Law Judge at an April 2013 video conference hearing, and a transcript of that hearing is of record. The Board again remanded the claim in June 2013 to obtain Social Security disability records. The claim has since been returned to the Board for further appellate action, and the Board is satisfied there was substantial compliance with its remand order. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The issue of service connection for renal cancer 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 is presumed to have been exposed to herbicides in service due to his service in the Republic of Vietnam during the Vietnam era. 2. The Veteran's hypothyroidism is not related to service, to include as due to herbicide exposure. 3. The Veteran does not have a current left foot disability that was incurred in or caused by service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for hypothyroidism have not been met. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1113, 1116, 1153, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). 2. The criteria for establishing service connection for residuals of left foot "jungle rot" have not been met. 38 U.S.C.A. §§ 1101 , 1110, 1112, 1113, 1116, 1153, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Presumptive service connection may also be established for certain diseases associated with exposure to an herbicide agent. To qualify, the Veteran must have been exposed to an herbicide agent during service. A Veteran is deemed to have been exposed to an herbicide agent if he served in the Republic of Vietnam between January 9, 1962, and May 7, 1975. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii); McCartt v. West, 12 Vet. App. 164 (1999). Service department records show the Veteran served in Vietnam from October 1965 to March 1966, therefore exposure to Agent Orange is presumed. However, the evidence does not show the Veteran has any of the diseases eligible for presumptive service connection due to herbicide exposure, namely: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin's disease; ischemic heart disease; 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 (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2013). Accordingly, service connection cannot be granted on a presumptive basis under 38 C.F.R. § 3.307. Where service connection based on herbicide exposure cannot be presumed, service connection due to such exposure still may be established with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. A. Hypothyroidism The Veteran contends he has hypothyroidism a result of service, to include as a result of exposure to Agent Orange. The Veteran's service treatment records include no complaint of or treatment for hypothyroidism. Private treatment records from 1996 reflect that the Veteran was diagnosed with hypothyroidism at that time. In a July 2009 statement the Veteran stated that he has taken various thyroid medications for hypothyroidism including Iodoral for the last two to three years. Thus, although the evidence suggests the Veteran has a current disability in the form of hypothyroidism, the evidence does not show that it either had its onset during or as a result of service, to include due to exposure to Agent Orange. There is no medical opinion evidence of record as to whether the Veteran's hypothyroidism is related to his service, to include exposure to Agent Orange. However, the Veteran cited to a study suggesting a positive link between Agent Orange exposure and Graves' Disease in support of his claim. The Board has considered the study but finds it has little probative value as to causation in this case as Graves' Disease is a separate condition than hypothyroidism. In fact, Graves' Disease causes the thyroid to become overactive, while hypothyroidism is exactly the opposite. Furthermore, the study found that the prevalence of hypothyroidism was lower in those exposed to Agent Orange than not exposed. Although the Veteran has offered his own opinion that his hypothyroidism is related to his service, specifically exposure to Agent Orange, he has not demonstrated that he has any knowledge or training in determining the etiology of such a condition. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, 10 Vet. App. 183 (1997). The Board finds that the question of whether the Veteran's hypothyroidism is due to his herbicide exposure in service is too medically complex to be addressed by a layperson. Therefore, the Veteran's opinion of the etiology of his hypothyroidism, however sincere, is not competent evidence and is not probative. As the evidence does not show that the Veteran's hypothyroidism had its onset in service or for many years after service or that it was caused by or related to his service, entitlement to service connection must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert, 1 Vet. App. 49; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). B. Jungle Rot The Veteran contends he has residuals of jungle rot on his left foot as a result of service, to include as a result of exposure to Agent Orange. The Veteran's service treatment records show that the only skin condition he complained of in service was acne. The Veteran's feet and skin were found normal on his separation examination in March 1966, although the Veteran reported a history of skin disease. The type of skin disease was not identified. However, in a July 2009 statement, the Veteran contended he had "jungle rot" on his left foot during service. He said he sought medical treatment and was told to air his foot out, was prescribed medicated cream, and was given light colored socks to wear. He reported his foot would break open and bleed. The Veteran stated that when he returned home he was prescribed an antibiotic and steroid by a private doctor that cleared up the jungle rot and his foot returned to a normal color after five to six years. He stated that the doctor was no longer in practice and those records were not available. At a 1997 state disability determination examination no abnormalities were noted on the Veteran's extremities and the Veteran's only complaint with regard to his left foot was in connection with an injury that included fracturing his toe. Examination of the feet explicitly showed no edema, ulcers, dermatitis or deformities. At his April 2013 Board hearing the Veteran testified that the only issue he continues to have with his left foot is that it "perspires a lot." He reported he wears white socks and keeps powder on his foot. Thus, the Veteran himself does not contend he currently has "jungle rot," only that his left foot is sweaty, a symptom he attributes to being a residual of the jungle rot he contends he incurred in service. The Board notes that the Veteran's service treatment records do not reflect that the Veteran ever sought treatment for a left foot skin condition in service, nor are post-service treatment records available showing treatment for a skin condition. Further, his feet were found normal on his examination at discharge from service, all of which weigh against the Veteran's claim that he incurred "jungle rot" in service. Regardless, the Veteran has indicated the skin condition resolved decades ago. Although he claims his current symptom of sweaty foot is a residual symptom, no competent medical opinion evidence is of record diagnosing the Veteran with a current left foot condition or connecting his foot being sweaty to his claimed jungle rot in service. Although the Veteran has opined as such, the Board finds he is not competent as a layperson to do so. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) ; see also Jandreau, 492 F.3d at 1376-77. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the Veteran's claim must be denied. Gilbert, 1 Vet. App. 49; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in June 2007. In the letter, the RO informed the Veteran of what evidence was required to substantiate his claims for service connection, to include as a result of herbicide exposure, and of the Veteran's and VA's respective duties for obtaining evidence. In the letter the RO also provided notice with regard to how VA assigns disability ratings and effective dates in the event that service connection is established. Thus, the duty to notify has been satisfied. Also, in Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They 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. In this case, during the April 2013 Board personal hearing, the VLJ fully explained the issues on appeal. The Veteran was assisted at the hearing by an accredited representative from the Vietnam Veterans of America, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed conditions. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim, and specifically inquired as to Social Security disability records and what attempts the Veteran had made to obtain private treatment records from a doctor no longer in practice. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records and private treatment records identified by the Veteran. The Veteran also submitted a lay statement. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that is obtainable that has not been obtained. The Veteran was not afforded a VA examination of his claimed residuals of left foot "jungle rot" or hypothyroidism, but none is required. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, the only evidence linking the Veteran's hypothyroidism and sweaty left foot to his military service is his own conclusory generalized lay statements, which are unsupported by even speculative medical evidence. Accordingly, the Board finds that referral for a VA medical examination is not warranted. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for hyperthyroidism is denied. Service connection for residuals of jungle rot, left foot, is denied. REMAND Unfortunately, remand of the Veteran's claim for service connection for renal cell carcinoma is warranted. Although the Board regrets the additional delay, further development of the record is required before the Board may render a decision in the instant case. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). In this case, no VA examination has been provided with respect to the etiology of the Veteran's renal cell carcinoma. Private treatment records show that in 1990 the Veteran was diagnosed with renal cell carcinoma for which he underwent surgery to remove his right kidney. After the surgery, including at a 1997 state disability determination examination, the Veteran complained of abdominal pain when bending since the surgery, which he attributed to adhesions as a result of the surgery. On examination, a wide surgical scar was noted. The Veteran contends that his renal cell carcinoma is due to his exposure to Agent Orange in service. The Veteran cited to a 2011 study conducted at a VA Medical Center and published in the Journal of Urology that reported preliminary findings of a sampling of renal cell cancer patients exposed to Agent Orange that showed clear cell pathology in eight of 11 patients and metastatic disease in 40 percent. In service connection claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the relationship of current disability to service, the United States Court of Appeals for Veterans Claims has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). The evidence shows the Veteran underwent surgery for renal cell carcinoma from which he has residuals. Exposure to Agent Orange in service has been conceded. The Board finds that the 2011 Journal of Urology article indicates that there may be a nexus between the Veteran's renal cell carcinoma and his exposure to Agent Orange in service. However, no VA or private medical opinion is of record with an etiology opinion of the Veteran's renal cell carcinoma. The Board finds this case presents certain medical questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Therefore, a medical examination is necessary. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA compensation examination to obtain an opinion as to the nature of the residuals of the Veteran's renal cell carcinoma and etiology of the condition. The claims folder must be made available to the VA examiner for review. Based upon a review of all the record and clinical findings, the VA examiner is requested to answer the following questions: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's renal cell carcinoma was caused by the Veteran's service, to include exposure to Agent Orange. b) If so, then what are the residuals of the Veteran's renal cell carcinoma, including any surgical scars and adhesions. The examiner must report all signs and symptoms necessary to evaluate any scars under the current rating criteria, including providing length and width and describing any pain, instability, and limitation of function. 2. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs