Citation Nr: 1334793	
Decision Date: 10/31/13    Archive Date: 11/06/13

DOCKET NO.  10-34 746	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Entitlement to service connection for a thoracolumbar spine disability.

2. Entitlement to service connection for skin disease, to include as due to exposure to herbicides such as Agent Orange.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Associate Counsel



INTRODUCTION

The Veteran served on active duty from April 1966 to April 1968, including service in the Republic of Vietnam.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

In March 2013, the Board sought an advisory opinion from the Veterans Health Administration (VHA) on the questions of whether the Veteran's spine disability was incurred in service.  An opinion was received in April 2013 but was deemed to be insufficient.  An additional advisory opinion was sought in September 2013.  The opinion was received in September 2013 and was wholly favorable to the Veteran with respect to his spine disability claim.  As such, the Veteran is not prejudiced by the Board's decision on that issue.  


FINDINGS OF FACT

1. The Veteran's thoracolumbar spine disability was at least as likely as not incurred in service.

2. The Veteran does not have a current skin disease, to include as a result of herbicide exposure.


CONCLUSIONS OF LAW

1. The criteria for service connection for thoracolumbar spine disability have been met.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013).

2. The criteria for service connection for skin cancer have not been met.  38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

This decision fully grants the claim of service connection for thoracolumbar spine disability; hence no further notice or assistance is needed to aid the Veteran in substantiating that claim.

Duty to Notify

Proper notice from VA must inform the claimant of any information and medical or lay 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); see Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, the Veteran was sent a letter in March 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  The letter also explained what type of information and evidence was needed to establish a disability rating and effective date.  Accordingly, no further development is required with respect to the duty to notify.

Duty to Assist

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

VA has obtained the Veteran's service treatment records.  He has not reported any treatment for a skin disease, nor is there anything else in the record to suggest that there are relevant records that remain to be obtained.

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)(2); 38 C.F.R. § 3.159(c)(4).

In this case the only skin disease reported by the Veteran is skin cancer.  As discussed further below he is not competent to diagnose that disease and there is no medical evidence of current skin cancer or any other skin disease.  The Veteran has not reported any symptoms and there is no other evidence of relevant symptoms.  Hence, the duty to provide an examination or obtain a medical opinion is not triggered.   McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file.  These files together comprise the claims file.  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record.  The Board has found nothing in the record to suggest that there is any outstanding relevant evidence with respect to the Veteran's claim.

For the above reasons, 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).

Principles of Service Connection

Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110. 

Generally, to establish a right to compensation the evidence must show: (1) a present disability; (2) an 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 "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also 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). 

Facts and Analysis

Back Disability Claim

The Veteran's service treatment records show that he was treated for back pain, in September and October 1967, as a result of heavy lifting.  He has stated that his back pain actually began prior to these incidents, when a mortar attack resulted in him being hit in the back by a sandbag knocked loose from the hole he was trying to shelter in.

The Veteran has stated that after service separation he sustained two separate injuries to his back while working, one in approximately 1978 and another in 2000 or 2001.  He has also stated that since the injuries in service he has experienced daily nagging back pain, particularly first thing in the morning.  It is his contention that the injuries to his back in service weakened his back and made it more susceptible to sustaining damage as a result of his subsequent on-the-job injuries.

An X-ray of the Veteran's low back in December 2008 showed multilevel degenerative lumbar disc disease, predominantly at L5-S1.  

The physician who provided the September 2013 VHA opinion opined that the Veteran's current thoracolumbar spine disability was at least as likely as not a residual of the injuries sustained in service.  The expert further stated that individuals who experience a single episode of low back pain are more likely to have recurrent episodes of back pain and that is was as likely as not that the injury in service chronically weakened the lumbar spine.  The expert found that the Veteran's reports of pain and injury in service and since service were credible and that his additional injuries to his lower back since service were no more likely to be responsible for his current disability than his injury in service.

This record shows a current disability, an in-service injury and a nexus between the two.  The requirements for service connection under 38 C.F.R. § 3.303 have been met.  Shedden

Skin Cancer Claim

Exposure to certain herbicide agents, include the one commonly referred to as Agent Orange, shall be presumed for any Veteran who, during active military service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975).  38 U.S.C.A. § 1116(f).  

If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected even though there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, Type 2 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).  38 C.F.R. § 3.309(e); 75 Fed. Reg. 53,202-53,216, 53,205 (Aug. 31, 2010). 

Whenever VA's Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease.  38 U.S.C.A. § 1116(b)(1).

VA's Secretary has determined that a presumption of service connection based on exposure to certain herbicides, including Agent Orange, used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted.  59 Fed. Reg. 341-346 (1994); 61 Fed. Reg. 41442-41449 and 57586-57589 (1996); 67 Fed. Reg. 42600-42608 (2002); 68 Fed. Reg. 27630-27641 (2003); 72 Fed. Reg. 32395-32407 (2007).

The Veteran originally filed a claim of service connection for "Agent Orange disabilities" in January 2008 and indicated he would refine the claim based on the results of an Agent Orange examination.  On his Notice of Disagreement filed in March 2009, he stated that he had had skin cancer which he believed was caused or aggravated by his Agent Orange exposure in Vietnam.  On the VA Form 9 Appeal he stated that he would provide evidence from a private physician concerning skin cancers.  He did not identify the physician by name, nor has he provided a release to allow VA to obtain any records which might be relevant.  He has submitted no medical evidence with respect to his claim for skin cancer.

While the Veteran's exposure to herbicides such as Agent Orange is conceded, based on his service in Vietnam, there is no evidence that the Veteran has a skin disease that is subject to presumptive service connection on this basis.  The Veteran has provided no information or releases which would enable VA to obtain evidence of a current skin disease.  

The Veteran's contention that he has or had skin cancer is not competent evidence of a current disability.  This is not a matter subject to lay observation.  Medical expertise would be required to diagnose that disease, and there is no evidence that the Veteran has such expertise.  See 38 C.F.R. § 3.159(a).

The Veteran would be competent to report a diagnosis that was related to him by a medical expert, but he has not said that his private physician or any other medical expert told him he had skin cancer.  cf. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  There is also no evidence of any other skin disease.

In the absence of competent evidence of present disability, the weight of the evidence is against the claim.  Reasonable doubt does not arise and the claim is denied.  38 U.S.C.A. § 5107(b).


ORDER

Entitlement to service connection for a thoracolumbar spine disability is granted.

Entitlement to service connection for a skin disease, to include as due to herbicide exposure, is denied.



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs