Citation Nr: 1336310 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 08-38 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a left ear hearing loss disability. 2. Entitlement to service connection for a skin condition, xerosis, as due to exposure to Agent Orange. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Y. Curtis, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1967 to August 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in October 2007of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2010, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In July 2010, the Board remanded the claims for additional development. The development has been accomplished. Stegall v. West, 11 Vet. App. 268, 271 (1998). The claim of service connection for a left ear hearing loss disability is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT A skin condition, xerosis, is unrelated to an injury, disease, or event during service, including exposure to Agent Orange. CONCLUSION OF LAW A skin condition, xerosis, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1116, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter dated in May 2007. The Veteran was notified of the information and evidence needed to substantiate a claim of service connection, namely, evidence of current disability; evidence of an injury or disease or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. The Veteran was notified that VA would obtain service records, VA records and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any such records on his behalf. The VCAA notice included the general provisions for the effective date of a claim and the degree of disability assignable. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (to the extent there was pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service personnel records, service treatment records, and VA records. The Veteran has not identified any private treatment records or records of the Social Security Administration pertinent to the claims. By remand directive, the Veteran was afforded VA examinations in August 2010 and September 2010, which included a discussion of the Veteran's medical history, diagnoses, etiology, and supporting rationale. As the examination reports are based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is a fully informed one, the examination reports are adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION I. Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active military service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110. Generally, to establish a right to compensation for a present disability, a Veteran 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, also referred to as the "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented by 38 C.F.R. §§ 3.303, 3.307, and 3.309. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to certain herbicides, including an herbicide commonly referred to as Agent Orange, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a) (6) (iii). There is a presumption of service connection for certain diseases associated with exposure to Agent Orange. A presumption of service connection is afforded only the diseases listed and have found by the Secretary of VA to have a positive association with exposure to Agent Orange. Xerosis is not on the list of diseases subject to presumptive service connection under 38 U.S.C.A. § 1116(b) and 38C.F.R. §§ 3.307 and 3.309. When a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). II. Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Evidence The service personnel records show that the Veteran served in Vietnam from February 1967 to February 1968 during the Vietnam era. On entrance examination, the Veteran denied a history of skin diseases and the skin evaluation was normal. The service treatment records show that in September 1967 the Veteran was treated for acute contact dermatitis causing patches around the left eye and anterior chest. The exact etiology was not known, but an insect bite was suspected. The Veteran was also seen in June 1969 for a rash on his face. The Veteran was advised not to shave unless he used shaving powder. On separation examination, the Veteran denied a history of skin disease and the skin evaluation was normal. After service, VA records from June 2000 to April 2008 do not contain evidence of a skin condition. On VA examination in September 2010, the Veteran complained skin peeling from the neck, upper back, forearms, and hands since 1972. The Veteran stated that he had not seen a dermatologist. On physical examination, the there was a 2x2 cm hyperpigmented macule on the left elbow. The diagnosis was xerosis. The VA examiner expressed the opinion that xerosis was not related to service, including exposure to Agent Orange. The VA examiner noted that the service acute contact dermatitis and shaving rash resolved in service. Additionally, the VA examiner noted that the Veteran's separation examination revealed no subjective complaints or objective evidence of a skin condition. On the basis of service treatment records alone, the Veteran had acute contact dermatitis in 1967 and a rash in 1969, but the current diagnosis of xerosis, was not affirmatively shown to have been present during a period of active duty, and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. 3.303(a) is not warranted. Additionally, xerosis is not listed as a chronic disease in 38 C.F.R. § 3.309(a), therefore, chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply. As for service connection on the basis of the initial diagnosis after service, considering all the evidence, including that pertinent to service under 38 C.F.R. § 3.303(d), the Veteran as a lay person is competent to describe symptoms of skin condition. See McCartt v. West, 12 Vet. App. 164, 167 (1999). No medical professional, however, has associated xerosis to an injury, disease, or event in service, including exposure to Agent Orange. To the extent the Veteran asserts a causal relationship between his xerosis and exposure to Agent Orange, such an assertion constitutes the Veteran's opinion, but such an opinion would require specialized education, training, or experience, which has not been factually established. For this reason, the Veteran's lay opinion is not competent evidence and is not admissible as evidence favorable to the claim under 38 C.F.R. § 3.303(d). Whereas here there are questions of causal relationship, and lay evidence is not competent evidence, competent medical is needed to substantiate the claim, that is, evidence provided by a person who is qualified through education, training, or experience to offer a medical opinion. 38 C.F.R. § 3.159. The competent medical evidence consists of the report of a VA examiner in September 2010. The VA examiner, who is qualified to offer a medical diagnosis and opinion, stated that the xerosis was not related to service and not associated with exposure to Agent Orange. This evidence opposes the claim. The Board finds the opinion of the VA examiner highly probative on a material question of fact, that is, whether or not the Veteran has a skin condition related to service including exposure to Agent Orange. The Veteran served in Vietnam during the Vietnam era, and it is presumed that he was exposed to Agent Orange. But the current diagnosed skin condition, xerosis, is not a disease subject to presumptive service connection for a Veteran, who served in Vietnam in the Vietnam era and service connection due to exposure to Agent Orange on a presumptive basis under 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.309(e) is not warranted. And there is no medical evidence of record that directly links exposure to Agent Orange to xerosis. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As there is no favorable, competent lay or medical evidence on the material questions of a diagnosis or of a causal relationship between the currently diagnosed skin conditions and the symptoms in service or an injury or disease or event in service, the preponderance of the evidence is against the claim under the applicable theories of service connection, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for a skin condition, xerosis, to include as due to exposure to Agent Orange is denied. REMAND On the claim of service connection for a left ear hearing loss disability, after the Veteran was last examined by VA, the RO granted service connection for a right ear hearing loss disability, which raises the issue of secondary service connection. As the record is insufficient to decide secondary service connection, additional development under the duty to assist is needed. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination by a VA examiner, who has not previously examined the Veteran, to determine: Whether it is more likely than not (greater than 50 percent probability), at least as likely as not (approximately 50 percent probability), or less likely than not (less than 50 percent probability) that a left ear hearing loss disability is caused by or aggravated by the service-connected right ear hearing loss disability? "Aggravation" means a permanent increase in severity, that is, an irreversible worsening of left ear hearing loss as a result of the service-connected right ear hearing loss beyond the natural clinical course of the nonservice-connected disability as contrasted to a temporary worsening of symptoms. The Veteran's file must be provided to the VA examiner for review. 2. After the above development, adjudicate the claim. If the benefit is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. Accordingly, the Veteran has the right to submit additional evidence and argument on the claim the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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). ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs