Citation Nr: 1338828 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 10-07 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a skin disorder, to include as secondary to herbicide exposure and/or as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for a bladder disorder, to include as secondary to herbicide exposure and/or secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service from January 1969 to December 1970. The matter is before the Board of Veterans' Appeals (Board) on appeal from September 2009 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In October 2011 the Board remanded the issues for further development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals VA treatment records dated April 2011 to November 2012 and an October 2013 Appellate Brief. The other documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. In regard to VA treatment records dated from September 2012 to November 2012 associated with the record after the issuance of the October 2012 supplemental statement of the case, these records contain no relevant information. Therefore, the Board need not seek a waiver of or remand for the RO's initial review. See 38 C.F.R. § 20.1304(c). FINDINGS OF FACT 1. The Veteran does not have a current chronic skin disability. 2. The Veteran does not have a current chronic bladder disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin disorder have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103a, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 2. The criteria for service connection for a bladder disorder have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103a, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). These notice requirements were accomplished in a letter sent in March 2009 prior to the initial rating decision. The Veteran was also sent a VCAA letter in February 2012 as part of the Board's remand instructions. These letters also included notice of the type of evidence necessary to establish a disability rating or effective date for the issue under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent post-service treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Here, the Veteran's service treatment records, statements, and post-service VA treatment records have been associated with the claims folder. Additionally, the Veteran has not identified any other outstanding records that have not been requested or obtained. The Veteran was provided with a VA examination in March 2012. The Board finds that the VA examination report is adequate because the examiner conducted clinical evaluations, and reviewed the Veteran's medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As no current disability was identified, the examiner need not provide a nexus opinion. The Board is satisfied that there has been substantial compliance with the October 2011 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For purposes of establishing service connection for a disorder resulting from exposure to an herbicide agent, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam (Vietnam) during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). "Service in the Republic of Vietnam" includes military service in the waters offshore and military service in other locations if the conditions of the military service involved duty or visitation in Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009) (holding that service in Vietnam means that the Veteran actually set foot within the land borders of Vietnam). Under current regulations presumptive service connection is warranted for the following disorders as related to exposure to herbicides: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); ischemic heart disease; Parkinson's disease; hairy cell leukemia; and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2013). A disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2013). The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability and not due to the natural progress of the nonservice-connected disease. Allen v. Brown, 7 Vet. App. 439 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). 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 v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claims. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis The Veteran contends that his skin disorder and bladder disorder are related to his in-service herbicide exposure or to his service-connected diabetes mellitus. The Board will address the issues together as the analysis is based upon the same legal principles. The Board notes that the U.S. Army and Joint Services Records Research Center (JSRRC) verified that the Veteran was stationed in the Republic of Vietnam from February 1970 to January 1971. As such, in-service exposure to herbicides is presumed. However, the Board finds that the preponderance of the evidence is against a finding that that the Veteran currently has a skin disability or bladder disability. Regarding the Veteran's skin disorder claim, the Board acknowledges that the Veteran has reported issues with his skin. At a March 2009 Agent Orange examination, the Veteran reported that he had itching and athletes foot in-service. He also reported a rash over his left shoulder after service. In July 2010 the Veteran reported that he had dry feet that he treated with lotion. A December 2010 treatment record shows that the Veteran had an allergic reaction to Sulfasalazine, a rheumatoid medication, which included a rash and swelling. Also, in March 2012, a VA treatment record noted that the Veteran had an abnormal diabetic foot exam with peeling skin. However, the Board notes that service treatment records are absent complaints, treatment, or diagnosis of any skin disorder in-service. Additionally, at no time during the appeal period has the Veteran been diagnosed with any chronic skin condition. Post-service VA treatment records dated January 2008 to November 2012 are absent any diagnosis of a chronic skin disability. Notably, at a March 2009 Agent Orange examination, the examiner concluded that the Veteran did not have chloracne, porphyria cutanea tarda, cutaneous lymphomas, tinea pedis, tinea corpis, tinea versicolor, dermatofibromas, seborrheic dermatitis, seborrheic keratoses, actinic keratoses, or lentigines. Additionally, post-service VA treatment records dated, in May 2008, July 2008, August 2009, February 2010, April 2010, April 2011, June 2011, July 2012, and August 2012, show that the Veteran was repeatedly noted to be negative for skin rashes or lesions. Also, at an April 2009 VA diabetes mellitus examination the Veteran denied any skin disorders. At a November 2010 VA examination the examiner noted that the Veteran did not have any diabetic skin abnormalities. Additionally, an August 2012 treatment record shows that on physical examination, the Veteran's skin was warm, dry, normal in color and turgor, and there were no wounds, pressure ulcers, or other skin problems. Furthermore, at a March 2012 VA skin examination, the examiner concluded that there was no evidence of any skin condition at the time of the examination. The examiner also noted that there was no documentation in the claims file regarding treatment of a skin condition while on active duty. A subsequent July 2012 general and diabetes VA examination noted that the skin revealed no lesions and no skin disorder secondary to diabetes was identified. Thus, no chronic skin disorder has been diagnosed. Regarding the Veteran's bladder disorder claim, the Board acknowledges that a March 2012 VA treatment record shows that the Veteran reported in the prior two to three months he had been having problems with urinary urgency, hesitancy, and frequency. He also reported that he had occasional dribbling and that his urine had a strong odor. However, the Board notes that the Veteran's service treatment records are absent any complaints, treatment, or diagnoses of a bladder disability. Additionally, at no time during the appeal period was the Veteran diagnosed with a bladder disability. VA treatment records dated January 2008 to November 2012 are absent any diagnosis of a bladder disability. In fact, VA treatment records dated May 2008, March 2009, August 2009, April 2010, and October 2010 show that the Veteran repeatedly denied problems with dysuria and or difficulty passing urine. A July 2012 VA General Medical examination indicates that there was no urinary tract (including bladder and urethral) condition. Furthermore, the March 2012 VA examiner found that the Veteran was not, or ever had been, diagnosed with a condition of the bladder or urethra of the urinary tract. Thus, no chronic bladder disorder has been diagnosed. The Board finds the March 2012 VA examiner's opinions to be highly probative to the questions of whether the Veteran has a current skin disability or bladder disability. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his knowledge and skill in analyzing the data, and his medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical 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). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Here, the March 2012 VA examination report contains the only competent diagnosis opinion of record and weighs against the Veteran's claim. It reflects review of the Veteran's claims file and interview and examination of the Veteran. Furthermore, the March 2012 VA examiner's conclusion that the Veteran does not currently have a diagnosis of a skin disability or bladder disability is consistent with the evidence of record. The Board acknowledges the Veteran's assertions that he has a current skin disability and bladder disability. The Board notes that the Veteran is competent to report that he suffers from dry itchy skin and problems with urinary frequency. See Jandreau, supra. The Board also finds the Veteran credible in this regard as there is no evidence of record that contradicts the Veteran's statements. However, the Veteran is not competent to diagnose these symptoms as chronic diseases, as this involves resolution of a medically complex matter. As such the Board assigns little probative weight to the Veteran's assertions that he currently has a skin disability and a bladder disability. As the Court has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the Veteran's claim that he is currently diagnosed with a skin disability and a bladder disability, the benefit-of-the-doubt doctrine is therefore not applicable, and the claims for service connection for a skin disorder and bladder disorder must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for a skin disorder is denied. Entitlement to service connection for a bladder disorder is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs