Citation Nr: 1339328 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 08-11 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a skin disorder, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Philadelphia, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2011, the Veteran failed to appear for a hearing before a Veterans Law Judge. As he has not requested that his hearing be rescheduled, his request is withdrawn. 38 C.F.R. § 20.1304 (2013). When this case was previously before the Board in March 2012, it was decided in part and remanded in part for additional evidentiary development; it has since been returned to the Board for further appellate action. Notably, while the appeal was in remand status, the Appeals Management Center (AMC), in Washington, DC, granted service connection for hepatitis C, an issue which had previously been on appeal to the Board. As the grant of service connection constitutes a full grant of the benefit sought on appeal, this issue is no longer before the Board. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file was completed to ensure thorough analysis of the evidence of record. The issue of entitlement to service connection for tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC. FINDING OF FACT A diagnosis of a skin disorder has not been shown at any time during the pendency of the Veteran's claim. CONCLUSION OF LAW The criteria for service connection for a skin disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects the Veteran was provided VCAA notice in a letter mailed in January 2007, prior to the initial adjudication of the claim. The Board also finds VA has complied with its duty to assist the Veteran in the development of his claim. In this regard, the Board notes that the Veteran's service treatment records and pertinent post-service medical records have been associated with the claims folder. The Board observes that the Veteran has not been afforded a VA examination to determine the nature and etiology of his claimed skin disorder. In this regard, the Board points out that VCAA does not require a VA medical examination unless the medical evidence of record is not adequate or sufficient for the appropriate legal action. Glover v. West, 185 F.3d 1328, 1332 (Fed. Cir. 1999). In other words, a VA examination is not required where the veteran has not presented a prima facie case for the benefit being sought. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c) (4). See also Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512 (2004) (per curiam). In this case, and as discussed in detail below, the Veteran has not submitted a prima facie case for service connection for his claimed skin disability, which requires (1) competent medical or objective lay evidence of a current disability and (2) competent medical or lay evidence of a disease or injury during military service. Accordingly, a VA medical examination is not necessary in this case. 38 C.F.R. § 3.159(c) (4). In response to the Board's remand, in a March 2012 letter, the Veteran was asked to submit or identify all medical care providers that had provided any treatment pertinent to his claim; he did not reply. Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claim. The Board also is unaware of any such outstanding evidence. Therefore, the Board is satisfied that the originating agency has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. In sum, the Board is satisfied that any procedural errors in the RO's development and consideration of the claims were insignificant and non-prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be established for a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection also may be granted for any disease initially 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). Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. §§ 1116; 38 C.F.R. § 3.307. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a) (6) (iii), 3.313(a). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and acute and subacute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307, 3.309(e). The enumerated diseases are AL amyloidosis; chloracne or other acneform diseases; Type II diabetes; Non-Hodgkin's lymphoma; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; respiratory cancers; prostate cancer; and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term "soft-tissue sarcoma" includes adult fibrosarcoma, dermatofibrosarcoma protuberans, malignant fibrous histiocytoma, liposarcoma; leiomyosarcoma; epithelioid leiomyosarcoma (malignant leiomyoblastoma); rhabdomyosarcoma; ectomesenchymoma; angiosarcoma (hemangiosarcoma and lymphangiosarcoma); proliferating (systemic) angioendotheliomatosis; malignant glomus tumor; malignant hemangiopericytoma; synovial sarcoma (malignant synovioma); malignant giant cell tumor of tendon sheath; malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas; malignant mesenchymoma; malignant granular cell tumor; alveolar soft part sarcoma; epithelioid sarcoma; clear cell sarcoma of tendons and aponeuroses; extraskeletal Ewing's sarcoma; congenital and infantile fibrosarcoma; malignant ganglioneuroma; and amyotrophic lateral sclerosis (ALS). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a) (6) (iii), 3.309(e), 3.313, 3.318. In July 2009, the National Academy of Sciences (NAS) issued "Veterans and Agent Orange: Update 2008" (Update 2008). A determination was made by the Secretary, based upon Update 2008 and prior NAS reports, that a presumption of service connection based on exposure to herbicides in the Republic of Vietnam is not warranted for the following health outcomes: hypertension; cancers of the oral cavity (including lips and tongue), pharynx (including tonsils), or nasal cavity (including ears and sinuses); cancers of the pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic organs; esophageal cancer; stomach cancer; colorectal cancer (including small intestine and anus); hepatobiliary cancers (liver, gallbladder and bile ducts); pancreatic cancer; bone and joint cancer; melanoma; non-melanoma skin cancer (basal cell and squamous cell); breast cancer; cancers of reproductive organs (cervix, uterus, ovary, testes, and penis; excluding prostate); urinary bladder cancer; renal cancer (kidney and renal pelvis); cancers of brain and nervous system (including eye); endocrine cancers (thyroid, thymus, and other endocrine organs); leukemia (other than all chronic B-cell leukemias including chronic lymphocytic leukemia and hairy cell leukemia); cancers at other and unspecified sites; neurobehavioral disorders (cognitive and neuropsychiatric); movement disorders (including amyotrophic lateral sclerosis, but excluding Parkinson's disease); chronic peripheral nervous system disorders; respiratory disorders (wheeze or asthma, chronic obstructive pulmonary disorder, and farmer's lung); gastrointestinal, metabolic, and digestive disorders (changes in liver enzymes, lipid abnormalities, and ulcers); immune system disorders (immune suppression, allergy, and autoimmunity); circulatory disorders (other than ischemic heart disease); endometriosis; effects on thyroid homeostasis; and certain reproductive effects, i.e., infertility, spontaneous abortion, neonatal or infant death and stillbirth in offspring of exposed people, low birth weight in offspring of exposed people, birth defects (other than spina bifida) in offspring of exposed people, childhood cancer (including acute myelogenous leukemia) in offspring of exposed people. 75 Fed. Reg. 81332 (December 27, 2010). Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Thus, presumption is not the sole method for showing causation. As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability, (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Analysis As will be explained below, although exposure to Agent Orange has been conceded, the record establishes that the Veteran has not had a skin disorder during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, he is not entitled to service connection for a skin disorder, to include as secondary to herbicide exposure. The Veteran filed the instant claim in January 2007. Service treatment records are negative for any complaints, findings, or treatment for a skin disorder. Post-service VA and private treatment records are negative for any complaints, findings, or treatment for a skin disorder. Based upon review of the evidence above, the Board finds the Veteran's claim for service connection for a skin disorder must fail because the medical evidence of record does not indicate a diagnosis of this condition. Where the medical evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection for that disorder is not authorized under the statues governing Veterans' benefits. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). In addition to the objective evidence discussed above, the Board has considered the written assertions advanced by the Veteran and by his representative, on his behalf. However, to the extent that those assertions are being offered either to establish a diagnosis or nexus between the claimed skin disability under consideration and service, such evidence must fail. Matters of diagnosis and etiology are within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As laypersons are not shown to possess the appropriate training and expertise, neither the Veteran nor his representative is competent to provide a probative (persuasive) opinion on the matters upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). For all the foregoing reasons, the claim for service connection for a skin disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. ORDER Entitlement to service connection for a skin disorder, to include as secondary to herbicide exposure, is denied. REMAND The Veteran asserts that he is entitled to service connection for tinnitus as it is related to noise exposure in service. In response to the Board's remand, the Veteran was afforded a VA examination in May 2012 in which the VA examiner stated that after review of the claims file as well as case history taken at the examination, the claimed service connection for bilateral tinnitus is not caused by or the result of military noise exposure as there is no evidence found in the claims file. The Board finds that this is an inadequate examination. First, the VA examiner did not address the question posed in the prior remand as to whether there was at least a 50 percent probability or greater (at least as likely as not) that the Veteran had any present tinnitus incurred in active service. Moreover, the statement that there is "no evidence found in the claims file" is not an analysis sufficient for the Board to consider and weigh against other evidence. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Once VA decides to afford a claimant a medical examination it generally must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, a remand is necessary to afford the Veteran an adequate examination. So as to reduce the likelihood of any additional delay, the Board requires that the examination be conducted by an examiner other than the one that conducted the May 2012 examination. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for an appropriate VA examination, conducted by an examiner other than the one that conducted the May 2012 examination, to ascertain the nature and etiology of his claimed tinnitus. Any medically indicated special tests should be accomplished, and all special tests and clinical findings should be clearly reported. The examiner should give an opinion as to whether there is at least a 50 percent probability or greater (at least as likely as not) that he has any present tinnitus incurred in or the result of active duty service. Prior to the examination, the claims folder and a separate copy of the Remand must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. If the examiner is unable to offer any of the requested opinion(s), it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed. All applicable laws and regulations should be considered. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs