Citation Nr: 1340732 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-11 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a skin disability of the lower legs, claimed as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran reportedly served on active duty from June 1966 to June 1974, with verified service in the Republic of Vietnam from March 1969 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified at a hearing before the Board by videoconference sitting at the RO in Columbia in March 2011. A transcript of the hearing is associated with the claims file. The Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems do not contain additional evidence relevant to this appeal. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam from March 1969 to March 1970 and is presumed to have been exposed to certain herbicide agents. 2. The Veteran's skin disability of the lower legs first manifested after service and is not related to any aspect of service including exposure to herbicides in service. CONCLUSION OF LAW The criteria for service connection for a skin disability of the lower legs on a direct or presumptive basis are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist 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 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a July 2008 letter, sent prior to the initial unfavorable decision issued in September 2008, advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. In this regard, such letter informed him of the information and evidence necessary to substantiate his claim based on presumptive exposure to herbicides coincident with service in the Republic of Vietnam. Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records as well as VA treatment reports have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Veteran was also afforded a VA examination in February 2010. As relevant to his claim for service connection for a skin disability of the lower legs, the Board finds that the VA examination and accompanying opinion is adequate to decide the issue as it is predicated on an interview with the Veteran; a review of the record, to include his service treatment records; and a physical examination with diagnostic testing. The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ( '[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions'). The Board acknowledges that VA has not obtained an opinion with respect to whether any current lower leg disability is directly related to the Veteran's in-service Agent Orange exposure. The Board finds, however, that it is not necessary to obtain such an opinion. Under the applicable statute, an examination or opinion is necessary to make a decision on a claim under the following circumstances: [I]f the evidence of record before the Secretary, taking into consideration all information and lay or medical evidence (including statements of the claimant)- (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (C) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2). As noted by the Federal Circuit in a recent unpublished opinion: We have held that subparagraphs A and B, because of their different language, set different evidentiary standards: "competent" evidence is needed under A, but "medically competent evidence is not required in every case to 'indicate' that the claimant's disability [or symptoms] 'may be associated' with the claimant's service" under subparagraph B." Dellosa v. Shinseki, 2013 WL 5098277 (C.A.Fed.) (confirming the holdings of Colantonio v. Shinseki, 606 F.3d 1378 (2010) and Waters v. Shinseki, 601 F.3d 1274, 1276-77 (2010)). In Waters, the Federal Circuit determined that the nexus evidentiary standard of subsection B ("'evidence' that 'indicates' that the veteran's disability 'may be associated' with the veteran's active military service") is less onerous than the evidentiary standard of subsection A (requiring "competent" evidence of a current disability). Waters, 601 F.3d at 1277. This interpretation was reiterated in Colantonio, which further stated the following: [M]edically competent evidence is not required in every case to "indicate" that the claimant's disability "may be associated" with the claimant's service. Of course, that is not to say that it will always be possible to establish a nexus through lay evidence, as there may be instances, such as the Waters case itself, in which the lay evidence falls short of satisfying the statutory standard. Colantonio, 606 F.3d at 1382. In the case at hand, the lower nexus standard as enumerated in Waters and Colantonio is not satisfied with respect to the Veteran's Agent Orange theory of entitlement to service connection, as the record does not indicate that the Veteran's current skin disability of the lower legs had a causal connection or was associated with his active military service. As will be discussed in more detail below, the Board finds that neither medical nor lay evidence in this case indicates that the Veteran's skin disability of the lower legs may be associated with his military service. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue of entitlement to service connection for a skin disability of the lower legs has been met. In March 2011, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Acting Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the undersigned noted the issue on appeal. Information was obtained regarding the Veteran's contentions pertaining to his service in Vietnam and his pertinent medical history. The undersigned requested further information concerning pertinent symptoms during and since the Veteran's service and solicited from the Veteran information concerning whether any medical treatment provider had ever linked his claimed skin disability to service, to include to presumed herbicide exposure. In addition, the hearing focused on the elements necessary to substantiate the Veteran's claim. The Veteran has not asserted that there was any prejudice with regard to the conduct of the hearing. Therefore, not only was the issue 'explained . . . in terms of the scope of the claim for benefits,' but 'the outstanding issues material to substantiating the claim,' were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any relevant evidence that might be available that had not been submitted with respect to the issue on appeal. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran served with the United States Army in the Republic of Vietnam from March 1969 to March 1970. He testified at his Board hearing that he served as a helicopter mechanic in Vietnam. There is no evidence that the Veteran was assigned duties handling or dispersing herbicide agents, and he has not claimed such duties. He contends that his skin disability of the lower legs was caused or aggravated by in-service herbicide exposure. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disease must be shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge from service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997). Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). A lay claimant is competent to provide testimony concerning factual matters of which he has firsthand knowledge (i.e., reporting something seen, sensed or experienced). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In the case at hand, the Veteran served in the Republic of Vietnam from March 1969 to March 1970. Therefore, he is presumed to have been exposed to herbicides. The Board notes that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Health Outcomes Not Associated With Exposure to Certain Herbicide Agents, 72 Fed. Reg. 32,395 (June 12, 2007). Even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. Service treatment records are silent for any symptoms, diagnoses, or treatment for a skin disability with one exception. In August 1970, the Veteran was found to have a macular, keratotic rash on the palms of his hands and the soles of his feet of one month's duration. No further treatment for this rash appears in the record. During a physical examination in April 1974, shortly before his separation from service, the Veteran's lower extremities and skin were found to be clinically normal, and he expressly denied any skin diseases in an April 1974 medical history report. Post-service medical evidence is silent for any symptoms associated with a skin disability until a January 1999 VA medical record reflects that the Veteran sought treatment for a rash on his leg. The record reflects that the "[r]ash on leg [had been] present several years" and that the Veteran "had a significant abrasive injury to that leg a couple years earlier." Following physical examination, the Veteran was assessed as having Shamberg's purpura with lichen skin complex component. He was prescribed Lidex ointment/Sarna lotion. A February 1999 follow-up consultation reflects that the Veteran reported his leg is "much better - no longer itching. Still has significant red brown pigmentation [right lower extremity] but without lichenification or palpable component." The Veteran underwent a VA examination February 2010. The examination report reflects that the Veteran's service treatment records reflect he was treated for syphilis, primary, and herpes genitalis in service, and that he had a rash on the palms of his hands and the soles of his feet, but there was no mention of a rash on his legs during service. The Veteran reported that, "[i]n the early 1980s, he had the onset of a rash with itching and discoloration on both legs from the ankles to the knees." It has become much more problematic in the last ten years. He described the above visits to VA medical providers, noting that he was given an ointment in 1999 that stopped his itching but that the discoloration persisted. He has had varicose veins for many years, but he does not know how long. His reported symptoms were pruritis and dryness of the skin. On physical examination, there was a hyperpigmented rash, macular in nature, with no ulcerations or excoriations at the present time, which extended from the ankles to the knees bilaterally. It was slightly worse on the right than the left. Varicose veins without evidence of thrombophlebitis, clots, or surgeries were also noted. The examiner diagnosed venous stasis hyperpigmentation of the legs, right and left. This diagnosis was noted to be based on the examiner's review of the claims file, physical examination of the Veteran, and history as given by the Veteran. The examiner stated that the rash had its beginning in approximately the 1980s or later and has persisted to the present time. The examiner noted that the Veteran did have a rash while on active duty, and that this rash was treated. However, the rash was not in the same place. Based on the above, the examiner opined that the rash on the Veteran's legs is less likely than not related to a problem that he had while on active duty in military service. At his March 2011 Board hearing, the Veteran testified that he began having his skin condition in the mid to late 1990s. He reported that he was treated with a topical ointment by VA. He reported that this condition was located on his right lower leg, between his ankle and knee. The Veteran reported that he was not claiming that this skin rash was presumptively related to Agent Orange, but that it was directly related, based on the itching, the scaling of the skin, and the discoloration. He reported that no medical professional has directly opined that the skin rash was related to Agent Orange exposure, but that nurses or doctors had suggested that the rash could be related to Agent Orange. The Veteran also testified that he believes the skin condition on his feet and hands that was noted during service was poison oak. He did not suggest that he still has residuals of that condition. Based on the above, the Board concludes that service connection for a disability of the bilateral lower legs is not warranted on a direct or presumptive basis. With respect to presumptive service connection, the Board notes that the Veteran's currently-diagnosed venous stasis hyperpigmentation of the legs does not appear on the list of disabilities that are presumptively linked to herbicide exposure. Therefore, entitlement to presumptive service connection must be denied. Nor is service connection warranted on a direct basis, to include as directly related to in-service herbicide exposure. As noted above, the only medical opinion of record, the February 2010 VA examination report, weighs against the Veteran's claim. The Board considers this opinion to be highly probative to the question at hand, as it was prepared by an examiner who thoroughly reviewed the claims file and interviewed and examined the Veteran and supported the opinion that was rendered through citation to the facts of the Veteran's case. Service connection on a direct basis is not warranted because the weight of competent medical evidence is that the current disorder is not the same as the skin disorder on the palms of the hands and soles of the feet that was found in service, and that the current disability manifested many years after service. The Board notes that evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be weighed as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The only contrary opinion comes from the Veteran himself, who contends that his skin disability of the lower legs is related to service. As noted above, there are circumstances in which a layperson is competent to provide medical evidence. Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a layperson is competent in certain situations to provide a diagnosis of a simple condition, a layperson is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the case at hand, the Veteran has testified as to his belief that his skin disability of the lower legs was caused by his in-service Agent Orange exposure. He has conceded that this condition did not begin until approximately the 1980s or 1990s, which is years following his June 1974 separation from service. The Board finds that the question of whether a current lower leg disability is related to Agent Orange exposure that occurred years prior to the first manifestations of the claimed disability is of sufficient medical complexity to be beyond the scope of a layperson. The Board, therefore, cannot accept the Veteran's lay assertions of nexus as competent medical evidence. Furthermore, the Board finds that the Veteran's testimony that he has been told by doctors or nurses that his Agent Orange exposure may have caused his current skin disability of the bilateral lower extremities does not constitute competent medical evidence to establish nexus. The Board notes that the claims file contains no medical records documenting a medical opinion linking the Agent Orange exposure to a current lower leg disability. Rather, the only indication of such opinions of record comes from the Veteran's own lay testimony. Hearsay medical evidence does not constitute competent medical evidence (e.g., when claimant states anecdotally that a physician previously expressed an opinion, but there is no supporting evidence thereof in the record). Robinette v. Brown, 8 Vet. App. 69 (1995); Warren v. Brown, 6 Vet. App. 4 (1993). ("What a physician said, and the layman's account of what he purportedly said, filtered through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute medical evidence." Robinette, 8 Vet. App. at 77 (1995)). Therefore, the Board cannot accept the Veteran's description of a potentially competent etiology opinion as competent medical nexus evidence. The weight of the credible and probative evidence demonstrates that the Veteran's current skin disability of the lower legs first manifested years after service and is not related to his active service or any incident or exposure therein. As the preponderance of the evidence is against this claim, the 'benefit of the doubt' rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a skin disability of the lower legs, claimed as due to herbicide exposure, is denied. ____________________________________________ J.W. FRANCIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs