Citation Nr: 1341623 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 09-08 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a disability manifested by heartburn. 2. Entitlement to service connection for a skin disorder. REPRESENTATION Appellant formerly represented by: Armed Forces Service Corporation ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1979 to July 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In a February 2009 statement, the Veteran indicated that although he was previously represented by the Armed Forces Services Corporation, he wished to revoke representation, and represent himself. Accordingly, as there has been no withdrawal of this request, and the Veteran has not submitted a new power of attorney for any other organization to serve as his representative, the Board finds that the Veteran's statement is sufficient to revoke his previous power of attorney. Thus, the Veteran is proceeding pro se in the current appeal. 38 C.F.R. §§ 20.607, 20.608. When this case was most recently before the Board in June 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. No further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that in addition to the paper claims file, there exists an electronic "Virtual VA" file that was also reviewed to ensure complete analysis of the evidence of record. FINDINGS OF FACT 1. A disability manifested by heartburn was not present in service and is unrelated to an injury or disease or event in service. 2. Any skin disorder in service was acute and resolved with no residual disability at the time of separation; the Veteran's current skin disorder was not manifested in service or for many years thereafter, and is not shown to be related to service. CONCLUSIONS OF LAW 1. A disability manifested by heartburn was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). 2. A chronic skin disorder was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. 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 specifically to 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 disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided complete VCAA notice by a letter mailed in September 2007, prior to the initial adjudication of the claims on appeal. In addition, service treatment records were obtained and a VA-contracted examination was provided. The Board notes that the Veteran has not indicated that any post-service VA or private treatment records exist. Further, he denied seeking medical treatment in the past 12 months at his October 2009 VA-contracted examination. In response to the Board's remand, the Veteran was scheduled for VA examinations in June and August 2012 but he did not appear. He was sent notice in September 2012 regarding the missed examinations, but he did not respond. The Court has also held that VA's 'duty to assist is not always a one-way street.' Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If a veteran wishes help he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining relevant evidence. The Veteran has not identified any other evidence that could be obtained to substantiate his claims. The Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. Accordingly, the Board will address the merits of the claims. II. Legal Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claim in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also 38 C.F.R. § 3.309(a). Because a disability manifested by heartburn and a skin disorder are not explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a), the Board finds that Savage and the theory of continuity of symptomatology in service connection claims is inapplicable to this claim. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Analysis The Veteran filed the instant claims in August 2007. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, as regards the motion before the Board. The Veteran must not assume that the Board has overlooked any pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Claim - Disability Manifested by Heartburn The Veteran asserts that he has heartburn that began during his active service and continued following his discharge. Service treatment records show complaints of frequent indigestion and heartburn. The Veteran reported a history of heartburn at his separation examination. The Veteran was afforded a VA-contracted examination in October 2009 in which he reported symptoms including dysphagia, heartburn, reflux, and regurgitation. The examiner did not find any pathology to render a diagnosis for the claimed heartburn; the examiner did indicate that the Veteran's hiatal hernia/GERD did not cause significant anemia and there were no findings of malnutrition. The Board recognized that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, while the Veteran did not specifically claim service connection for GERD, the VA-contracted examiner diagnosed GERD and/or hiatal hernia, both of which are upper gastrointestinal disorders, of which heartburn may be a symptom. Therefore, in June 2012 the Board remanded the issue to afford the Veteran a VA examination to address etiology. As noted above, the Veteran failed to report for examination scheduled in June and August 2012 in connection with his claim, despite being advised of the examination; therefore, the Board must decide the case on the evidence of record. Based upon review of the evidence above, the Board finds the Veteran's claim for service connection for a disability manifested by heartburn must fail because the medical evidence does not indicate a connection between the claimed disability and service. That is, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). The Board notes that service treatment records show the Veteran complained of indigestion and heartburn, and he has attributed his current problems to service. The Board acknowledges that lay testimony is competent to establish the presence of observable symptomatology and, "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). Thus the Veteran is competent to report symptoms of heartburn. However, a layperson is not considered capable of opining in regard to a medical diagnosis or medical causation. Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). The Board also acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. For all the foregoing reasons, the claim for service connection for a disability manifested by heartburn 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. Claim - Skin Disorder The Veteran asserts that service connection is warranted for his skin disorder as it is related to service. Service treatment records show treatment for various skin conditions. In 1980 an intradermal nevus was removed from the neck. In 1981 and 1982 the Veteran was seen for seborrheic dermatitis on the scalp and possible eczema on the right leg. In 1984 a dermatofibroma was removed from the left forearm. In 2003 an epithelial inclusion cyst was removed from the right lower eyelid. In 2004 the Veteran was seen for a facial rash that was possible seborrheic dermatitis or rosacea. At his separation examination, the Veteran reported a history of eczema on the scalp; his skin examination was within normal limits. On his September 2006 report of history, the Veteran reported continued rashes that would come and go. The Veteran was afforded a VA-contracted examination in October 2009 in which he reported having a skin condition since 2000, which involved areas exposed to the sun, including the face, but not the hands, neck, or head. The Veteran reported intermittent exudation of the face; ulcer formation of the nose, cheeks, and area under the eyes; and blistering. Physical examination showed that the skin was clear of rashes and lesions, and the examiner concluded that there was no pathology present to render a diagnosis for a skin condition. As noted above, the Veteran failed to report for examination scheduled in June and August 2012 in connection with his claim, despite being advised of the examination; therefore, the Board must decide the case on the evidence of record. 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 most recent medical evidence does not indicate a current 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 disabilities under consideration and service, such evidence must fail. Matters of diagnosis and etiology are within the province of trained professionals. See Jones, 7 Vet. App. 134, 137-38. 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, 10 Vet. App. 183, 186 ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. 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 disability manifested by heartburn is denied. Entitlement to service connection for a skin disorder is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs