Citation Nr: 1414039 Decision Date: 04/01/14 Archive Date: 04/11/14 DOCKET NO. 11-34 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a skin condition due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD N. Sangster, Associate Counsel INTRODUCTION The Veteran had active service from July 1965 to July 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 decision by the RO in St. Paul, Minnesota, that denied entitlement to service connection for melanoma of the face. Subsequently, the Veteran's claims for a skin condition /blisters of the face and arms and melanoma of the face were recharacterized and adjudicated as a skin condition in a February 2013 supplemental statement of the case (SSOC). In May 2013, a video hearing conference was held before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of this hearing is on file. FINDINGS OF FACT 1. The Veteran had no confirmed service in the Republic of Vietnam during the Vietnam Era; and, although he served in Yokota, Japan, he had no confirmed exposure to herbicides during his period of active military service 2. The preponderance of the competent and credible evidence indicates that the Veteran's skin condition began many years after his active military service and was not caused by any incident of service. CONCLUSION OF LAW A skin condition was not incurred in or aggravated by service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Here, in April 2011, October 2012 and January 2013 legally sufficient notice letters were sent to the Veteran regarding his service connection claim for a skin condition. The appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); see also Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran has submitted records and written statements in support of his claims. A review of the claims file shows that the RO has obtained the Veteran's STRs, available VA and private treatment records. The Veteran has, in essence, requested VA assistance in obtaining evidence in support of his appeal from the VA San Diego Medical Center. The record shows that attempts to obtain copies of VA records in April 2012 and July 2012 were unsuccessful and that in a July 2012 memorandum the RO found that efforts to obtain these records had been exhausted. The Veteran was notified that efforts to obtain VA records had been unsuccessful by correspondence dated July 2012. The Board concurs that further attempts to obtain additional evidence would be futile. The Board concludes that all the identified and available records and medical evidence have been obtained in order to make a determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. §§ 3.159(c)(4), 3.326(a). See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board realizes the Veteran has not been provided a VA compensation examination in response to his claim for a skin condition, nor has a medical nexus opinion been obtained. VA is obliged to provide a VA compensation examination or medical opinion when (1) there is competent evidence the Veteran has a current disability or persistent or recurrent symptoms of disability; (2) there is evidence establishing that he suffered an event, injury or a disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) the evidence indicates the current disability or symptoms may be associated with service or a service-connected disability; but (4) there is insufficient medical evidence on file to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). See also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). In both McLendon and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010), the U.S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that, when determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A(d)(2) , the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability. But as discussed in greater detail below, there is no competent and credible evidence suggesting the Veteran's skin condition is related or attributable to his active military service. VA is not obligated to schedule an examination in this circumstance merely as a matter of course. Therefore, there is not the required evidence to warrant the scheduling of a VA compensation examination for a medical opinion. His mere diagnosis of a skin condition with no supporting evidence of an in-service event or injury is insufficient to trigger the duty to assist. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004). Further, the Board also notes that it is cognizant of the ruling in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The Board finds that this was done at the May 2013 video hearing conference. Moreover, as discussed above, to the extent possible, VA has obtained the relevant evidence and information needed to adjudicate this appeal. Neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the May 2013 video hearing conference. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. Law and Analysis The Veteran asserts that his skin condition was caused by his active service. Specifically, he contends while spraying the runways of the Yokota Air Force Base, he was exposed to Agent Orange. As a result, he maintains that he has had blisters on his face and arms on and off for over 30 years. In addition, at his May 2013 video conference hearing, he testified that his melanoma of the face was caused by his exposure to Agent Orange. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by 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 the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For purposes of establishing service connection for a disability claimed to be a result of exposure to Agent Orange, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2002). The applicable criteria also provide that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Moreover, the diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne shall have become manifest to a degree of 10 percent or more within one year, after the last date on which the veteran was exposed to an herbicide agent during active service. 38 C.F.R. § 3.307(a)(6)(ii). Service connection may also be granted for any disease 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). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 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 symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). After considering all information and lay and medical evidence of record in a case 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 benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). A review of the record shows the Veteran served in Yokota, Japan during the Vietnam era. He never had service in nor does he allege he ever had any contact with the Republic of Vietnam during service. He is therefore not presumed to have been exposed to Agent Orange or other herbicide agent. The Board also notes that melanoma of the skin and blisters are not among the disabilities which have been associated with exposure to herbicides such as Agent Orange. 38 C.F.R. § 3.309(e). Thus, the presumption afforded under 3.309(e) cannot provide the basis for a grant of service connection. 38 C.F.R. §§ 3.307, 3.309. The Board finds that the Veteran's claim must be denied on this basis. Nevertheless, even if a Veteran is found not to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Ultimately, a non-combat Veteran's lay statements must be weighed against other evidence, including the absence of military records supporting his or her assertions. Bardwell v. Shinseki, 24 Vet. App. 36 (2010). In this case, the Veteran's service treatment records make no reference to any skin problems, either in the way of relevant subjective complaints or objective clinical findings that provide a basis for a diagnosis of a chronic skin disorder. Given the opportunity to identify any pertinent history, symptoms or complaints, at his separation in May 1969, the Veteran denied any history of specific skin disease and no chronic skin problems were noted. Post service records show that during VA examination in July 1975 for his claims for ulcers and a back condition, there were no mention of any skin condition and examination of the skin was negative. Particularly, it was noted that there were no evidence of pallor of the skin and no evidence of jaundice of the skin. It is noteworthy that the July 1975 VA examination occurred a short time after the Veteran alleges he first had blisters on his skin. In this case, the Board is unable to attribute the post-service development of the Veteran's skin disorder to his military service. This skin disorder was not "noted" in service. The claims folder is devoid of any relevant treatment records until a 1988 progress note from Brainerd Medical Center, some 19 years after discharge from service. The 1988 progress note shows that the Veteran had some pigmentation but nothing remarkable. In January 1992, he was treated for a herpetic eruption of the right chin and the angle of the mouth on the left side. In December 1992, the Veteran had a sebaceous cyst removed from the nape of his neck just below his hairline. Then in January 1994, he complained of a lump on his right wrist, which was diagnosed as a ganglion cyst. The Veteran was seen on two more occasions in May 1996 and February 1997 for the ganglion cyst, which was attributed to carpel tunnel syndrome and arthritis. In addition, an August 2003 VA progress note documented that his spouse reported the Veteran developed a rash after taking antibiotics and was using Monistat cream to treat it. There are no records to indicate he received further treatment for the rash. In an August 2003 VA examination report for an unrelated claim, it was noted that he was darkly tanned and had a deep flushed appearance to his facial skin. The August 2003 examiner commented that his examination was quite unremarkable. Then in January 2011, the Veteran sought treatment for a facial lesion on his left cheek. He reported at that time that it had been present for 30 years. It was diagnosed as a large basal cell cancer and removed in February 2011. There follows a lengthy period after service discharge in which there is no evidence of skin problems. The evidence of record shows that the first instance of a skin condition was in 1988, some 19 years after service. In addition, the first treatment for a skin condition was in 1992, some 23 years after service. That is to say, there is no corroborative evidence on file, establishing that the Veteran sought or required treatment or evaluation for skin problems for over 20 years after his service had ended in 1969, consistent with 38 C.F.R. § 3.303(b). Savage, supra. While not a dispositive factor, the significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). It is also notable that when he was examined by VA in July 1975, no skin issues were noted. The Veteran has not asserted consistent symptoms since service separation. Rather, it appears his skin symptoms appear to be intermittent. See VA examination report dated July 1975 (reflecting no skin complaints, or diagnoses). Moreover, the record is negative for medical opinions linking any current skin disorder to service. See Hickson, supra. Consequently, the Board is unable to attribute the development of the Veteran's skin condition to his military service. In reaching the above conclusion, the Board has not overlooked the Veteran's contentions, or his complaints to healthcare providers or his statements. As noted previously, his primary assertion is that he developed a skin condition during service secondary to Agent Orange exposure. The Board is aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994), Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Davidson v. Shinseki, 581 F.3d 1313, 1316. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) also held in Buchanan (and Davidson and Jandreau), however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. So to ultimately have probative value, the Veteran's assertions also have to be credible and judged in relation to the other evidence in the file - including any medical evidence addressing the determinative issue of causation. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno, 6 Vet. App. at 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 133 (Fed. Cir. 2006). The Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; personal interest may, however, affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). That said, the Board notes that the Veteran is not a medical professional, and therefore, his beliefs and statements about medical matters do not constitute competent evidence on matters of medical etiology or diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Although the Board recognizes the sincerity of the arguments advanced by the Veteran in this case, his contentions regarding the etiology of his claimed skin condition are not statements merely about symptomatology, an observable medical condition, or a contemporaneous medical diagnosis, but rather clearly fall within the realm of requiring medical expertise, which he simply does not have. The Board notes that while the Veteran has reported that he was exposed to Agent Orange during active service and it caused his skin problems shortly after being released, these statements are inconsistent with the other evidence of record. As discussed above, there is no indication from the STRs that the Veteran had any contact with Agent Orange while deployed overseas. Further, based on his May 1969 separation examination, there were no complaints or notations of any skin condition. Additionally, he maintains that his skin condition began around the time he sought treatment for his ulcers in 1974. However, at his July 1975 VA examination, he never reported having any skin problems. In fact, at that July 1975 VA examination, it was noted that there was no pallor of the skin and no evidence of jaundice. The evidence of record instead shows that his skin condition manifested at its earliest in 1988 where it was noted that there was pigmentation but unremarkable. It would be another four years before he received any treatment for a skin condition. See Brainerd Medical Center Progress Note dated December 1992. Because the statements provided by the Veteran that he was exposed to Agent Orange during active service and it caused his skin problems shortly after being released are inconsistent with each other and the other evidence of record, the Board finds that these statements are simply not credible. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a skin condition is not warranted. ORDER Entitlement to service connection for a skin condition is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs