Citation Nr: 1415562 Decision Date: 04/09/14 Archive Date: 04/15/14 DOCKET NO. 12-06 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a liver disability. 2. Entitlement to service connection for a heart murmur. 3. Entitlement to service connection for tinea cruris, claimed as excessive rash. 4. Entitlement to service connection for a prostate disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1961 to February 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in August 2010, a statement of the case was issued in January 2012, and a substantive appeal was received in March 2012. The rating decision on appeal denied claims for both a prostate disability and high prostate specific antigen (PSA). As an elevated PSA, by itself, is a laboratory finding and not a disability, both claims have been combined into a single claim for prostate disability, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Also, the decision on appeal denied a service connection claim for anemia, and the Veteran perfected an appeal with respect to that issue. This benefit was granted by a Decision Review Officer rating decision in December 2012 and is, therefore, no longer in appellate status. VA has also already granted a total rating based on individual unemployability due to service-connected disabilities. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for a prostate disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran is not shown to have a liver disability. 2. The Veteran is not shown to have a heart murmur. 3. Tinea cruris was not manifested during the Veteran's active duty service or for many years thereafter, nor is tinea cruris otherwise related to such service. CONCLUSIONS OF LAW 1. Liver disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2013). 2. A heart murmur was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 3. Tinea cruris was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, what information and evidence VA will obtain, and what information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant with proper notice regarding direct service connection by letters dated in August 2009, December 2009, and January 2010. Together, these notices complied with the specificity requirements of Dingess, identifying the five elements of a service connection claim, and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The Board notes that the Veteran claims that a liver disability is secondary to use of prescription medication for service-connected disabilities, and it does not appear that he received specific notice as to the requirements for substantiating a secondary service claim. However, as discussed in greater detail below, there is no competent evidence in the record of any diagnosed liver disability. As the existence of a disability is required for all service connection claims, and the Veteran received such notice, the Board finds that any error in providing additional notice regarding secondary service connection is harmless and not prejudicial to the claimant. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The RO has also obtained the Veteran's service treatment records (STRs), postservice VA treatment records, and those private treatment records identified by the Veteran. Neither the Veteran nor his representative has identified any other pertinent records for the RO to obtain on his behalf. Thus, the Board finds that no additional assistance in this regard is required. With regard to the service connection issues being decided herein, the Board finds that a VA medical examination (with nexus opinion) is not required in order to make a final adjudication. McLendon v. Nicholson, 20 Vet. App. 79 (2006), states that, in disability compensation (service connection) claims, VA must provide a medical examination [for a nexus opinion, as applicable] when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The Board finds that the standards set forth in McLendon are not met with regard to the service connection claims for liver disability, heart murmur, and tinea cruris. As discussed in more detail below, the Board finds that there is no competent medical evidence that the Veteran has ever had a liver disability or heart murmur. With respect to tinea cruris, that disability is not among the listed diseases that may be presumptively service-connected if manifested in an herbicide-exposed veteran, nor is there any competent medical evidence of tinea cruris in service or for many years thereafter. Thus, there is no indication that the Veteran's current tinea cruris is associated with his service. Consequently, a VA nexus opinion is not necessary to adjudicate the claims decided herein. All known and available records have been obtained and associated with the Veteran's claims file. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters and that no further development of the evidentiary record is necessary. VA has complied with the notice and assistance requirements, and the Veteran is not prejudiced by a decision on the claims at this time. Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). To establish service connection for a claimed disability, there must be evidence of: (1) 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, 1166-67 (Fed. Cir. 2004). Service connection on a secondary basis may be established for a disability that was caused or aggravated by a service-connected disability. Briefly, the elements of a successful secondary service connection claim are: (1) medical evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. 38 C.F.R. § 3.310. The determination as to whether the requirements for service connection on a direct or secondary basis are met is based on analysis of the evidence of record and evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 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 Veteran 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). The Board notes that it has reviewed all of the evidence in the Veteran's physical and electronic claims files, with an emphasis on the evidence relevant to the matters on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Liver Disability and Heart Murmur The Veteran seeks service connection for a liver disability he claims is related to herbicide exposure or developed secondary to the "dangerous prescription drugs" he must take for service-connected disabilities. He also asserts that he was diagnosed with a heart murmur during active service. The initial threshold matter that must be addressed here (as in any claim seeking service connection) is whether or not there is competent evidence that the Veteran currently has (or during the pendency of the claim has had) the disabilities for which service connection is sought. In the absence of proof of such current disabilities there is no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998), cert. denied, 526 U.S. 1144 (1999). There is no competent evidence of record that the Veteran has ever had a liver disability. The Veteran's STRs are silent for any complaint of, diagnosis of, or treatment for a liver disability. His STRs include medical examinations conducted in February 1961, April 1961, February 1966, March 1967, January 1969, January 1970, March 1972, May 1973, November 1973, December 1977, and November 1982; none noted any liver disability. There is no objective evidence in the postservice record, medical or otherwise, showing a complaint of, or treatment for, a liver disability. In fact, the extensive medical record (private and VA treatment records) associated with the claims file includes multiple physical examination findings that are negative for any liver disability and urine analyses that are negative for abnormal bilirubin findings. (See, e.g., April 2003 private treatment record noting no liver disability and bilirubin within normal limits; July 2010 private treatment record noting no liver disability; and June 2012 VA treatment record noting normal bilirubin.) In addition, VA examinations (for other conditions) in November 2007, January 2009, and February 2011 specifically note that there are no side effects from the medication used to treat the Veteran's service-connected disabilities (to include diabetes, neuropathy, erectile dysfunction, and degenerative disc disease). Further, although the Veteran asserts that he suffers from a liver disability, he has neither reported a diagnosis nor identified any symptoms that he associates with said disability. Likewise, there is no competent evidence of record that the Veteran has ever had a heart murmur. In a September 2009 statement, he asserted that he was diagnosed with a heart murmur in 1967, while stationed in China. His STRs include medical records for treatment received in 1967, while he was stationed at Ching Chuan Kang Air Force Base in Taiwan, but no heart murmur is noted. STRs from June 1970, while he was stationed at Tan Son Nhut Air Base in Vietnam, indicate that he sought treatment after an oral surgeon suggested that the Veteran might have a heart murmur. The June 1970 treatment provider did not hear a murmur and noted normal heart sounds; there was no evidence of abnormality on cardiac auscultation. The Veteran sought treatment for chest pain on several occasions, but none were associated with any underlying cardiac disability. In March 1969, chest pain was diagnosed as muscular pain. In February 1981, chest pain was described as feeling "like gas" and Mylanta was prescribed. In May 1982, he requested an electrocardiography (EGK) test due to chest pain radiating down his left arm. The EKG was conducted in June 1982, with no significant abnormalities noted. The impression at that time was of intercostal muscle spasm or splenic flexure syndrome. The Veteran's STRs are otherwise silent for any complaint of, diagnosis of, or treatment for, any cardiac disability, to include a heart murmur. His STRs include medical examinations conducted in February 1961, April 1961, February 1966, March 1967, January 1969, January 1970, March 1972, May 1973, November 1973, December 1977, and November 1982; none noted any heart disability. EKGs conducted in February 1966, March 1967, January 1969, March 1972, December 1977, and November 1982 were all within normal limits. There is no objective evidence in the postservice record, medical or otherwise, showing a complaint of, diagnosis of, or treatment for any heart disability. In fact, the extensive medical record (private and VA treatment records) associated with the claims file includes multiple physical examination findings, to include EKGs, that are negative for any heart murmur or other disability. (See, e.g., April 2003 private treatment record noting no heart murmur; July 2010 private treatment record noting a "regular rhythm with no murmurs"; and November 2012 VA treatment record noting no murmur.) Furthermore, VA examinations (for other conditions) in November 2007, January 2009, February 2011, and March 2010 specifically note that, on physical examination, the Veteran does not have a heart murmur and did not identify any other cardiac disabilities. [The Board does note the June 2009 private treatment record (created prior to the Veteran's September 2009 claim) stating "no significant murmur appreciated," which the Board understands to mean that there was no murmur of clinical significance noted and, thus, no disability diagnosed.] The Board has considered the Veteran's lay statements that he has both a liver disability and a heart murmur. While he is competent, as a lay person, to report symptomatology he experiences through his senses, 38 C.F.R. § 3.159(b), the diagnosis of those conditions is a complex medical question and requires competent medical evidence, see Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran had not demonstrated that he has the specialized education, training, or experience required to competently diagnose heart or liver disabilities. 38 C.F.R. § 3.159(a). Furthermore, he has not reported that he experiences any symptomatology related to a liver or heart disability. Thus, his lay statements asserting such diagnoses have no probative value. In summary, the record is silent for any objective evidence of a liver or heart disability, to include a murmur. The Veteran has not satisfied the threshold legal requirement for establishing service connection for such disabilities or presented valid claims of service connection. See Brammer, supra. Consequently, the preponderance of the evidence is against these claims. In such a situation, the benefit of the doubt doctrine does not apply; the appeals in these matters must be denied. Tinea Cruris The Veteran asserts that he suffers from a chronic rash that is related to his military service. VA treatment records from October 1990 to August 2011 note recurring (but not continuous) episodes of a fungal infection, diagnosed as tinea cruris, in his groin area, for which he has been prescribed an anti-fungal topical ointment. (See, e.g., October 1990 VA treatment record noting severe tinea cruris and August 2011 VA treatment record noting a long history of recurrent fungal infections and diagnosis of tinea cruris.) [The Board notes that in a February 1986 statement, the Veteran he asserted that he had "a rash that comes and goes"; however, no diagnosis was reported and, as discussed further below, he is not competent to provide such diagnosis.] Assuming, arguendo, that the Veteran's tinea cruris is a chronic disability, there is no competent evidence suggesting a nexus between that disability and his military service. The Veteran's STRs reflect treatment in July 1966 for an itchy rash on his neck that was presumed to be fungal. However, when skin scrapings were obtained and submitted for laboratory testing for the presence of fungal infection, no fungal forms were seen. He was also treated in February 1981 for "scaly lichenified lesions" on his right shoulder. The record is difficult to read, but appears to note an impression of a lichen skin disability. Aristocort cream, a topical corticosteroid, was prescribed. Thus, the record does not reflect that he received treatment in service for a diagnosed fungal infection. Furthermore, the Veteran received 11 medical examinations during service; in each case, his skin was clinically evaluated to be normal. On the accompanying medical history reports, he consistently denied ever having a skin disability or disease. His skin was clinically evaluated as normal on separation from service. The Board has considered the Veteran's lay statements alleging a nexus between a current fungal skin disability and his military service. However, as noted above, he has not demonstrated that he has the requisite medical training and experience to provide a competent medical nexus statement. Thus, his lay statements regarding nexus are of no probative value. There is no evidence of a fungal skin disability in service, the first postservice evidence of diagnosed tinea cruris/fungal rash was over seven years after service separation, and, under 38 C.F.R. § 3.309, tinea cruris (or any similar disability) is neither a chronic disease nor associated with exposure to herbicides. As there is no competent evidence of record linking the Veteran's current skin disability to his service, the benefit-of-the-doubt rule does not apply, and the claim must be denied. ORDER Entitlement to service connection for a liver disability is not warranted. Entitlement to service connection for a heart murmur is not warranted. Entitlement to service connection for tinea cruris is not warranted. To this extent, the appeal is denied. REMAND The Veteran asserts that he has a prostate condition, manifested in part by high PSA, that is related to his military service as a result of herbicide exposure or, on a secondary basis, to postservice medications for service-connected disabilities. In addition to high PSA, his postservice VA treatment records reflect that he has been taking Terazosin, which is used to treat symptoms of an enlarged prostate, since March 2012. Prostate hypertrophy is contemplated by the disability rating schedule. See 38 C.F.R. § 4.115b, Diagnostic Code 7527. Thus, the record suggests that the Veteran has a current prostate disability. As the Veteran is presumed to have been exposed to herbicides and is service-connected for disabilities that require medication, there is an indication that a current prostate disability may be related to service. Remand is required for a VA medical opinion addressing whether he has a current prostate disability and, if so, whether it is related to service on a direct, presumptive, or secondary basis. See McLendon, supra. Additionally, the Veteran should be provided secondary service connection VCAA, as he asserts such a claim and has not yet received the appropriate notice. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. The RO should furnish the Veteran with VCAA notice of the requirements necessary to substantiate a secondary service connection claim. 2. The RO should ask the Veteran to identify the provider(s) of any additional treatment or evaluation for a prostate disability, records of which are not already associated with the claims file, and to provide any releases necessary for VA to secure identified private treatment records. The RO should obtain complete records of all pertinent treatment and evaluation (that are not already of record) from all sources identified by the Veteran. If any private records are not received, the Veteran should be so advised and reminded that ultimately it is his responsibility to ensure that such records are received. 3. After completion of the above, the RO should schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the claimed prostate disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated tests and studies should be performed and clinical findings reported in detail. a) The examiner should clearly report whether there is current prostate disability. b) If so, the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability), that such disability is causally related to any injury or incident during service, to include herbicide exposure. c) The examiner should also offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability), that such disability is proximately due to, or aggravated by, a service-connected disability, to include use of prescribed medications. A complete rationale must be provided for all opinions expressed. 4. After completion of the above and any additional development the RO may deem necessary, the RO should review the expanded record and readjudicate the claim. The Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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. 2013). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs