Citation Nr: 1607362 Decision Date: 02/25/16 Archive Date: 03/04/16 DOCKET NO. 09-22 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a compensable evaluation for a left thumb scar. 2. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1970. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Board has recharacterized the claimed condition "left thumb laceration" as "left thumb scar" to better reflect the medically recognized condition present during the claim period rather than the initial in-service injury. The Board remanded the appealed claims in July 2013; they now return for further review. The record before the Board consists of the physical claims files and electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. The Veteran was exposed to herbicide agents in service. 2. The Veteran's prostate cancer is presumptively due to his herbicide exposure in Korea. 3. At all times during the pendency of the claim, the left thumb scar has not been, to any disabling degree, tender or painful or unstable or deep or adherent to underlying tissues, has not limited function, and has not affected an area of 144 square inches. CONCLUSIONS OF LAW 1. Prostate cancer is presumed to have been incurred by his service. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 2. The criteria for a compensable disability rating for left thumb scar have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7801-7805 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), 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. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2014) 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 that the Veteran was provided all required notice in June 2004 and December 2004. These notice letters were prior to the June 2005 decision denying these claims. The Veteran was provided additional, subsequent development notice letters addressing the appealed claims. Regarding the duty to assist, the Board finds that all necessary assistance has been provided to the Veteran. VA has obtained the Veteran's service treatment records and post-service treatment records. In addition, the Veteran was afforded appropriate VA examinations in September 2004 and December 2015 addressing his left thumb scar. The examiners provided adequate findings and conclusions, supported by adequate rationale, to allow for the Board to properly adjudicate the claim, including weighing these examiners' findings and conclusions against contrary evidence. The Veteran has not asserted, and the evidence does not otherwise show that the left thumb scar has increased in severity since the most recent VA examination in December 2015. VA has developed specific procedures to determine whether a veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea. See M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 10(o) (December 16, 2011). The Veterans Benefits Administration's (VBA's) Adjudication Procedure Manual (M21-1MR) directs that the Veteran should be asked for the approximate dates, location, and nature of the alleged herbicide exposure and his detailed description of exposure should be furnished to the Compensation and Pension Service (now known as the Compensation Service) with a request to review the Department of Defense's inventory of herbicide operations to determine whether herbicides were used as alleged. If Compensation Service's review confirms that herbicides were used as alleged, then a determination must be made as to whether service connection is in order. If Compensation Service's review does not confirm that herbicides were used as alleged, then a request should be sent to the Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides. These above procedures have been appropriately carried out, as discussed in detail below. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. In his VA Form 9 in June 2009 as well as in a separate signed statement in June 2009, the Veteran declined the opportunity of a hearing to support of his appealed claims. The Veteran has not identified any outstanding 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 its duty to assist the Veteran in the development of the facts pertinent to these claims. The December 2015 examination of the Veteran's left thumb scar and above-noted herbicide agent development through official channels were required by the Board's July 2013 remand. Remand directives were substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). Accordingly, the Board will address the merits of the claims. II. Burdon of Proof 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 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015); 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. Prostate Cancer Service Connection Claim Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 3 8 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Where a veteran served for at least 90 days during a period of war and manifests a malignant tumor to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a disease first 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). Prostate cancer is among the diseases subject to presumptive service connection on the basis of herbicide agent (Agent Orange) exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). Factual Background and Analysis Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). However, the Veteran has not contended and the evidence does not otherwise show that the Veteran was in Vietnam during service. Service connection may still be established for the prostate cancer based on the Veteran being otherwise exposed to herbicide agents in service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A letter sent to the Veteran in September 2004 requested that he provide evidence of prostate cancer and of herbicide exposure in service. VA treatment records include documentation of radical prostatectomy performed in December 2004 for prostate cancer. This cancer was not diagnosed until many years following service. Thus, while diagnosed prostate cancer is established by the record, the Veteran's exposure to herbicides in service is not. The Veteran asserted the following in a notice of disagreement received in August 2005: I was in Korea during the time they sprayed Agent Orange in that country. I was in the DMZ and the area that was sprayed in Korea in July of 1969. I got to Korea in early June 1969. I picked up personnel and supplies and laundry in the DMZ area in June and July 1969. The Department of Defense (DoD) has confirmed that the herbicide, Agent Orange, was used from April 1968 through July 1969 along the Korean DMZ to defoliate the fields of fire between the front line defensive positions and the south barrier fence. The treated area was a strip of land 151 miles long and up to 350 yards wide from the fence to north of the civilian control line. There is no indication that the herbicide was sprayed in the DMZ itself. Both the 2nd and 7th Infantry Divisions, United States Army, had units in the affected area at the time Agent Orange was being used. Field artillery, signal, and engineer troops also were supplied as support personnel during the time of the confirmed use of Agent Orange. The estimated number of exposed personnel is 12,056. If it is determined that a veteran who served in Korea during this time period belonged to one of the units identified by DoD, then it is presumed that he or she was exposed to herbicides containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) will apply. See MR21-1MR, Part IV, Subpart ii, Chapter 2, Section C. See Veterans Benefits Administration (VBA) "Fact Sheet" dated in September 2003 (http://vbaw.vba.va.gov/bl/21/publicat/Letters/Other/AoKorea. doc). A veteran who, between April 1, 1968, and August 31, 1971, served in a unit that the Department of Defense (DoD) has determined to have operated in an area in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period shall be presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iv) (2015). The RO undertook development to ascertain whether the official records could establish the Veteran's presence in the vicinity of the DMZ or his exposure otherwise to herbicide agents during his stationing in Korea. A query to the service department for morning reports of the 258th Signal Company, 304th Signal Battalion, from June 1969 to July 1969, for any remarks regarding stationing of the Veteran's unit near the DMZ, produced a December 2008 reply that the National Archives and Records Administration (NARA), College Park, Maryland, should be contacted for after action reports and unit histories because these histories were not part of morning reports. The RO in January 2009 accordingly sent a query letter to the NARA for any action reports or unit histories with verification that the Veteran's unit was stationed near the DMZ between June 1969 and July 1969, based on the Veteran's service in Korea from June 1969 to March 1970, and based on DOD information that herbicides were used along the DMZ between April 1968 and July 1969. A January 2009 reply from the NARA informed that they located an annual historical supplement of the 304th Signal Battalion for 1969, and provided a copy. They could not locate separate records of 258th Signal Company (Construction). They also researched records of the U.S. Army Operational, Tactical, and Support Organizations, but found no additional information concerning the 304th Signal Battalion or the 258th Signal Company. The Veteran provided the following history in a statement submitted in June 2009: During my enlisting with the [A]rmy 258th Signal Company as a duty driver for transporting supplies, cargo, and personnel. (sic) One day after an I.G. inspection I was instructed to remove all ammunition from the ammunition dump and have it disposed of at a P.D.O. camp. During the removal of the ammunition there [were] four containers of herbicides agent orange, which had deteriorated the containers and leaked out and there was no way to load these containers except by hand. So therefore, we used tree leaves to protect ourselves. After getting all loading removed out of the camp, the camp was closed that day. So I returned with cargo late that evening and locked the truck in the motor pool. The Veteran then provided the names of two fellow soldiers whom he asserted accompanied him in these activities. He did not, however, provide any statements or affidavits from these named fellow soldiers. In a signed letter in March 2012, the Veteran reported that he came into contact with an herbicide agent that had been stored in his company ammunition dump, with four containers that were corroded and leaking the herbicide. The Veteran then additionally alleged, "When I arrive to signal company the herbicide has been sprayed in the area." In July 2013 the Appeals Management Center (AMC) obtained service personnel records to verify the Veteran's unit. These verified that the Veteran was attached to the 258th Signal Company, 304th Signal Battalion, as a pole lineman while stationed in Korea from June 1969 to March 1970. The AMC then made a request to the service department to verify whether the Veteran, as a pole lineman with the 258th Signal Company, 304th Signal Battalion, was located near the DMZ in Korea during the period from June 1969 to March 1970. A reply in July 2013 informed that there was no specific information about such an exposure. A query to the U.S. Joint Service Records Research Center (JSSRC) in September 2013 and again in December 2013 sought information regarding any exposure to herbicides associated with the 258th Signal Company, 304th Signal Battalion, for the period from June 1969 to March 1970. In a December 2013 reply, the JSSRC informed that they had reviewed the 1969 unit history of the 304th Signal Battalion, which documented that the 258th Signal Company was assigned to the 304th Signal Battalion. The history further documented that the 258 Signal Company was located at Camp Grant, South Korea, approximately 27 miles from the DMZ, but that the history did not document the 258th Signal Company's use, storage, spraying, or transportation of herbicides. The JSSRC thereby concluded that it could not verify or find any evidence of in-service herbicide exposure associated with the 258th Signal Company, 304th Signal Battalion, during the time the Veteran served in Korea. The Veteran provided a slightly different report of his contact with herbicides in a submitted statement signed in June 2015. He then stated the following: I served in the military and was sent to Camp Casey, Korea in 1969. During my tour there, I came in contact with what I thought to be agent orange that was being stored in portable can sprayers on the base. I was told to carry four of the older sprayers to the proper disposal area near the base without any protective gear for my body or face. The cans had chemicals leaking out all over them. I believe that it was agent orange because of the familiar smell that was being sprayed on the perimeter of the base and around the buildings. A July 2015 VA request to the JSRRC sought verification of the Veteran's herbicide agent exposure based on the above-quoted submission in June 2015 asserting his disposal of herbicide agent sprayers. An October 2015 reply from the Defense Personnel Records Informal Retrieval System (DPRIS) (formerly the JSRRC) informed that they had reviewed the 1969 unit history submitted by the 258th Signal Company (Construction), which documented that they were assigned to the 304th Signal Battalion, which was stationed at Sector 3, Compound #44, ASCOM (Army Support Command), South Korea. The history documented that the unit was responsible for underground cable between Camp Casey and Camp Alex Williams. The history did not document the use, storage, spraying, or transportation of herbicides or their disposal at Camp Casey. The unit history also did not mention or document any specific duties performed by the unit members along the DMZ. As already noted, service personnel records inform that the Veteran served in Korea from June 1969 through May 1970, and was then attached to the 258th Signal Company, 304th Signal Battalion, with an occupational specialty then of pole lineman. The Veteran's installation clearance record for his service separation in March 1970 reflects that the Veteran was then at Sector # 3, Compound #44, ASCOM, Korea. This is consistent with the reply received from DPRIS and the 1969 unit history DPRIS received for the 258th Signal Company, 304th Signal Battalion. Given all of the above, the Board finds the evidence supporting the Veteran's presence near the DMZ and exposure to herbicides to be in relative equipoise. He claims he picked up personnel and supplies and laundry in the DMZ area in June and July 1969. The kind of exposure that the Veteran claims is inherently difficult to corroborate through official service documents; however the records do not explicitly contradict the Veteran's statements, rather they are somewhat silent. This statement is not inconsistent with the rest of the Veteran's service. Therefore, providing the Veteran the benefit of the doubt, presumptive service connection is warranted for prostate cancer on the basis of such exposure. IV. Left Thumb Scar Rating Claim Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2015). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In every instance where the schedule does not provide a noncompensable evaluation for a diagnostic code, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Board notes that the criteria pertaining to rating skin disabilities were revised, effective October 23, 2008. However, those revised provisions are applicable only to claims received on or after October 23, 2008, unless the claimant requests review under the revised criteria. 73 Fed. Reg. 54708 (Sept. 23. 2008). Because the current claim was received prior to that date and the Veteran has not requested that his scars be rated under the revised criteria, the revisions do not apply in this case. Under the criteria in effect prior to October 23, 2008, a 10 percent evaluation is warranted for scars covering an area of 144 square inches or greater where superficial and without resulting limited motion; for a superficial, unstable scar (characterized by frequent loss of skin covering the scar); or a superficial scar that is painful on examination. 38 C.F.R. § 4.118, Diagnostic Codes 7802 to 7804 (2008). Under Diagnostic Code 7801, scars other than on the head, face, or neck, where such are deep and cause limited motion, warrant a 10 percent rating if they cover an area exceeding six square inches; a 20 percent rating if covering an area exceeding 12 square inches; a 30 percent rating if covering an area exceeding 72 square inches; and a 40 percent rating if covering an area exceeding 144 square inches. Otherwise, scars will be rated on the limitation of motion of the affected part, under Diagnostic Code 7805. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1 , 4.2, 4.41, 4.42 (2015) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to these disabilities. Upon VA examination in September 2004, the Veteran's history was noted of injury to the left hand while a cable reel was being loaded onto a truck, causing a crush injury to the hand as well as a laceration 11/2 inches long along the ulnar side of the thumb. The wound was cleaned and sutured and healed without infection. The examiner noted that the Veteran had current ongoing pain in the hand. The examiner reviewed numerous current and past medical conditions of the left hand as well as other parts, but found no disability attributable to the left thumb scar. Rather, the examiner observed that the left thumb scar on the ulnar side was 5 centimeters long without adherence to underlying tissue. There was mild deformity of the proximal portion of the thumbnail which was more pronounced than on the right side, but there was not associated pain or nail irregularity. Findings of the left hand were suggestive of degenerative joint disease. The examiner concluded that while the Veteran reported pain and numbness, he found this to be "more subjective than objective." Notably, the examiner observed that the Veteran had significant roughened scars of each extremity resulting from burns sustained from a fire, for which the Veteran had reportedly undergone three surgeries for each arm with skin grafting. In contrast, the skin scar resulting from the thumb laceration in service was noted to have "minimal residuals" with "no major functional impairment." Upon VA examination in December 2015, the Veteran was noted to have a history of left thumb laceration in service in 1969 with residual scar. The Veteran reported the injury as having resulted when a reel of cable was dropped on his left hand/wrist. He complained of chronic wrist pain and stiffness for which he wore a wrist brace on a constant basis. The examiner found left thumb flexion of the metacarpophalangeal joint to 100 degrees and of the interphalangeal joint to 90 degrees, and left thumb extension of both the metacarpophalangeal joint and the interphalangeal joint to zero degrees. The Veteran had no gap between the thumb pad and the fingers and no gap between the thumb and the proximal transverse crease of the hand on maximal flexion. Range of motion in the left hand was noted to be within normal limits with the exception of ankylosis present in the fifth digit. While the Veteran had pain, it did not result in or cause functional loss. Opposition of the fingers to the thumb resulted in pain. Additionally, the Veteran reported that his fingers intermittently locked up but that this resolved with rest. Addressing the left thumb scar specifically, the examiner found that it did not result in impairment of other parts or result in other conditions of the hand, that it was not painful or unstable, that it did not have a total area equal to or greater than 39 square centimeters (6 square inches), and that it was not adherent to underlying tissue. The scar was measured at 6 centimeters in length by 0.1 centimeter in width. The examiner assessed left hand/wrist pain and left carpal tunnel syndrome, and diagnosed degenerative joint disease of the left hand and wrist. However, the examiner did not assess any disabling condition associated with the Veteran's left thumb scar. While the Veteran is competent to address the presence of symptoms such as pain and numbness, he is not competent to attribute these symptoms to one disability versus another, which are distinctly medical questions. The Veteran has not been shown to possess the requisite expertise or knowledge to address these questions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Thus, while the Board accepts the Veteran's reports including at VA examinations of pain and numbness in the thumb as well as in other parts of the left hand and wrist, as noted by VA examiners, the weight of the competent and credible evidence, including the findings and conclusions of the medical examiners, is to the effect that any disabling pain and numbness shown at the examinations is attributable to the Veteran's arthritis of the left wrist and hand, which are already separately service connected disabilities. The Board finds the balance of the medical record to be consistent with and supportive of the December 2015 VA examiner's findings of absence of disability associated with the left thumb scar. The Board finds that pain and impaired functioning in the left wrist and hand/thumb have been appropriately attributed to service-connected arthritis of these parts, with compensable ratings for the wrist and hand assigned on these basis. The preponderance of the evidence is against additional disability being present at any time during the pendency of the claim due to the Veteran's left thumb scar, including on the basis of attributable significant pain or tenderness or unstable scar or deep scar or adherence to underlying tissue or effect on functioning of underlying parts or presence of scar affecting an area of 144 square inches. The Board has considered the rating criteria for scars applicable to claims filed prior to October 23, 2008, and finds that no compensable rating is warrant for any interval during the claim period. 38 C.F.R. § 4.118, Diagnostic Code 7801-7805. Thus, the Board concludes that staged ratings for the left thumb scar are also not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has also considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. The Board has also considered whether the claim should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the left thumb scar is not shown to be symptomatic to any disabling degree or productive of functional impairment. Therefore, there is no reason to believe that the severity of disability is productive of impairment warranting referral for extraschedular consideration. ORDER Service connection for prostate cancer is granted. A compensable rating for left thumb scar is denied. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs