Citation Nr: 1719476 Decision Date: 06/01/17 Archive Date: 06/14/17 DOCKET NO. 13-00 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a left foot disorder, to include as due to in-service chemical exposure or as secondary to service-connected plantar fibromatosis of the right foot. 2. Entitlement to service connection for hand and testicle disorders, claimed as "tumors," to include as due to in-service chemical exposure or as secondary to service-connected plantar fibromatosis of the right foot. REPRESENTATION Veteran represented by: West Virginia Department of Veterans Assistance WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD E. Duthely, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1974 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In October 2014, the Veteran and his wife testified before the undersigned Veterans Law Judge at a videoconference hearing. During the hearing, the undersigned engaged in a colloquy with the Veteran and his wife toward substantiation of the claim. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A transcript of the Board hearing is included in the electronic claims file. FINDING OF FACT The Veteran's left foot plantar fibromatosis and tumors of the hands and testicles did not manifest in service and are not related to service or to any service-connected disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for a left foot disability, to include as secondary to the service-connected right foot disability, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2016). 2. The criteria for service connection for tumors of the hands and testicles, to include as secondary to the service-connected right foot disability, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). VA's duty to notify was satisfied by a September 2011 letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA's duty to assist includes helping claimants to obtain service treatment records and other pertinent records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment and personnel records, and VA medical records. The Veteran has not identified any outstanding records needing to be obtained. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c). VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The April 2015 and October 2016 VA examiners performed in-person examinations, and provided clear explanations in support of the opinions and findings. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). The VA examinations and medical opinions are adequate to decide the Veteran's claim. The claim was remanded in February 2016 in order to retrieve the Veteran's VA treatment records, and to provide the Veteran with VA examinations to determine the nature and etiology of his left foot plantar fibromatosis as well as any hand and testicle disorders. The Veteran's records were retrieved and the Veteran was afforded an in-person examination in October 2016. Therefore, there is substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). VA has satisfied its duties to notify and assist. The Board may proceed with appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Establishing service connection generally requires (1) medical evidence of a current 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 claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Malignant tumors and tumors of the brain or spinal cord or peripheral nerves are considered by VA to be "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. Plantar fibromatosis is not a chronic disorder presumptively linked through these provisions. Where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; see also 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d 1372, 1377. The Veteran demonstrates a current disability. The Veteran was diagnosed with left foot plantar fibromatosis in August 2000. The Veteran was first treated for testicular tumors in October 1991. The Veteran was first treated for fibromas of his hands in August 2000. However, the preponderance of the competent evidence is against the Veteran's claims. Upon VA examination in April 2015, the VA examiner opined that the Veteran's left foot plantar fibromatosis and tumors of the hands and testicles were less likely than not related to the Veteran's service. The examiner noted that there is no documentation that the Veteran was exposed to chemicals in service, and no evidence to support that the Veteran's claimed conditions were caused by his service. The examiner also opined that the Veteran did not have a skin condition on his left hand. The examiner further opined that there was no way to connect the Veteran's plantar fibromatosis and his testicular tumors, and again opined that the Veteran did not have a skin condition concerning his hand. The VA examiner also noted that plantar fibromatosis has no precisely known cause, but is believed by some to be a genetic condition. Lastly, the VA examiner opined that the Veteran's testicular tumors were not aggravated by his right foot plantar fibromatosis as, "without pathological diagnosis and evidence of similar or related histological pathologies, [he] cannot say that these entities are related." Upon VA examination in October 2016, the VA examiner opined that the Veteran's left foot plantar fibromatosis and tumors of the hands and testicles were less likely than not related to the Veteran's service. The examiner opined that plantar fibromatosis is a genetic disorder, and that there is no scientific evidence to support the contention that it can be caused by chemical exposure. The examiner also opined that the Veteran's right foot plantar fibromatosis did not cause or aggravate the Veteran's left foot fibromatosis. The examiner further opined that the Veteran's hand tumors were not a result of his active service, as they did not develop until many years after separation. The examiner noted that Dupuytren's is a condition that tends to occur in people of Irish/Scottish descent and is not caused by any chemical exposure. The examiner also opined that the Veteran did not possess a current disability in either hand. Lastly, the examiner opined that the Veteran's testicular tumors were not a result of his active service, as spematocoele was operated in 1991, 16 years after separation. He also noted there is no scientific literature that suggests that any chemical exposure causes this condition and that there is no scientific literature that any foot condition causes any genitourinary condition. The April 2015 and October 2016 VA examiners provided opinions that preponderate against the Veteran's claim. The opinions provided by the VA examiners are competent and probative evidence. The VA examiners provided the Veteran with in-person examinations, reviewed the claims file and provided medical opinions supported by adequate rationale. The record does not contain any competent medical evidence suggestive of a nexus between the Veteran's service and left foot plantar fibromatosis or tumors of the hands and testicles. The Veteran's April 1974 separation examination was absent of any left foot disorder, hand disorder, or testicular disorder. The Veteran was first diagnosed with left foot plantar fibromatosis and fibromas of his hands in August 2000, nearly 25 years after separation and testicular tumors in October 1991, more than 15 years after separation. There is no objective evidence of record that the Veteran was exposed to chemicals or herbicides during active service. The Veteran submitted lay statements in support of his claims from his wife and a friend, contending that his left foot plantar fibromatosis and tumors are a result of his active service. However, while the Veteran's wife and friend have attempted to establish a nexus through their own lay assertions, they are not competent to offer an opinion as to the etiology of the Veteran's left foot plantar fibromatosis and tumors due to the medical complexity of the matter involved. Fibroma disorders require specialized training for a determination as to diagnosis and causation, and are therefore not susceptible to lay opinions on etiology. Thus, the Veteran's wife and friend are not competent to render a nexus opinion of attempt to present lay assertions to establish a nexus between the Veteran's current diagnosis and service. See Jandreau, 492 F.3d 1372, 1377. As the preponderance of the evidence demonstrates that the Veteran did not experience chronic symptoms of left foot plantar fibromatosis or tumors in service, continuous symptoms since service, or compensable manifestations within one year of service separation, presumptive service connection for left foot plantar fibromatosis and tumors of the hands and testicles may not be established. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Absent competent, credible, and probative evidence of a nexus between the Veteran's left foot plantar fibromatosis and tumors of the hands and testicles and his active service, the Board finds that the Veteran's claimed disorders are not etiologically related to service. See 38 U.S.C.A. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits."); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA...the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); see also Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). Accordingly, service connection for left foot plantar fibromatosis and tumors of the hands and testicles is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for plantar fibromatosis of the left foot is denied. Service connection for hand and testicle tumors is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs