Citation Nr: 1726257 Decision Date: 07/10/17 Archive Date: 07/20/17 DOCKET NO. 13-25 491A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for a skin tag (originally claimed as a third nipple), to include as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD B. Thompson, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from May 2013 and March 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in December 2016 when the claim for hearing loss was reopened, and the case was remanded for additional development. The issue of service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran served in Vietnam and is presumed to have been exposed to Agent Orange. 2. A skin tag or third nipple was not shown in service and there is no competent evidence linking any current skin tag condition to service. CONCLUSION OF LAW The requirements to establish service connection for a skin tag have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. VA's duty to notify was satisfied by letter in March 2013. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, post-service treatment records, records from the Social Security Administration, and VA examination reports. The Veteran was afforded a hearing before the Board and a copy of the transcript is of record. There is no allegation that the hearing provided to the Veteran was deficient in any way. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). Additionally, there has been substantial compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). A VA skin examination was conducted in January 2017, and an opinion from the VA examiner was provided. After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2014), 38 C.F.R. § 3.303 (2016). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2016); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2016). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran initially contended that he developed a third nipple as a result of his exposure to Agent Orange in service. He has since clarified that the skin disorder was actually a skin tag. Veterans who, during active military, naval, or air service, served in the Republic of Vietnam from February 28, 1961 to May 7, 1975, shall be presumed to have been exposed to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service, and certain diseases may be presumed to have resulted from such herbicide agent exposure. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Herbicide agents to which he is presumed to have been exposed in service are hereinafter addressed simply as "Agent Orange." The Veteran's service personnel records indicate he served in the Republic of Vietnam from January 5, 1969 to January 3, 1970; therefore, his exposure to Agent Orange is presumed. See 38 U.S.C.A. §§ 1116, 1154. A skin tag, or third nipple, is not included among the list of presumptively service-connected diseases based on Agent Orange exposure. See 38 C.F.R. § 3.309(e). Nonetheless, the Board must still consider whether the evidence supports a causal link between service and the skin tag. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran contends that his skin tag, which was previously claimed as a third nipple, started right after he got home from Vietnam in January 1970. The Board notes he was discharged from service on January 4, 1970, the day after leaving Vietnam. His separation examination on January 4, 1970 revealed no skin lesions on the chest, nor were any noted in prior service treatment records. Thus, based on the evidence, the Veteran's claimed skin tag/third nipple had to manifest after his discharge from service. Skin tags/third nipples are not considered chronic conditions for purposes of the presumptive provisions of 38 C.F.R. § 3.309(a). Accordingly, to establish service connection for such conditions, they must be shown in service and/or be linked by competent medical opinion to service. However, there is no competent medical opinion linking the Veteran's claimed skin tag/third nipple to service. In this regard, a VA skin examination was conducted in January 2017. The Veteran reported to the examiner that he had a skin lesion on his right chest wall for many years after Vietnam, and he considered it to be a third nipple or a skin tag. The Veteran advised the VA examiner that this skin lesion, or skin tag, was removed by his private doctor about two or three years ago with no residual disability. After a review of the claims file, as well as an in-person examination, the examiner opined that the claimed condition was less likely than not incurred in or caused by an in-service event, injury, or illness. The examiner stated that there was no diagnosis at the time; the skin lesion had been removed and resolved without any evidence of residuals. The examiner explained that he was unable to locate any treatment records concerning treatment and removal of a skin lesion. Further, the examiner noted that there was no evidence of a skin lesion or condition upon examination, which suggests complete resolution without any evidence of residual disability condition. Upon consideration of all of the evidence of record, the Board finds that the preponderance of the competent and probative evidence is against the claim. In this case, the most probative evidence of record indicates that the skin tag/third nipple was not shown in service, nor is the condition or residuals thereof currently shown. In the absence of competent medical evidence linking the Veteran's claimed skin tag to service, service connection for the claimed condition cannot be established. While the Veteran believes that his skin tag was related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of skin lesions are matters that require medical expertise to determine. Accordingly, his opinion as to the etiology of his skin tag is not competent medical evidence. For the reasons set forth above, the Board concludes that the preponderance of the evidence is against the claim for service connection for a skin tag disability, and the appeal is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a skin tag (originally claimed as a third nipple) is denied. REMAND With respect to the Veteran's claim for service connection for bilateral hearing loss, the record indicates that there are outstanding VA treatment records. The matter was remanded in December 2016 in part for the AOJ to obtain VA treatment records; however, it does not appear that such action was taken. In several statements, the Veteran indicated that he underwent a hearing test at the VA Medical Center (VAMC) located in Shreveport, Louisiana as early as 1997. There are no VA treatment records from the Shreveport VAMC associated with the evidence before the Board, and there is no indication that the RO has requested these records. Additionally, the Veteran has also indicated that he had treatment at the Houston VAMC, to include the Outpatient Center (OPC) located in Lufkin, Texas. The record does not contain the aforementioned treatment records. Accordingly, on remand all outstanding VA treatment records must be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records from 1997 to the present, to include all VA treatment records from the Shreveport and Houston VAMCs, as well as any OPCs associated with those VAMCs. If no records exist the claims file should be annotated to reflect such and the Veteran notified of such. 2. After completing the requested actions, and any additional action warranted, the AOJ should readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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 2014). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs