Citation Nr: 18151069 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 15-31 321A DATE: November 16, 2018 ORDER Service connection for lymphoma, to include dyshidrotic mycosis fungoides, is denied. The August 24, 1992 Department of Veterans Affairs (VA) Regional Office (RO) rating decision denying service connection for status post left thoracotomy for granuloma was not clearly and unmistakably erroneous (CUE). REMANDED Entitlement to special monthly compensation (SMC) by reason of being housebound is remanded. The question of CUE in a September 18, 2008 rating decision that granted service connection for status post left thoracotomy for granuloma and then rated it alongside the already service connected bronchial asthma is remanded. FINDINGS OF FACT 1. Prior to and during the relevant period on appeal, the Veteran was not diagnosed with any form of lymphoma, to include dyshidrotic mycosis fungoides, and any symptoms resembling lymphoma are due to either the Veteran’s service connected onychomycosis or non service connected skin disabilities. 2. The evidence has not established, without debate, that the correct facts, as then known, were not before the RO at the time of the August 24, 1992 rating decision, or that the RO incorrectly applied the applicable laws or regulations existing at the time. CONCLUSIONS OF LAW 1. The criteria for service connection for lymphoma, to include dyshidrotic mycosis fungoides, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2017). 2. The August 24, 1992 rating decision denying service connection for status post left thoracotomy for granuloma was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from February 1972 to February 1976, and from January 1979 to March 1987. This matter came before the Board of Veterans’ Appeals (Board) on appeal from September 2013 and September 2014 rating decisions of the RO in Jackson, Mississippi. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). VA’s duties to notify and assist claimants under the VCAA do not apply to claims alleging CUE. Parker v. Principi, 15 Vet. App. 407 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Therefore, no further discussion of VCAA duties to notify or assist will take place regarding the CUE issues on appeal. Further, as the instant matter remands the question of entitlement to SMC by reason of being housebound, no further discussion of VCAA duties to notify or assist is necessary as to that issue. Concerning the duty to notify, the record reflects that the Veteran received adequate VCAA notice prior to the issuance of the rating decisions on appeal. Regarding the duty to assist, the record reflects that VA obtained all relevant documentation to the extent available and provided the Veteran with an adequate VA lymphoma examination in September 2013. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In a September 2015 brief, the Veteran’s representative challenged the adequacy of the September 2013 VA lymphoma examination. The representative’s arguments are addressed in detail below; however, for reasons that will be subsequently discussed, the Board does not find the September 2013 VA lymphoma examination to be inadequate. For these reasons, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. 1. Service Connection for Lymphoma, to Include Dyshidrotic Mycosis Fungoides Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran’s claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The Veteran and representative argue that the Veteran is currently diagnosed with dyshidrotic mycosis fungoides, which is asserted to be related to service. At the outset, the Board notes that the Veteran has previously applied for, and been denied, service connection for a skin disorder. As the issue for service connection for a skin disorder has become final, the issue is not before the Board in the instant decision. The Veteran is, however, service connected for the fungal nail disability of onychomycosis. In August 2013, the Veteran submitted a statement in support of claim arguing that it was “possible” that growths under the nails and on the feet were symptoms of dyshidrotic mycosis fungoides. Supporting this argument, the Veteran submitted multiple medical articles printed from the internet. Among the articles, the Veteran included a September 2011 article entitled Dyshidrotic Eczema Differential Diagnoses. The Veteran specifically noted that vesicobullous mycosis fungoides should be considered in a differential diagnosis of dyshidrotic eczema. The Board has considered the submitted medical articles; however, for the reasons discussed below, the Board does not find the information contained in the articles to be relevant to the fact pattern in the instant matter. The Veteran’s representative submitted a brief in August 2013. Per the brief, the Veteran’s representative explained that they were specifically seeking service connection for dyshidrotic mycosis fungoides, and were not seeking an increased disability rating for the service connected onychomycosis, or requesting to reopen the previously denied service connection for a skin disorder. The representative argued that the Veteran was displaying typical symptoms of dyshidrotic mycosis fungoides, to include rash like patches, tumors, and/or lesions, and severe itching. Per the representative, as discussed in the submitted medical articles, certain phases of dyshidrotic mycosis fungoides can resemble eczema or even psoriasis, and diagnosis is generally accomplished through several skin biopsies. The representative requested that the Veteran be provided a proper dyshidrotic mycosis fungoides examination by VA. Review of the Veteran’s VA treatment records reflects that the Veteran has never been diagnosed with, or treated for, any form of lymphoma, to include dyshidrotic mycosis fungoides. The Veteran received a VA lymphoma examination in September 2013. Per the examination report, the VA examiner reviewed all the relevant evidence of record. Upon reviewing the relevant medical evidence and examining the Veteran, the VA examiner found that the Veteran did not have a currently diagnosed hematologic or lymphatic disorder. In discussing the rationale for finding that the Veteran did not have a current diagnosis of any form of lymphoma, to include dyshidrotic mycosis fungoides, the VA examiner noted that the Veteran received all treatment from VA, and was not receiving outside treatment from a dermatologist or oncologist. Review of the Veteran’s VA treatment records showed no history of a cutaneious lymphoma, although the Veteran had been assessed and treated for fungal skin and nail infections, as well as dyshidrotic eczema. The VA examiner noted that it appeared as if the Veteran’s attorney believed that the Veteran’s skin lesions were typical of a lymphoma and urged the Veteran to submit a claim so that he could obtain diagnostic testing; however, upon examination the Veteran did not have any lesions that could be construed as a cutaneous lymphoma that would be amenable to biopsy. The VA examiner explained that such a diagnostic intervention, one with inherent risks of infection and scarring, would be unethical to perform, as it was not expected to have any pertinent diagnostic or therapeutic yield. In sum, the VA examiner explained that the Veteran had no established mycosis fungoides, and no lesions consistent with dyshidrotic mycosis fungoides, both on physical examination and by history. Per a subsequent September 2015 brief, the Veteran’s representative argued that VA has failed to provide the Veteran with an adequate VA lymphoma examination because the Veteran continues to display symptoms consistent with dyshidrotic mycosis fungoides and has yet to receive the trio of skin biopsies necessary to diagnose the disorder. The Board disagrees. As discussed above, the Veteran received a VA lymphoma examination in September 2013. Despite the representative’s argument, the VA examiner did not decline to perform a biopsy simply because the Veteran did not display a potential lymphoma lesion at the time of examination. Rather, the VA examiner thoroughly reviewed the evidence of record and found that, not only did the Veteran not have a lesion at the time of examination, but that the Veteran did not have lesions consistent with dyshidrotic mycosis fungoides by history. Upon finding that the Veteran had no current and no historical lesions, the VA examiner declined to perform a biopsy as it would have been unethical to do so, as it could result in scarring and infection. VA examinations are not scheduled as a matter of course. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Rather, an examination is required where there is some indication that the claim may satisfy the three service connection elements noted above. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, the medical evidence weighs against a finding that the Veteran is currently diagnosed with dyshidrotic mycosis fungoides, such that a VA examiner has effectively opined that it would be malpractice for a VA examiner to perform the three biopsies in an attempt to confirm dyshidrotic mycosis fungoides. The Board will not remand for a new VA examination when all the evidence indicates that the Veteran does not have symptoms of any form of lymphoma, to include dyshidrotic mycosis fungoides. Id. Further, while the Veteran’s representative has argued that the Veteran displays lesions consistent with dyshidrotic mycosis fungoides, review of the Veteran’s VA treatment records shows that the Veteran has not sought treatment for and/or requested biopsy of such a lesion during the times in which they have purportedly manifested. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not a one way street). The Board has given consideration to the Veteran and representative’s contention that the Veteran has displayed symptoms consistent with dyshidrotic mycosis fungoides. While the Veteran is competent to offer lay statements regarding the presence of observable skin symptoms, here, as a lay person, under the facts of this case, neither the Veteran nor the representative has the requisite medical training or credentials to be able to render a competent medical opinion concerning whether the Veteran has a current diagnosis (or symptoms) of any form of lymphoma, to include dyshidrotic mycosis fungoides, and determining the etiology any skin symptoms would require the ability to differentiate such symptoms from already service-connected skin disability or the non-service-related skin disorder. Having reviewed all the evidence of record, lay and medical, the Board finds that the Veteran is not currently diagnosed with any form of lymphoma, to include dyshidrotic mycosis fungoides, and any symptoms resembling lymphoma are due to either the Veteran’s service connected onychomycosis or non service connected skin disabilities. A VA examiner in September 2013 specifically opined that the Veteran had no lesions consistent with dyshidrotic mycosis fungoides both upon examination and by history, and that the evidence was so against the Veteran’s symptoms being dyshidrotic mycosis fungoides (as opposed to the service connected onychomycosis or non service connected skin disabilities) that it would have been unethical/malpractice for the VA examiner to have attempted a skin biopsy at that time. While the Board has considered the Veteran and representative’s arguments that the Veteran’s symptoms are consistent with dyshidrotic mycosis fungoides, for the reasons discussed above, the Board finds these lay statements are far outweighed by the other evidence of record. Because the preponderance of the evidence is against service connection for lymphoma, to include dyshidrotic mycosis fungoides, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. CUE in August 24, 1992 Rating Decision Denying Service Connection for Status Post Left Thoracotomy for Granuloma Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of “error.” It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The United States Court of Appeals for Veterans Claims (Court) has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) “[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied,” (2) the error must be “undebatable” and of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made,” and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The Court has held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel, 6 Vet. App. at 246. If a veteran wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo, 6 Vet. App. at 43-44. If the error alleged is not the type of error that, if true, would be CUE on its face, if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a “manifestly different” result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Further, VA’s failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). At the outset, the Board notes that the August 24, 1992 rating decision became final, as the Veteran did not file a timely notice of disagreement (NOD) to the rating decision and no new and material evidence was received during the one year appeal period following that decision. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). Next, the Board finds the allegations of CUE made by the Veteran and representative are adequate to meet the threshold pleading requirements. See Simmons v. Principi, 17 Vet. App. 104 (2003); Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). Specifically, as argued in a September 2015 brief, and elsewhere throughout the record, the Veteran and representative advance that the RO erred in August 1992 when it only considered service connection for status post left thoracotomy for granuloma on a secondary basis. At the time of the August 24, 1992 rating decision, the evidence of record was as follows. Per a February 1983 service treatment record, under past history, it was noted that the Veteran had family members with tuberculosis, that the Veteran had been exposed to tuberculosis in the past, and that the Veteran previously used tuberculosis prophylaxis. Upon testing, the Veteran had a positive tuberculosis skin test. A chest X ray taken in February 1983 showed no active diseases; however, as a precaution the Veteran was prescribed Isoniazid to prevent a possible active tuberculosis infection. After a year of taking Isoniazid it was determined that further treatment was unnecessary, and there is no indication that the Veteran was diagnosed with active tuberculosis during this time period. An April 1986 report of medical history reflects that the Veteran reported never having been diagnosed with active tuberculosis. Per the report from an April 1986 medical board examination, at service separation the Veteran was diagnosed with severe bronchial asthma and high frequency hearing loss. While it was noted that the Veteran had been treated with Isoniazid after having a positive tuberculosis skin test during service, at the conclusion of the examination the diagnosis was not either active or inactive tuberculosis. An April 1992 treatment record reflects that the Veteran, who had a long history of heavy cigarette abuse, had been diagnosed with a granuloma of the lung. Subsequently, the Veteran underwent a left thoracotomy and wedge resection. Upon excision, it was discovered that the Veteran had a granuloma consistent with old tuberculosis. The Board notes that the Veteran was not diagnosed with active tuberculosis at that time, there was no indication as to when the Veteran had first manifested this old tuberculosis, and no opinion was rendered linking the tuberculosis granuloma to the in service treatment. In April 1992, the Veteran filed a claim for service connection for a lung mass condition. Per the claim, the Veteran specifically requested service connection as adjacent to the service connected bronchial asthma. In other words, the Veteran specifically requested secondary service connection for the lung mass. The Veteran received a VA examination in June 1992. At that time, X rays showed that the Veteran’s lungs were clear of any acute process. Per the examination report, the Veteran had smoked three packs per day for 25 years, which meant the Veteran began smoking heavily prior to service. Further, the VA examiner noted the Veteran’s Isoniazid treatment during service. At the conclusion of the examination, the VA examiner opined that the lung mass was not related to the Veteran’s service connected bronchial asthma; however, the VA examiner was unable to render a direct service connection opinion, admitting, “I do not know the exact pathological diagnosis of the lung mass.” In the August 1992 rating decision, the RO explicitly stated that service connection was being denied on a secondary basis because of the June 1992 VA examination opinion, and because secondary service connection is exactly what was requested by the Veteran; however, the record reflects that, while not explicitly stated, the RO did consider service connection on a direct basis. In the August 1992 notification letter informing that service connection had been denied on a secondary basis, the RO explicitly stated that, “this condition is shown to have been tuberculosis in nature. Medical evidence gives a long history of cigarette abuse.” In other words, the RO found that direct service connection was not warranted because it was more likely than not that the tuberculosis related granuloma of the lung was caused by the Veteran’s non service related smoking. The evidence at the time of the August 24, 1992 rating decision reflects that, while the Veteran had a positive tuberculosis skin test during service, the Veteran was never diagnosed with active tuberculosis during service, the Veteran was a heavy smoker, and there was no medical evidence of record specifically linking the tuberculosis related granuloma of the lung to service. In the August 1992 rating decision, in addition to denying service connection on a secondary basis, the RO effectively found that the tuberculosis related granuloma of the lung was caused by the Veteran’s non service related smoking, which was an implicit denial of service connection on a direct basis. As such, the Veteran’s argument that service connection should have been granted on a direct basis appears to be nothing more than a disagreement with how the facts were weighed and evaluated, which is explicitly not CUE. Damrel, 6 Vet. App. at 245; Fugo, 6 Vet. App. at 43 44. The Veteran was eventually granted service connection for status post left thoracotomy for granuloma in September 2008. In a June 2013 brief, the Veteran’s representative effectively argued that because a later VA examiner rendered a positive direct nexus opinion based upon the same evidence before the RO in August 1992, it was CUE that service connection was not granted at that time. As discussed above, the Veteran received a VA examination in June 1992, and at that time the VA examiner was unable to opine as to the pathology of the lung mass; therefore, the representative’s argument is effectively one that VA failed in its duty to assist. As discussed above, VA’s failure in the duty to assist cannot constitute CUE. Cook, 318 F.3d at 1346. Review of the record reflects no other significant CUE arguments raised by the Veteran and representative. As such, because the arguments presented by the Veteran and representative amount simple disagreement with how the facts were weighed and evaluated or an argument that VA failed in its duty to assist, none of which are CUE under the relevant law, the Board finds there was no CUE in the August 24, 1992 rating decision denying service connection for status post left thoracotomy for granuloma. Damrel, 6 Vet. App. at 245; Fugo, 6 Vet. App. at 43-44; Cook, 318 F.3d at 1346. REASONS FOR REMAND 1. SMC by Reason of Being Housebound 2. Whether CUE in a September 18, 2008 Rating Decision As discussed in a September 2015 brief, and elsewhere in the record, the Veteran’s argument as to why SMC by reason of being housebound is warranted is as follows. The Veteran and representative argue that the RO committed CUE in the September 18, 2008 rating decision that granted service connection for status post left thoracotomy for granuloma when it rated the newly service connected disability with the already service connected bronchial asthma. It is argued that, at the time of the September 18, 2008 rating decision, the Veteran’s 60 percent disability rating was protected; therefore, a separate disability rating should have been assigned for the newly service connected status post left thoracotomy for granuloma. Had the RO done so, the Veteran would have been entitled to SMC benefits by reason of having, in addition to a single, permanent service connected disability rated 100 percent disabling, additional service connected disability or disabilities independently evaluated as 60 percent or more disabling which are separate and distinct from the 100 percent service connected disability and involving different anatomical segments or bodily systems. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. The Board finds that this specific theory of RO CUE has not been directly addressed by the agency of original jurisdiction (AOJ). As such, the Board finds remand necessary for initial adjudication of this CUE rating question. Further, the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As the question of CUE in the September 18, 2008 rating decision directly effects the Veteran’s theory of entitlement to housebound SMC benefits, the issues must be remanded together. The aforementioned matters are REMANDED for the following action: (Continued on the next page)   Adjudicate the question of CUE in the disability rating assigned by the RO in the September 18, 2008 rating decision granting service connection for status post left thoracotomy for granuloma and then readjudicate the issue of SMC by reason of being housebound. If any benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel