Citation Nr: 1807312 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-14 819 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a heart condition, to include atrial fibrillation. 2. Entitlement to service connection for cellulitis of the right lower leg. 3. Entitlement to service connection for residuals of injury to the right big toe. 4. Entitlement to service connection for residuals of injury to the right foot. 5. Entitlement to service connection for itching skin. 6. Entitlement to service connection for basal cell carcinoma (previously claimed as residuals of a right ear cut). WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to December 1973, and from February 1975 to March 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision. In August 2015, the Veteran testified at a videoconference hearing before the undersigned. These issues were then remanded for further development in October 2015. The Veteran initially claimed only atrial fibrillation; however, the examination on remand also reflected diagnosis of cardiomyopathy. VA has a duty to consider any diagnosed condition that may be encompassed by a claim. The RO did consider the additional diagnosis of cardiomyopathy in the 2017 supplemental statement of the case, so there is no prejudice to the Veteran in the Board doing so as well. The issues of entitlement to service connection for cellulitis of the right lower leg, residuals of injury to the right big toe, residuals of injury to the right foot, itching skin, and basal cell carcinoma (previously claimed as residuals of a right ear cut) are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The most probative evidence of record does not show atrial fibrillation or cardiomyopathy to be etiologically related to a disease, injury, or event in service, to include in-service exposure to Agent Orange. CONCLUSION OF LAW Service connection is not warranted for a heart condition, to include atrial fibrillation. 38 U.S.C. §§ 1110 , 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The points below focus on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran has not raised any issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. In August 2015, the Veteran testified at a videoconference hearing before the undersigned. He has not alleged any deficiency with his hearing testimony as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. In order to establish service connection for a claimed disability, there must be (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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). If a Veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e) (2017). The Veteran is seeking entitlement to service connection for a heart condition as a result of in-service exposure to herbicides. The Veteran testified at the August 2015 hearing that he believes his atrial fibrillation is related to in-service exposure to Agent Orange. A review of the service treatment records reveals no complaints, diagnoses, or treatment for any heart symptoms or conditions. A review of his personnel records reflects that the Veteran served in the Republic of Vietnam from June 1968 to July 1969. As such, in-service exposure to herbicides or Agent Orange is conceded. Recent post-service medical records reflect that the Veteran has been diagnosed with atrial fibrillation and cardiomyopathy. In December 2015, the Veteran underwent a VA examination, at which he was diagnosed with cardiomyopathy and atrial fibrillation. The examiner noted that the Veteran's heart conditions do not qualify within the accepted medical definition of ischemic heart disease. This examiner determined that the Veteran's heart conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran was exposed to Agent Orange and, in 2008, was diagnosed with atrial fibrillation and has been on medication since then for the illness. The date of diagnosis for cardiomyopathy was listed as 2013. Neither atrial fibrillation nor cardiomyopathy is one of the diagnoses that is related to exposure to Agent Orange on a presumptive basis, and the examiner clearly indicated these conditions do not fall within the category of ischemic heart disease. The examiner noted no diagnosis of coronary artery disease. As the VA examiner reviewed the claims file, examined the Veteran, considered the Veteran's assertions, and provided a rationale for the opinion provided, the Board finds this opinion is the most probative medical evidence of record on this matter. The Veteran's lay statements have been considered in this decision. While he is competent to report his observable symptoms, he is without the appropriate training and expertise to offer an opinion on a medical matter, including the diagnosis or etiology of a cardiovascular disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, as the service treatment records are negative for cardiovascular complaints or treatment; the Veteran is not competent to render an opinion regarding the etiology of a cardiovascular disability; the December 2015 VA opinion did not link atrial fibrillation or cardiomyopathy to service; there is no probative medical evidence to the contrary; and the Veteran has not indicated that he has had continuous symptoms related to a heart condition since service, service connection cannot be granted for atrial fibrillation or cardiomyopathy on a direct basis. Shedden, 381 F.3d at 1166-67. With regard to granting service connection for presumptive diseases due to herbicide exposure under 38 C.F.R. § 3.307 (e), under the authority granted by the Agent Orange Act of 1991, the Secretary of VA specifically determines, based on reports of the National Academy of Sciences Institute of Medicine (NAS) and other medical and scientific studies, diseases that may be presumed to have been caused by exposure to herbicidal agents. Atrial fibrillation and cardiomyopathy are not among the list of diseases determined to be presumptively associated with in-service exposure to Agent Orange or herbicides. As such, service connection cannot be granted as presumptively associated with in-service exposure to herbicides or Agent Orange. Further, the December 2015 VA examiner specifically determined that atrial fibrillation and cardiomyopathy are not one of the diagnoses that is related to exposure to Agent Orange, and they are not ischemic heart disease. As there is no medical evidence to the contrary, the Board finds that service connection cannot be granted for this claim as related to Agent Orange exposure. The Veteran disagrees with the fact that VA recognizes certain heart conditions as related to herbicide exposure, but not others, but the Board is bound by these regulations. Service connection could be granted for other heart conditions if the medical evidence associates them with herbicide exposure, but there is no such positive opinion in this case. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a heart condition, to include atrial fibrillation, is denied. REMAND Additional development is needed prior to the adjudication of the remaining claims on appeal. As an initial matter, the Board notes that the most recent supplemental statement of the case (SSOC) listed the issue of entitlement to service connection for basal cell carcinoma (previously claimed as residuals of a right ear cut) as being an issue on appeal but did not discuss this issue in the SSOC. As such, this issue must be remanded in order to allow the AOJ the opportunity to provide a SSOC on this issue. With regard to the remaining issues on appeal, the October 2015 remand specifically requested that the Veteran be scheduled for a VA skin examination and that the examiner diagnose the Veteran will all skin conditions, to include basal cell carcinoma of the right ear, cellulitis of the right lower leg, a right big toe disability, a right foot disability, and an "itching skin" condition. It was further requested that the examiner provide an opinion as to whether it is at least as likely as not that any of these diagnosed conditions has their onset in service, or were otherwise caused by a disease or injury in service, to include in-service exposure to herbicides or Agent Orange. In December 2015, a VA examiner noted that the Veteran was diagnosed with basal cell skin cancer in 2013 and had surgical excision of the cancer with resolution. He has had at least 3 precancerous lesions on his facial cheeks that have been treated with cryotherapy with complete resolution. The examiner noted that skin cancer is one of the presumptive diagnoses made due to exposure to Agent Orange when the Veteran was stationed in Vietnam in service. The Veteran developed onychomycosis of the right great toe in service, and he developed cellulitis as a secondary infection after losing the toe nail. He continued to have a brittle great toe nail that falls off at time. The Veteran denied "itching sensation" of the lower extremity. The examiner found that the Veteran has a diagnosis of DERM skin that is at least as likely as not incurred in or caused by/ during service. The Board finds the December 2015 VA opinion is inadequate. It is unclear which of the identified disabilities the examiner was relating to service, and no rationale was provided for this opinion. Moreover, it appears that this opinion may be partially based on the examiner's statement that skin cancer is one of the presumptive diagnoses made due to exposure to Agent Orange, which is incorrect. Additionally, the examiner did not address the Veteran's assertions at his August 2015 hearing that he developed a fungal infection of the toe in service and that, later on, he had red rashes on his lower extremities near the ankle and lower leg. The Veteran also asserted that he had had problems with his right leg ever since his service in Vietnam and suggested that these problems were aggravated post service when a table that he was moving fell on his right leg and foot. As such, the Board finds that an addendum opinion should be obtained. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the VA examiner who provided the December 2015 VA opinion so that an addendum opinion may be obtained. If the same examiner is not available, an opinion should be provided by another VA examiner. The examiner should be asked to provide an opinion as to whether it is at least as likely as not that any diagnosed skin conditions, to include basal cell carcinoma of the right ear, cellulitis of the right lower leg, a right big toe disability, a right foot disability, and an "itching skin" condition had their onset in service, or were otherwise caused by a disease or injury in service OR by in-service exposure to herbicides or Agent Orange. The examiner should consider the pertinent assertions made by the Veteran at the August 2015 hearing. Moreover, the examiner is advised that the fact that a disease or disability is not listed under 38 C.F.R. § 3.309(e) as being presumptively associated with Agent Orange or herbicide exposure is not a rationale for determining that the Veteran's disability is not related to Agent Orange or herbicides on a direct basis. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinions provided. If additional examination is needed to render the above-requested opinion, such should be provided. 2. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he should be provided with a SSOC that addresses all relevant actions taken on the claims. The Veteran should be given an opportunity to respond prior to returning the case to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claims. See 38 C.F.R. § 3.655 (2017). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs