Citation Nr: 1808304	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  13-29 756	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to service connection for a disability manifested by chronic physical flushing and changes in body temperature, to include as due to exposure to herbicide agents. 


REPRESENTATION

Veteran represented by:	John S. Berry, Attorney at Law


ATTORNEY FOR THE BOARD

M. M. Celli, Counsel



INTRODUCTION

The Veteran served on active duty from September 1966 to September 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In February 2017, the Board remanded the issue listed on the title page as well as the issue of entitlement to service connection for migraines for additional development.  In a May 2017 rating decision, the RO granted service connection for migraines.  As such decision constitutes a complete grant of the benefits sought on appeal with regard to such matter, this issue is no longer before the Board.  The issue listed on the title page now returns for further appellate review.


FINDING OF FACT

The Veteran does not have a current disability manifested by chronic physical flushing and changes in body temperature for which service connection may be granted.


CONCLUSION OF LAW

The criteria for service connection for disability manifested by chronic physical flushing and changes in body temperature have not been met.  38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.103, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Preliminary Matters

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Furthermore, neither the Veteran nor his representative has alleged any deficiency with respect to VA's duties to notify or assist in connection with the claim.  See Scott, supra (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 duty to assist argument).

II. Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease 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).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

Additionally, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service.  38 C.F.R. § 3.307(a)(6)(i).  Veterans who, during active military, naval, or air service, served in the Republic of Vietnam (Vietnam) during the period beginning on January 9, 1962, and ending on May 7, 1975, or in or near the Korean DMZ between April 1, 1968, and August 31, 1971, are presumed to have been exposed to herbicide agents.  See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6).  In the instant case, the record confirms that the Veteran served in Vietnam during the requisite time period and, therefore, he is presumed to have been exposure to herbicide agents coincident with such service.

For those veterans who have been exposed to herbicide agents, certain diseases are acknowledged to be presumptively related to such exposure. 38 U.S.C. 
§ 1116(a)(2); 38 C.F.R. § 3.309(e).  The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with exceptions not applicable in the instant case. 38 C.F.R. § 3.307(a)(6)(ii).  Notwithstanding the foregoing presumption, a veteran is not precluded from establishing service connection with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

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. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran asserts that he has a current disability manifested by chronic physical flushing and changes in body temperature as a result of his military service, to specifically include his acknowledged exposure to herbicide agents coincident with his service in Vietnam.  

In this case, the Board finds it determinative that the medical evidence does not demonstrate a clear diagnosis of a disability, manifested by the reported symptoms, during the pendency of the appeal or a recent diagnosis of such a disability prior to the Veteran filing a claim for disability benefits.  38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  In this regard, the evidence must show that a veteran has the disability for which benefits are being claimed.  See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement of a current disability is met if the disability was present at any point during the claim period).  In the absence of proof of a present disability, there can be no valid claim.  Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).  

First, neither VA treatment records nor private treatment records demonstrate a clear diagnosis of a disability manifested by the Veteran's symptoms during the pendency of the appeal.  An April 2013 VA treatment record shows an assessment of hot flushing, and the VA physician determined the etiology was unclear and differentials included hyperthyroidism versus carcinoid syndrome.  A July 2013 VA  treatment record shows an assessment of whole body pain/hot flushes, TSH was within normal limits, and the etiology was unclear.  The physician noted the Veteran had experienced these symptoms for at least 30 years and that there was a possible neuropathic component for which he was on medication.  Likewise, a February 2014 VA treatment record shows a finding of "possible neuropathic component versus autonomic dysfunction."  Although the above treatment records reflect hypotheses of a potential etiology for the Veteran's symptoms, the Board finds this medical evidence does not demonstrate a definitive diagnosis for a disability during the pendency of the appeal.  

Second, a VA examination in February 2017 failed to reveal a clear diagnosis of a disability manifested by chronic physical flushing and changes in body temperature.  In fact, after a review of the Veteran's medical history and the current clinical findings, the VA examiner opined that there were no objective findings to support a diagnosis of the claimed condition.  On examination, the Veteran reported hot flashes and red skin that was very hot to the touch.  He denied fevers and chills, and stated that the condition fluctuated and could last from a few hours to days.  However, physical examination was normal, as were the results of an April 2015 MRI of the brain and a January 2012 EEG of the brain.  The Board affords the VA examiner's findings significant probative value.  As noted above, the VA examiner reviewed the Veteran's medical history, cited specific records therein, and considered the Veteran's statements.  Further, despite the Veteran's allegations to the contrary, the VA examiner performed a physical examination with appropriate testing, and the examination report details results supporting the opinion.  

The Board is cognizant of the holding of the United States Court of Appeals for Veterans Claims (Court) in Romanowsky, 26 Vet. App. 289.  In Romanowsky, the Court held that when the record contains a recent diagnosis of disability 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.  In this case, the Veteran filed his initial service connection claim in March 2012.  An April 2005 private treatment record reflects an assessment of hot flashes, etiology uncertain.  A September 2011 private treatment record shows the Veteran reported flushing of the hands, arms, and feet; however, the private physician also found the etiology of such symptoms was unclear.  Again, the evidence does not show a clear diagnosis of a disability based on the Veteran's symptoms prior to March 2012.  As a result, the Board finds the evidence does not demonstrate a diagnosis of a disability manifested by chronic physical flushing and changes in body temperature for service connection purposes at any time prior to or during the pendency of the appeal. 

The Board acknowledges the Veteran's assertions that he suffers from chronic physical flushing and changes in body temperature and recognizes that he is competent to provide evidence about the symptoms he experiences.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses).  The Board further notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  However, the Veteran's symptoms do not constitute a diagnosable condition in and of themselves, and the records do not reflect a contemporaneous or later diagnosis by a medical professional.  Hence, while the Veteran is competent to report the symptoms he experiences, he is not competent to provide the requisite diagnosis as he has not been shown to have the medical training necessary to do so.  In this case, the Veteran reported his symptoms to his treatment providers and the February 2017 VA examiner; however, neither his treatment providers nor the VA examiner provided a clear diagnosis of a current disability for which service connection may be granted.  In addition, the clinical evidence, which includes consideration of the Veteran's lay statements, does not support a competent diagnosis of a disability at any time prior to or during the pendency of the appeal.  The Board concludes, therefore, that the medical findings are of greater probative value than the Veteran's allegations regarding the existence of a disability manifested by chronic physical flushing and changes in body temperature.  

Without evidence of a diagnosis of a current disability for which service connection may be granted, the preponderance of the evidence is against the Veteran's claim.  Consequently, service connection for such alleged disorder is not warranted.  In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal, and his claim must be denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.


ORDER

Service connection for a disability manifested by chronic physical flushing and changes in body temperature is denied.



____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs