Citation Nr: 1815604 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-38 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a heart disability. 2. Entitlement to service connection for a skin disability. 3. Entitlement to service connection for diabetes mellitus. 4. Entitlement to an initial disability rating in excess of 10 percent for radiculopathy, left lower extremity, sciatic nerve. REPRESENTATION The Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Galante, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty in the United States Coast Guard from April 1949 to August 1952. These matters come to the Board of Veterans' Appeals (Board) on appeal from April 2013 and March 2017 rating decisions issued by the United States Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Relevant evidence has been received since the April 2017 Supplemental Statement of the Case. In correspondence received in February 2018, the Veteran's representative waived initial RO review of this evidence. 38 C.F.R. § 20.1304(c) (2017). Accordingly, the Board may proceed with appellate consideration. The issue of entitlement to an initial disability rating in excess of 10 percent for radiculopathy, left lower extremity, sciatic nerve 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's heart disability did not manifest in service, and is not shown to be causally and etiologically related to his military service, to include lead-based paint and zinc chromate exposure. There is also no competent evidence suggesting it is due to or aggravated by a service-connected disability. 2. The Veteran's skin disability did not manifest in service, and is not shown to be causally and etiologically related to his military service, to include lead-based paint and zinc chromate exposure. There is also no competent evidence suggesting it is due to or aggravated by a service-connected disability. 3. The Veteran's diabetes mellitus did not manifest in service, and is not shown to be causally and etiologically related to his military service, to include lead-based paint and zinc chromate exposure. There is also no competent evidence suggesting it is due to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to direct or secondary service connection for a heart disability have not been met. 38 U.S.C. §§ 1110, 1131; 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for entitlement to direct or secondary service connection for a skin disability have not been met. 38 U.S.C. §§ 1110, 1131; 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 3. The criteria for entitlement to direct or secondary service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1131; 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran 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) (2012); 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, 1380-1381 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. Neither the Veteran nor his representative has raised any issues with the duty to notify or 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. Generally, service connection requires competent evidence showing (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In July 2012, the Veteran submitted a statement indicating that one of his duties on active service involved replacing asbestos on pipes aboard his military vessel. Accordingly, the RO proceeded in developing and adjudicating the Veteran's service connection claims with the understanding that the Veteran was alleging his claimed disabilities were possibly due to in-service asbestos exposure. In his October 2014 Substantive Appeal, the Veteran clarified that his claims "should have never been considered as due to exposure to asbestos" and reiterated his subjective belief that his disabilities were instead the result of in-service exposure to lead-based paint and zinc chromate. As the Veteran has narrowed his claims on appeal, the Board declines to proceed with further analysis regarding any relationship between in-service asbestos exposure and his claimed disabilities. There is no competent evidence in the file that suggests such a theory is plausible. The evidence is clear that the Veteran has experienced a current heart disability, a skin disability, and diabetes mellitus within the appeals period. VA treatment records consistently show that the Veteran's diabetes mellitus is under constant monitoring and control with the prescription drug Metformin. Regarding his skin disability, the Veteran has been treated on numerous occasions for actinic and seborrheic keratosis/skin lesions. In April 2014, the Veteran had a skin lesion on his left lateral eyebrow that was biopsied. Results indicated "borderline skin cancer or perhaps a 'precancerous growth.'" In September 2017, a skin lesion was biopsied from the conchal bowl of the left ear due to malignancy. Thus, while the Veteran initially filed his service connection claim solely for skin cancer, the Board has broadened the claim to fully encompass all of the Veteran's skin diagnoses. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran also experiences a current heart disability-variably diagnosed as congestive heart failure, cardiomyopathy, and coronary artery disease-resulting in a 2005 implantation of a pacemaker. As the evidence has established the presence of current disabilities, the Veteran has satisfied the first element of service-connection under Shedden for all claims on appeal. Regarding the in-service incurrence of disease/disability, the Veteran's service treatment records are completely negative for the presence of complaints/symptoms, diagnoses of, or treatment for a heart disability, a skin disability, or diabetes mellitus. The Veteran's July 1952 discharge examination is negative for heart, endocrine, or skin disabilities. In an April 2017 appellant's brief, the Veteran's representative conceded that "[h]is service treatment records are negative for treatment of any of his claimed conditions" and that these conditions did not manifest until years after the Veteran's separation from active duty. The Veteran does not actually contend that he experienced relevant symptoms or received any relevant treatment during service for the claimed conditions. While serving in the United States Coast Guard, one of the Veteran's jobs was to repaint military vessels. The Veteran explained that he was required to chip away old lead-based paint, or burn the lead-based paint free from the metal walls before re-painting, without the use of a protective mask. See July 2012 statement. Thus, his primary contention is that the current disabilities on appeal are caused by lead-based paint and zinc chromate he was exposed to in the performance of his official duties while on active service. As it stands, the record includes no medical evidence or opinion suggesting the existence of a medical relationship between the Veteran's claimed disabilities and his military service, to include exposure to lead-based paints or zinc chromate; and the Veteran has not presented, identified, or even alluded to the existence of any such evidence or opinion. Although the Veteran sincerely believes his current disabilities are the result of in-service lead-based paint and zinc chromate exposure, there is no indication, aside from the Veteran's mere conclusory generalized lay statements, that this is so. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). As a layperson, the Veteran is certainly competent to report matters within his own personal knowledge, such as the occurrence of an injury or the presence of symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Moreover, laypersons may, in some circumstances, opine on questions of diagnosis and etiology, such as with respect to simple disabilities capable of being observed. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, a lay person without appropriate medical training and expertise simply is not competent to opine on more complex medical questions. See e.g., Jandreau, 492 F.3d at 1377 (holding that a layperson cannot diagnose cancer). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters, 601 F.3d at 1278. The question of whether the Veteran's skin disability, heart disability, and diabetes mellitus are etiologically related to his military service, to include lead-based paint and zinc chromate exposure, is beyond the realm of a layperson's competence as such involves a complex medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or expertise. As such, lay assertions in this regard have no probative value. Consequently, the record is without any competent evidence linking the Veteran's current disabilities to his military service, and the third Shedden element has not been satisfied. Therefore, the Veteran's claims for service connection must be denied on a direct basis. While all of the Veteran's claimed disabilities are arguably chronic diseases under 38 C.F.R. § 3.309(a) subject to presumptive service connection consideration, neither the Veteran nor his representative has raised such a contention. Furthermore, the issue is not raised by the evidence of record, as none of the Veteran's claimed disabilities were manifested during service, within one year of separation of service, or through continuity of symptomology since separation of service. The Veteran also seems to suggest that perhaps one or all of these conditions are secondary to his service-connected myelitis. See May 2013 statement. However, there is no competent evidence in the file that suggests such a theory is plausible, and the Veteran has identified none. In adjudicating these claims, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's service connection claims. As such, that doctrine is not applicable in the instant appeal, and the Veteran's claims must be denied. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for a heart disability is denied. Entitlement to service connection for a skin disability is denied. Entitlement to service connection for diabetes mellitus is denied. (CONTINUED ON NEXT PAGE) REMAND In April 2017, the Veteran submitted a timely notice of disagreement with a March 2017 rating decision that denied an initial increased rating for radiculopathy, left lower extremity, sciatic nerve. A review of the record shows that the Veteran has not been furnished a Statement of the Case in response to his notice of disagreement. Because the notice of disagreement placed this issue in appellate status, the matter must be remanded for the originating agency to issue a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238, 240-241(1999). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) The AOJ should furnish the Veteran with a Statement of the Case, including all pertinent laws and regulations, for the issue of entitlement to an initial disability rating in excess of 10 percent for radiculopathy, left lower extremity, sciatic nerve. The Veteran must be notified of his rights and responsibilities in perfecting a timely appeal as to this claim. 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). This claim 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