Citation Nr: 1815971	
Decision Date: 03/14/18    Archive Date: 03/23/18

DOCKET NO.  14-16 158	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Waco, Texas


THE ISSUE

Entitlement to service connection for a skin disability, claimed as Sweet's disease, to include as due to herbicide exposure.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and his wife


ATTORNEY FOR THE BOARD

Christopher Gannon, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant, had active duty service from December 1967 to December 1969. 

This appeal to the Board of Veterans' Appeals (Board) arose from a June 2011 rating decision in which the RO denied the Veteran's claim for service connection for Sweet's disease. In July 2011, the Veteran filed a notice of disagreement (NOD). A statement of case (SOC) was issued in March 2014 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals), also in March 2014. 

In November 2015, the Veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. 

In February 2016, the Board remanded the claim on appeal for further development. After further action was accomplished, the claim was again denied, and subsequently returned to the Board for further appellate consideration.

While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System and Virtual VA (Legacy Content Manager) claims processing systems.  All records have been reviewed.



FINDINGS OF FACT

1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished.

2.  As the Veteran served in Vietnam during the Vietnam era, his  in-service exposure to herbicide agents, to include Agent Orange, is presumed.

3.  Although the Veteran has asserted experiencing skins problems, claimed as Sweet's disease, as a result of his service, to include herbicide exposure therein, competent, probative medical evidence does not establish that the Veteran has, or at any point pertinent to the claim on appeal has had, a chronic skin disability, to include claimed Sweet's disease, for which service connection may be granted.


CONCLUSION OF LAW

The criteria for service connection for a skin disability, claimed as Sweet's disease, to include as due to herbicide exposure, are not met. 38 U.S.C. §§ 1110, 1116, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017).

After a complete or substantially complete application for benefits is received, notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g. Pelegrini v. Principi, 18 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)).  

VA's notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. 

In this appeal, the RO sent the Veteran a June 2010 pre-rating letter that provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA consistent with Pelegrini. The June 2011 rating decision reflects the initial adjudication of the claim after issuance of the this letter. Also, during the November 2015 Board hearing, both the Veteran and his representative exhibited actual knowledge of what was needed to substantiate the Veteran's claim, to include certain pertinent private medical records. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007).

Also, consistent with applicable duty to assist provisions of the VCAA, the record reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant evidence pertinent to the matter herein decided.  Pertinent medical evidence associated with the claims file consists of service treatment and personnel records, VA treatment records, private treatment records, and reports of VA examinations, to include for his claimed skin disorder. At the time of the February 2016 Board remand, VA treatment records were associated with the Veteran's claims file. Since then, in accordance with the prior remand's instructions, the AOJ obtained and associated with the claims file additional VA treatment records from the VA Medical Center (VAMC) in Albuquerque, New Mexico related to treatment from May 2012 to October 2013;  and from the VAMC Big Spring, Texas related to treatment from May 2012 to March 2016.  Also of record and considered in connection with the claim is the transcript of the Board hearing, along with various written statements by the Veteran and his representative on his behalf.  No further action on this claim, prior to appellate consideration, is required.

As for the Board hearing, the Veteran had the opportunity to orally set forth his contentions before the undersigned VLJ.  During the hearing, the undersigned identified the issue on appeal. Also, information was elicited from the Veteran as to the nature and onset of, and treatment for, the claimed condition.  Questions were also directed toward determining whether further evidentiary development was warranted - namely, whether the Veteran had a current diagnosis of the claimed condition, and whether there was evidence of a nexus between the claimed disability and his service.  Although the undersigned did not explicitly suggest the submission of any specific, additional evidence, on these facts, such omission was harmless.  Following the hearing, the claim was remanded for additional development, as a result of which additional evidence was ultimately added to the claims file.  Notably, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), to include identification of any prejudice in the conduct of the hearing.  The hearing was legally sufficient.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).

The Board also finds that the AOJ has complied with the prior Board remand instructions to the extent possible, and that no further action in this regard is warranted.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with).  In response to the February 2016 Board remand, the AOJ obtained more recent VA treatment records covering the dates and locations of treatment noted above and issued a supplemental SOC (SSOC) in March 2016 in consideration thereof, followed by another period for response. After the issuance of the remand, later in February 2016, the AOJ also sent a letter to the Veteran, asking him to furnish, or furnish appropriate authorization to enable VA to obtain, all private treatment records that could help substantiate his claim, including the records from "Dr. N. in Odessa" identified by the Veteran during the Board hearing.  However, no evidence or authorization to enable VA to obtain any such evidence was received.  Rather, in March 2016, the Veteran, through his representatives, stated that they did not have any additional evidence to submit regarding his appeal, and requested expedited processing.  

In summary, with respect to this claim, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim.  As such, the Veteran is not prejudiced by the Board proceeding to a decision on the claim herein decided, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II. Analysis

Service connection may be granted for disability resulting from chronic disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the chronic disease was incurred in service. 38 C.F.R. § 3.303(d).

Such a determination 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 Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its competency, credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam Era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e).  

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, 53-56 (1990).

The Veteran generally contends that he suffers from a skin disability, claimed as Sweet's disease, to include as due to herbicide exposure.  As he served in Vietnam during the Vietnam era, his exposure to herbicides is presuming.  That fact notwithstanding, considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for a skin disability must, nonetheless, be denied.

The Veteran's service records are silent for any skin complaints, finding, or diagnosis, and clinical evaluations revealed normal skin. His December 1967 induction examination was negative for any skin conditions; the examiner described the Veteran's skin as normal, and the Veteran reported that he did not have any skin diseases. The Veteran's November 1969 separation examination report and history were similarly negative for any skin conditions.

Post-service VA treatment records reference treatment for skin conditions. In September 2006, the Veteran was treated for an abdominal rash, and during treatment he reported a history of Sweet's disease. In February 2008, the Veteran reported for a scheduled lab consultation and reported small burns from a cutting torch, which he said impacted Sweet's disease by causing abscesses. In November 2008, the Veteran reported that he had a history of Sweet's disease after having skin tags removed under his arms. 

In January 2009, following a rheumatology consult, a VA examiner described the Veteran as having a history of Still's Disease, a skin disorder that would cause overreactions following any injury to his skin. During this exam, the Veteran reported to the examiner that "about 10 years ago, with rash, [the Veteran] had a biopsy which revealed 'Sweet's Syndrome.' [The Veteran] reports the biopsy was done in Odessa and sent to California for evaluation." The examiner opined that he could have Sweet's disease, although if it was, it was currently asymptomatic. The examiner stated: "Patient with possible diagnosis of Sweet's Syndrome, although without typical presentation, and we do not have the biopsy results for this diagnosis." The examiner went on to state his reasoning for why he could not conclusively diagnose Sweet's disease: "Patient does not fit major/minor criteria of Sweet's Syndrome which include abrupt onset of typical cutaneous lesions, histopathology consistent with Sweet's syndrome, as well as 4 minor criteria. Patient could have another dermatological condition, not mentioned, and as patient is asymptomatic currently, we are unable to obtain biopsy or visualization of skin lesions." 

The Veteran underwent a VA examination in May 2011 for the purpose of obtaining medical information regarding the nature and etiology of any current skin disability(ies), to include whether any such disability(ies) was/were due to exposure to Agent Orange.  The examination report reflects the examiner's conclusion that,  although the Veteran's VA treatment records referenced a history of Sweet's disease, he (the examiner) could neither diagnose a current skin disorder nor find that the Veteran had been diagnosed with Sweet's disease in the past because he could not find a tissue diagnosis or a report from a specialist. The examiner stated that he could not resolve this issue without resort to mere speculation. As a rationale, the examiner reasoned that if the Veteran did have Sweet's disease, then it was "most probable to be due to AO." The examiner then reasoned that Sweet's disease has been associated with myeloid leukemia, myelodysplasia, chronic myelogenous leukemia, non-Hodgkin lymphoma and Hodgkin's disease, and certain types of cancers; however, the Veteran did not have a diagnosis of any of those listed diseases, nor could the examiner positively diagnose the Veteran with the claimed skin condition.

The Board points out that the VA examiner's conclusion that he could not reach an opinion as to diagnosis without resort to mere speculation, cannot be construed herein as an actual medical opinion weighing either for or against the claim. See Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009). 

In cases involving a VA examiner's finding that an opinion cannot be rendered without resorting to speculation, VA is not required to proceed through multiple iterations of repetitive medical examinations until it has obtained a conclusive opinion or formally declares that further examinations would be futile. Jones v. Shinseki, 23 Vet. App. 382, 387 (2010). It must be clear, however, from some combination of the examiner's opinion and the Board's analysis of the record, that the examiner has not invoked the phrase "without resort to mere speculation" as a substitute for full consideration of all pertinent and available medical facts. Id. 

The United States Court of Appeals for Veterans Claims (Court) has prescribed that such a standard requires that the examiner's assessment be made after all due diligence has been exercised in seeking relevant medical information that may have bearing on the requested opinion. Id. at 389. Although a bald statement by the examiner that it would be speculative to render an opinion as to etiology or diagnosis is fraught with ambiguity, the Board may rely on an examiner's conclusion that an opinion would be speculative if such an opinion is supported by an explanation of the basis for such an opinion or is otherwise apparent in the Board's review of the evidence. Id. at 390. VA must also ensure that it is clear, from either the examiner's statements or the Board decision, that the examiner has considered "all procurable and assembled data" by obtaining all tests and records that might reasonably illuminate the medical analysis. Id. (quoting Daves v. Nicholson, 21 Vet. App. 246 (2007)). Thus, the examiner's use of the phrase "without resort to mere speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. Finally, the examiner should clearly identify precisely which facts cannot be determined.

In this case, in May 2011, the VA examiner offered an explanation of how he reached the conclusion that he could not render an opinion without resort to mere speculation. It is clear that his conclusion was not based on a lack of expertise or the need for additional testing. As discussed above, the examiner explained that there were no procureable means available to ascertain whether the Veteran had a confirmed diagnosis of Sweet's disease, since he "can find no diagnostic data of the diagnosis for this disease" and the Veteran was asymptomatic. The examiner's rationale was that a diagnosis could not be confirmed without a tissue diagnosis, which he could not obtain.

Given the explanation provided by the VA examiner, and the fact that the examiner clearly considered all relevant evidence and facts, the Board accepts the May 2011 VA examiner's statement that an opinion as to current disability could not be provided without resort to speculation.

Here, there simply is no competent, probative evidence reflecting that the Veteran has, or at any point pertinent to the current claim has had, a diagnosed, chronic skin disability, to include Sweet's disease. 

As noted above, an award of service connection requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The fundamental requirement of the existence of a current disability is satisfied when a veteran has the claimed disability shortly before, or at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 

Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). A symptom such as pain, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). 

As noted, the May 2011 VA examiner could not confirm a diagnosis of a chronic, current skin disorder, to include Sweet's disease, and there is otherwise no competent, credible evidence of a chronic skin disability at any point pertinent to the June 2010 claim.  The Board has reviewed VA treatment records and observes that such records do not contain competent, probative evidence establishing that the Veteran was ever positively diagnosed with a chronic skin disorder, or any of the disabilities listed by the VA examiner to be associated with Sweet's disease.  In fact, VA treatment records dated in January 2009 reflect the clinician's opinion that the Veteran's reported symptoms did not comport with the claimed disability. VA treatment records dated in February 2009 show that a VA examiner opined that the Veteran's claim of Sweet's disease was "questionable." Further ,VA treatment records dated in August 2009 also indicate an examiner's  opined that the claimed Sweet's disease was "atypical" in presentation. An August 2010 VA treatment record notes that the Veteran had been "followed for Sweet's syndrome" but according to an examiner, he was "completely asymptomatic." The record does not otherwise include competent, probative evidence establishing a current diagnosis of Sweet's disease or any other chronic skin disorder.   

The Board notes that, in his hearing testimony, the Veteran indicated that he had been diagnosed with the claimed disorder following a biopsy by a private physician, Dr. N. in Odessa, Texas.  Notably, the Veteran's assertions of what a doctor told him do not, in and of themselves, constitute competent evidence of diagnosis of the claimed disability.   See, e.g., Robinette v. Brown, 8 Vet. App. 69, 77 (1995).   However, given his report, in the February 2016 remand, the Board requested that the Veteran furnish records from Dr. N. regarding the treatment. Following the remand, a letter was sent to the Veteran in February 2016. The letter specifically asked him to furnish, or furnish appropriate authorization to enable VA to obtain, private treatment records that could help substantiate his claim, including the records from Dr. N. identified by the Veteran during the Board hearing.  As noted, neither the Veteran nor his representative responded with records or appropriate authorization to enable VA to obtain records from Dr. N. or any other provider.  

Furthermore, to whatever extent the Veteran attempts to establish any diagnosis and etiology of his claimed skin disorder on the basis of his own lay assertions, alone, such attempt must fail. Matters of diagnosis and etiology of the complex disability here issue are based on internal processes not observable to the human eye, or otherwise perceived through the senses; hence, questions of diagnosis and etiology of such a disability are only within the province of individuals with special knowledge, training, and experience. See Kahana v. Shinseki, 24 Vet. App. 428, 433, 438 (2011); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As the Veteran is simply not shown to have such special knowledge, training, and experience, his assertions in this regard are not competent, and hence, not probative. 

In sum, notwithstanding the Veteran's presumed in-service-exposure to herbicide agents, to include Agent Orange, the Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability.  See 38 U.S.C.A. § 1110  . Thus, where, as here, competent, probative evidence does not establish that, fundamentally, the Veteran has the disability for which service connection is sought, there can be no valid claim for service connection for such disability-on any basis.  See Brammer,  3 Vet App. at 225.

For all the foregoing reasons, the claim on appeal must be denied.  In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent and  probative evidence supports the fundamental current disability requirement for establishing service connection, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.



ORDER

Service connection for a skin disability, claimed as Sweet's disease, to include as due to herbicide exposure, is denied.




____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs