Citation Nr: 1817161 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 11-21 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a skin disorder, to include as due to herbicide agent exposure, as a substitute claimant and for purposes of accrued benefits. 2. Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Price, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from August 1965 to January 1969. The Veteran died in October 2011. The appellant is the deceased Veteran's spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2010 and August 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board remanded the appeal in April 2015 and requested the RO obtain a VA opinion to determine the etiology of the Veteran's atrial fibrillation and Grave's disease and obtain an addendum opinion as to the etiology of his skin condition. These opinions were provided in October 2017. The RO then returned the appeal to the Board. FINDINGS OF FACT 1. The Veteran's currently diagnosed skin disorders are not shown to be etiologically related to service. 2. The official death certificate demonstrates that the Veteran died on October [REDACTED], 2011, and lists the immediate causes of death as pneumonia and pulmonary fibrosis exacerbation. 3. At the time of his death, the Veteran was service connected for bilateral hearing loss and tinnitus; he had previously been denied for ischemic heart disease. 4. The Veteran's death did not result from any disorder incurred in or aggravated by service. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin disability are not met. 38 U.S.C. §§ 1110, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017). 2. The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1110, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Neither the appellant nor her 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). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Caluza v. Brown, 7 Vet. App 498, 506 (1995). Certain chronic diseases, including malignant tumors, may be service connected on a presumptive basis if manifested to a compensable degree within one year after discharge from service. 38 U.S.C. § 1112, 38 C.F.R. §§ 3.308, 3.309. A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period in the case of certain diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). However, even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511. When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the claimant's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Skin Disorder The Veteran contends that he has a skin disorder that began immediately following his tour in Vietnam. Specifically, he reported continuous treatment for dry skin and a rash affecting the arms and legs as well as his nails. Review of his service treatment records show he experienced lesions on and burning in his penis. However, his separation examination conducted in August 1968 showed his skin was normal and on his report of medical history, he indicated he had no skin diseases and denied any other medical issues. VA treatment records show the Veteran sought treatment in January 2008 for a rash that he experienced on and off for approximately a year. The examiner ruled out eczema; however, in April 2010, the Veteran was seen for dry skin and the physician provided a diagnosis of eczema. The Veteran was afforded a VA examination for skin diseases in May 2011 and he reported chloracne-type symptoms with lumps and blisters on his hands, legs and arms. He stated that the blisters would spread like a rash and were quite painful. As to the onset of the condition, the examiner noted a dermatology record dated 2008 that indicated the onset was one year prior. However, the Veteran stated that his condition was first diagnosed in 2007, but it had been present prior to that time. Ultimately, the examiner found that the Veteran's skin condition was not related to the penile lesions treated in service. The rationale noted that the Veteran had contact dermatitis with a bacterial infection while in the service and that infection was not present at the time of the exam. The examiner diagnosed hand eczema, tinea manuum, actinic keratosis, and stucco keratosis. The October 2017 VA examiner provided an opinion noting his current diagnoses, and opined that his hand eczema, tinea manuum, actinic keratosis and stucco keratosis were less likely as not due to his service, including as due to exposure to an herbicide agent. Although the examiner took into consideration the Veteran's statements regarding experiencing rashes since service, he found that the available medical evidence did not support those statements. "There is no evidence in the medical records that he had any skin condition until 12/11/07 when a rash all over his body is documented as since 3 or 4 months and 1/4/08 of a diffuse rash of 1 yr." Based on the foregoing, the Board finds that service connection for a skin condition is not warranted as there is not an adequate nexus of record. As an initial matter, the Veteran's diagnosed skin disorders are not conditions related to herbicide agent exposure under 38 C.F.R. §§ 3.307(a)(6) and 3.309(e) and therefore, are not entitled to service connection on a presumptive basis. As for direct service connection, the Veteran does have several, current diagnoses. However, in light of the report of medical history completed upon separation from service showing that the Veteran denied any history of skin problems, the Board finds that his more recent assertions that he has had skin manifestations since that time to be not credible. The report of medical history is a document completed and signed by the Veteran contemporaneous with his separation. As such, it is highly probative evidence with regard to whether he experienced skin problems during service or at separation. The October 2017 examiner found that his current skin disorders were not related to service and provided a rationale that, in part, is dependent upon a finding that the Veteran did not have skin problems ever since service, as he has asserted. As stated above, as the Board has found these statements not credible, the opinion that uses this as part of its reasoning is consistent with the record. Furthermore, his service treatment records only showed lesions or skin problems on his penis that was likely due to contact dermatitis per the May 2011examiner. Moreover, his separation exam and report of medical history were devoid of any skin manifestations or history. The earliest indication of a skin condition was found in a note dated January 2008, where he sought treatment for a rash that had been on and off for approximately one year. That report was made nearly 38 years after the Veteran separated from service and, as stated above, the Board finds that manifestations of a skin disorder since separation are not shown by the credible evidence of record. The Board finds that the preponderance of the evidence is against a finding of a nexus between the Veteran's current skin disorders and his service, to include his alleged herbicide agent exposure. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply; the appeal for must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Cause of Death To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312 (a). To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1). A contributory cause of death is defined as one inherently not related to the principal cause. 38 C.F.R. § 3.312 (c). For a service-connected disability to constitute a contributory cause, it must be shown that it "contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death." Id. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. The Board must also determine whether the Veteran had a disability incurred in or aggravated by service that was either the principal or the primary cause of death, or that it was a contributory cause of death. The Veteran's official death certificate shows that he died on October [REDACTED], 2011, and the immediate cause of death was listed as pneumonia, and exacerbation of pulmonary fibrosis as the underlying cause. Atrial fibrillation was listed as a significant condition contributing to death but not resulting in the underlying cause. The appellant contends that the Veteran should be presumptively entitled to service connection for ischemic heart disease and atrial fibrillation due to his exposure to herbicides while serving in Vietnam, because it contributed to his death. At the time of his death, the Veteran was service connected for bilateral hearing loss and tinnitus. Pertinent evidence of record includes the Veteran's service treatment records, a VA examination and several medical opinions, a private opinion and lay statements from the Appellant. The Veteran's service treatment records are silent for any findings of, treatment for, or diagnosis of any heart conditions, to include ischemic heart disease and atrial fibrillation. Moreover, the appellant has not asserted that the Veteran's conditions were initially manifested during service. Service connection on a direct basis is not being raised and the record makes clear that service connection on a direct basis is clearly not warranted. The Board acknowledges that the Veteran did serve in Vietnam, as is shown on his separation document. He is presumed to have been exposed to herbicides. 38 C.F.R. § 3.307 (a)(6)(iii). In various statements, the appellant claimed the Veteran had an ongoing diagnosis of ischemic heart disease that she believed contributed to his death. She also noted that the Veteran's Grave's disease was known to be caused by exposure to Agent Orange and Grave's disease was a cause of atrial fibrillation. Overall, she asserted that his atrial fibrillation was the underlying cause of his death and should be service-connected because it was caused by Grave's disease, which was due to the Veteran's exposure to herbicides in service. VA treatment records show the Veteran had a history of pulmonary fibrosis, atrial fibrillation and Grave's disease. Chest x-rays were conducted in May 2010 and findings were consistent with moderately severe diffuse interstitial fibrosis and cardiomegaly (enlarged heart); a possible diagnosis of hypertension was also indicated. Valvular heart disease was noted in June 2010 and he was referred to cardiology to determine if it was contributing to his reported shortness of breath. No further information regarding treatment or symptoms was provided. The Veteran underwent a VA heart examination in August 2010. The examiner noted a diagnosis of atrial fibrillation with an onset in 1977; it was considered stable, and he was treated with medication. On physical examination, there was no evidence of congestive heart failure, pulmonary hypertension or cardiac trauma. His heart was larger than normal and the rhythm was irregular. The Veteran underwent a stress test, which was a negative maximal treadmill stress test with limited exercise tolerance. Ultimately, the examiner diagnosed atrial fibrillation and noted that the Veteran experienced decreased mobility, lack of stamina, weakness/fatigue and pain. His wife had to assist him with tying his shoes but he was able to work in car business. A private physician completed a Disability Benefits Questionnaire for Ischemic Heart Disease in May 2011. The examiner diagnosed ischemic heart disease, atrial fibrillation, angina pectoris and pulmonary fibrosis. The Veteran was on several medications to treat his symptoms. It was noted that an angiogram was conducted six months prior and the Veteran had multiple echocardiograms; however, no results were provided. Private treatment notes also from May 2011 indicated the Veteran reported a VA diagnosis of ischemic heart disease. An addendum opinion was obtained in July 2012 to determine whether the Veteran had ischemic heart disease. The examiner did not find any credible evidence for a diagnosis of ischemic heart disease. The negative stress test and reference to normal coronary angiograms in June 2001 in the August 2010 VA exam were discussed. In contrast, the May 2011 notes from the above-mentioned private physician indicated the Veteran had a diagnosis of IHD for over 15 years; it was also noted he had an angiogram six months prior. However, the examiner did not find any evidence of an angiogram in the Veteran's private records during that period and noted the June 2001 normal angiogram would be evidence in opposition of a 15-year diagnosis. As noted above, an opinion was sought in December 2017 to determine if any of the Veteran's diagnoses were the underlying or contributory causes of his death and warranted service connection. The examiner opined that the Veteran's atrial fibrillation and Grave's disease were less likely as not due to his military service or herbicide exposure because there was no evidence that he had Grave's disease or atrial fibrillation while in the service and neither condition are presumptive under Agent Orange regulations. Furthermore, there was no evidence in the peer reviewed medical literature to support a contention that Agent Orange causes Grave's disease or atrial fibrillation. As for his ischemic heart disease claim, there examiner indicated that there were no medical records to support a diagnosis. Although there were notes documenting a cardiac cauterization in 2001 and 2010, both were negative for ischemia. The examiner also noted the August 2010 treadmill test was negative for evidence of ischemia. As for the Veteran's cardiomegaly, pulmonary or any other pulmonary/cardiac disabilities, the examiner found that they were less likely as not due to his service or exposure to Agent Orange. There was no evidence in the service or post-service medical records to support a service related etiology for any of these conditions. The examiner indicated his pulmonary fibrosis was idiopathic, and likely aggravated by tobacco smoking. Cardiomegaly and pulmonary fibrosis are not Agent Orange presumptive conditions. Furthermore, there was no evidence in the peer reviewed medical literature linking these conditions to Agent Orange exposure. The Board considers the December 2017 VA opinion to be highly probative. As it is well supported by medical literature, based on accurate facts, and contains a thorough and well-reasoned rationale for all opinions expressed, the Board finds that the opinions are entitled to significant probative weight. Nieves-Rodriguez, 22 Vet. App. at 302-05. The May 2011 private opinion lacks probative value because the information provided was limited and contradicted by other evidence included in the file. The private physician noted an ongoing diagnosis of ischemic heart disease for over 15 years; however, diagnostic testing conducted in 2001and 2010 was negative. Therefore, the private opinion is not considered probative evidence in support of the appellant's claim. Nieves-Rodriguez, 22 Vet. App. at 302-05. The Board finds that service connection for cause of death due to ischemic heart disease, atrial fibrillation, or any other condition mentioned in the medical evidence is not warranted. In order for a condition to qualify as a service-connected cause of death, it must be shown that the condition contributed substantially or materially to cause death. Here, the most recent medical determination of death is principally pneumonia and pulmonary fibrosis, and the Veteran's atrial fibrillation contributed to his death. The medical evidence of record, however, does not establish a nexus relationship between the Veteran's atrial fibrillation, pneumonia, ischemic heart disease, or any other listed condition and active service, to include Agent Orange exposure with the Veteran's service. There is also no evidence to suggest that the causes of the veteran's death began in military service, or were caused by some event or experience in service. In addition, there is no evidence of cardiovascular disease manifesting to a compensable degree within one year of military discharge causing or contributing to the Veteran's death. The weight of the evidence does not demonstrate a link between his death and military service. Therefore, service connection for the cause of the Veteran's death is denied since the evidence fails to show it was related to military service. In assessing the evidence, the Board acknowledges the appellant is competent to provide evidence regarding the symptoms she observed the Veteran exhibited prior to his passing. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that while a layperson is not competent to opine as to medical etiology or render medical opinions, they are competent to establish the presence of observable symptomatology). However, as the appellant's lay statements relate to the etiology of the Veteran's death due to pneumonia, pulmonary fibrosis or other associated causes, the Board is unable to accord the appellant's lay statement probative weight because she is not competent to render a medical diagnosis or opinion on such a complex medical question. See Jones v. West, 12 Vet. App. 460, 465 (1999) (holding that only those with specialized medical knowledge, training, or experience are competent to render a medical diagnosis); see also Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). As to whether service connection may be warranted on a direct or presumptive basis or based on continuity of symptomatology for the ischemic heart disease, atrial fibrillation, pneumonia or any of the previously identified contributing causes, the Board finds that it is not. It has not been argued, and the medical evidence does not show, that any of these conditions manifested to any degree or were diagnosed during the Veteran's active duty service. Further, it is uncontroverted that the noted primary and contributory causes of death were not present until many years after service. Indeed, the medical evidence shows the Veteran's atrial fibrillation and grave's disease problems did not manifest until several years after he separated from service, and there is no evidence the Veteran had ischemic heart disease that would have contributed to his death. As there is no evidence of in-service injury or manifestation within the first post service year, service connection for these disabilities is not warranted in this case. 38 C.F.R. §§ 3.303, 3.307, 3.309(a). As the weight of the competent and probative evidence does not demonstrate a nexus between the Veteran's cause of death and service, the Board finds that service connection for the Veteran's cause of death is not warranted. Because the preponderance of the evidence is against the claim for service connection for the Veteran's cause of death, the claim must be denied and the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a skin condition is denied. Service connection for the Veteran's cause of death is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs