Citation Nr: 1817558	
Decision Date: 03/22/18    Archive Date: 04/03/18

DOCKET NO.  14-23 116	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to service connection for scarring, right lung (also claimed as pulmonary disorder), to include as due to toxic chemicals and/or Agent Orange exposure.

2. Entitlement to service connection for a left foot disorder.

3. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for Peyronie's disease as a result of VA medical treatment in 2013.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant
ATTORNEY FOR THE BOARD

Matthew Miller, Associate Counsel


INTRODUCTION

The Veteran had active duty service from April 1969 to January 1973 and from August 1974 to August 1976.

This matter comes before the Board of Veterans' Appeals (Board) on an appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In June 2017, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record.
 
This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records. 

The issue of entitlement to compensation pursuant to 38 U.S.C. § 1151 for Peyronie's disease as a result of VA medical treatment in 2013 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. There is no evidence that the Veteran served in the Republic of Vietnam or was exposed to herbicides, to include Agent Orange.

2. The preponderance of the evidence of record does not show that the Veteran's scarring, right lung (also claimed as pulmonary disorder) is related to service, to include as due to toxic chemicals and/or Agent Orange exposure. 

3. The preponderance of the evidence of record does not show that the Veteran's left foot disorder is related to related to service. 


CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for scarring, right lung (also claimed as pulmonary disorder), to include as due to toxic chemicals and/or Agent Orange exposure have not been met. 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).

2. The criteria for entitlement to service connection for a left foot disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012) sets forth VA's duties to notify and assist a claimant with the evidentiary development of a claim for compensation or other benefits. See also 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2017). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. The Veteran has been provided satisfactory and timely VCAA notice in advance of the rating decision on appeal.

VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal.

The Veteran's statements in support of the claim are of record, including testimony provided at the hearing before the undersigned Veterans Law Judge. The Board hearing focused on the elements necessary to substantiate his claim and the Veteran has demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. Thus, the material issues on appeal were fully developed in accordance with 38 C.F.R. § 3.103(c) (2017). There has been no indication to the contrary.

Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Legal Principles

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

As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999).

VA regulations provide that a Veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2017). Certain diseases are deemed associated with herbicide exposure under current VA law. 38 C.F.R. § 3.309(e). 

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. 38 U.S.C. § 5107. VA shall consider all information and lay and medical evidence of record in a case. If a preponderance of the evidence supports a claim, or if a claim is in relative equipoise, the claimant shall prevail. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). If a preponderance of the evidence is against a claim, it will be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant. Gilbert, 1 Vet. App. at 53-54.

Scarring, right lung (also claimed as pulmonary disorder)

The Veteran seeks entitlement to service connection for, scarring of the right lung (also claimed as pulmonary disorder). In essence, he claims to have experienced breathing problems soon after his discharge from service and suffered from at least one incident of lung collapse. He also claims to have been exposed to toxic chemicals and/or Agent Orange in service.


Initially, the Board observes that the Veteran's service treatment records are silent as to any breathing problems. 

The Board further observes that the Veteran has complained of shortness of breath, but has not received much, or any, medical treatment for his condition. 

The VA has since determined that there is no evidence that the Veteran served in the Republic of Vietnam or was exposed to Agent Orange. See November 2012 VA Memorandum. As such, the discussion herein will not pertain to presumptive service connection related to herbicide exposure. See 38 C.F.R. § 3.307, 3.309. 

The Veteran received a VA respiratory examination in February 2013. The examiner diagnosed the Veteran with scarring, right lung. The Veteran reported that while in service he reportedly was exposed to toxic material and/or fumes and after his discharge, he reportedly suffered from several lung collapses. X-ray testing included an impression of scarring at the right lung base. The examiner determined that the Veteran's pulmonary disorder is less likely than not incurred in or caused by service. The examiner stated "There is no significant pulmonary condition found, other than scarring right lung base. Both lungs are clear of pulmonary infiltration or nodules." 

After weighing the evidence, the Board concludes that the more probative evidence is against the Veteran's claim. 

In light of the above, the Board determines that a preponderance of the evidence shows that the Veteran's pulmonary disorder was not incurred in or aggravated by service. Here, the Board finds the reasoning of the February 2013 VA examiner highly probative as she indicated a detailed review of the evidence, provided fully supported rationale consistent with the evidence, and considered the Veteran's claims regarding his condition and onset. Further, the VA examiner noted that the diagnosis of scarring, right lung is not a condition known to be associated with exposure to toxic chemicals such as asbestos. Moreover, there has been no medical opinion to the contrary.  Other pulmonary disorder or disability has not been shown.

In sum, the most probative evidence of record is against showing that the Veteran's pulmonary disorder is related to service. In making this decision the Board notes that the Veteran is competent to report breathing problems and the circumstances surrounding such. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of the Veteran's pulmonary disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). 

For the above reasons, the Veteran's claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107.

Left foot disorder

The Veteran seeks entitlement to service connection for a left foot disorder. In pertinent part, he claims that he first injured his left foot in service after a fall.

Initially, the Board notes that the Veteran's service treatment records document an October 1975 report of "acute onset of swelling, left side of left foot."  No other complaints or findings are recorded.

The Board further notes that the Veteran has complained of foot pain and/or popping, but has not received much, or any, medical treatment for his condition. 

The Veteran received a VA foot examination in February 2013. The Veteran reported that he fell and injured his left foot in 1975 while attempting to secure a helicopter. The examiner noted that the Veteran also sustained a post-service left calcaneal fracture after falling from a trash truck. The examiner diagnosed the Veteran with a remote left calcaneal fracture. The examiner acknowledged the October 1975 service treatment record which showed "acute onset swelling left side of left foot." The Veteran complained of additional foot pain and mild swelling. X-ray testing included an impression of "extensive sclerosis in superior calcaneus ... most compatible with old compression fracture." The examiner determined that the Veteran's left foot disorder is less likely than not incurred in or caused by service. The examiner stated that "there is no evidence of chronicity in service. Veteran sustained left calcaneal fracture years after discharge." 

After weighing the evidence, the Board concludes that the more probative evidence is against the Veteran's claim. 

In light of the above, the Board determines that a preponderance of the evidence shows that the Veteran's left foot disorder was not incurred in or aggravated by service. Here, the Board finds the reasoning of the February 2013 VA examiner highly probative as she indicated a detailed review of the evidence, provided fully supported rationale consistent with the evidence, and considered the Veteran's claims regarding his condition and onset. Further, the VA examiner noted that the Veteran's left foot disorder is more likely associated with a fracture that occurred many years after service. Once more, there has been no medical opinion to the contrary. 

In sum, the most probative evidence of record is against showing that the Veteran's left foot disorder is related to service. Again, the Board has considered the Veteran's lay statements and he is competent to describe foot pain and/or popping, but he is not competent to provide an etiological opinion as to a complex foot disorder such as a calcaneal fracture.

For the above reasons, the Veteran's claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107.



ORDER

Entitlement to service connection for scarring, right lung (also claimed as pulmonary disorder), to include as due to toxic chemicals and/or Agent Orange exposure is denied.

Entitlement to service connection for a left foot disorder is denied.


REMAND

Review of the record reveals that a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's 38 U.S.C. § 1151 claim. Specifically, remand is required to retrieve any outstanding medical treatment records, as well as to provide a VA examination.

The Board notes that the provisions of 38 U.S.C. § 1151 (2012) provide for compensation for qualifying additional disability in the same manner as if the additional disability were service-connected. A qualifying additional disability is one in which the disability was not the result of the Veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran; and, the proximate cause of the disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or was the result of an event not reasonably foreseeable. 38 U.S.C. § 1151 (2012).

Here, the Veteran's VA medical records show that he was treated for problems with his prostate, and that he was having difficulty voiding. These records also suggest that the Veteran received a catheter in or around May 2013. Further medical records indicate that he has been diagnosed with Peyronie's disease, but it is unclear when this disability onset. Curiously, an October 2013 treatment report from a VA urologist indicates that the Veteran "is voiding without issue. He empties his bladder ... He had Peyronie's disease [sic] is not from Foley catheter." It appears that the RO interpreted this statement as a VA opinion and subsequently denied his claim.  

In June 2017, the Veteran testified that his Peyronie's disease onset after his VA administered catheter fell out, which resulted in further pain and deformity to his penis. He also stated that he is currently receiving VA treatment for his claimed condition. 

In light of the above, the Board finds the October 2013treatment report to be inadequate for rating purposes. Given this, and the fact that it does not appear that the Veteran has ever received a proper VA examination in regard to his 38 U.S.C. § 1151 claim for Peyronie's disease, the Board finds that VA's duty to assist has been triggered and it must provide a VA examination for this disability. See McClendon v. Nicholson, 20 Vet. App. 79 (2006).

The Board observes that the Veteran has received some prior VA treatment for his claimed disorders, but no additional treatment records have been added since approximately late 2013. Therefore, VA should obtain all relevant and outstanding treatment records. Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

1. With the assistance of the Veteran as necessary, identify and obtain any outstanding, relevant treatment records, and associate them with the Veteran's electronic claims file. If the AOJ cannot locate or obtain such records, it must specifically document the attempts that were made to locate or obtain them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. All attempts to obtain records should be documented in the Veteran's Virtual VA and VBMS claims file.

2. The AOJ should then arrange for a VA examination pursuant to 38 U.S.C. § 1151 for Peyronie's disease, conducted by an appropriate specialist. The examiner is to be provided access to Virtual VA and VBMS and must specify in the report that these records have been reviewed. All pertinent symptomatology and findings should be reported in detail, including all diagnoses. Any indicated diagnostic tests and studies should also be accomplished. 

After review of the evidence of record and with consideration of all statements, the examiner must provide opinions as to the following:

(a) Is it at least as likely as not (50 percent or greater probability) that the Veteran sustained a permanent additional disability - Peyronie's disease - as a result of the placement of a catheter by the VA Medical Center in Temple, Texas in or around May 2013? 

(b) If so, then is it at least as likely as not (50 percent or greater probability) that such additional disability was a result of treatment that was not reasonably foreseeable?

(c) If so, then is it at least as likely as not (50 percent or greater probability) that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instances of fault in placing the catheter and/or leaving it in place for too long? Please include consideration and discussion of whether there was informed consent.

(d) Is it at least as likely as not (50 percent or greater probability) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider in performing the above procedure without the Veteran's informed consent?

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

3. After the development requested has been completed, the AOJ should review any examination report and opinion to ensure that it is in complete compliance with the directives of this REMAND. If a report is deficient in any manner, the AOJ must implement corrective procedures at once.

4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case and allowed to respond thereto.

The appellant 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 of Veterans' Appeals or by the United States Court 

of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).


______________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs