Citation Nr: 1819210 Decision Date: 03/28/18 Archive Date: 04/05/18 DOCKET NO. 13-02 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to or aggravated by a service-connected psychiatric disorder and/or toxic herbicide exposure. 2. Entitlement to service connection for a skin disability REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran had active service from July 1967 to July 1970. This appeal came before the Board of Veterans' Appeals (Board) from August 2008 and October 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In September 2013, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board, and the transcripts are of record. In January 2018, the Veteran was provided with the opportunity for a new hearing and was notified that he had 30 days to elect a new hearing. As more than 30 days has passed without a response from the Veteran, the Board finds that he waived his right to a new hearing. 38 C.F.R. § 20.700 (2017). In August 2014, the Board adjudicated the Veteran's increased ratings claims and remanded the remaining issues for development. In August 2016, the Board denied the Veteran's service connection claim for sleep apnea and reopened his service connection claim for a skin disorder. The remaining issues on appeal were remanded for further development. After additional development, this appeal is now ready for adjudication. 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). FINDINGS OF FACT 1. The Veteran's hypertension was not related to active service, to include as secondary to or aggravated by a service-connected psychiatric disorder and/or toxic herbicide exposure. 2. The Veteran's skin disorder was not related to active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension, to include as secondary to or aggravated by a service-connected psychiatric disorder and/or toxic herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). 2. The criteria for entitlement to service connection for a skin disorder have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Veteran asserts that his hypertension and skin disorder were related to active service. He specifically asserts that his hypertension is caused by or aggravated by exposure to toxic herbicides and/or his service-connected psychiatric disorder. Generally, to establish a right to compensation for a present disability, a Veteran must show (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Certain chronic diseases, such as hypertension, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. For qualifying disorders, this presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Service connection is warranted for a veteran who has been exposed to toxic herbicide agents during active military service (subject to the requirements of 38 C.F.R. § 3.307 (a)) for diseases such as chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, multiple myeloma, respiratory cancers (cancer of the lungs, bronchus, larynx, or trachea), soft-tissue sarcomas, ischemic heart disease, Parkinson's disease, B-cell leukemias and prostate cancer. Moreover, service connection is warranted even if these disorders were not shown during active duty. 38 C.F.R. § 3.309(e). Here, while the evidence indicates that the Veteran served in Vietnam, the evidence does not indicate, and the Veteran does not assert, that he has a condition listed under 38 C.F.R. § 3.309(e). As a result, presumptive service connection due to herbicide exposure is not for application. In this case, based on the evidence of record the Board determines that service connection is not warranted for hypertension and a skin disorder. The Veteran's service treatment records do not reflect complaints of, treatment for or diagnosis of hypertension or a skin condition during active service. Specifically, there were no indications of hypertension or a skin disorder in the Veteran's June 1970 release from active duty report. Moreover, the post-service evidence does not reflect symptoms of these disorders until many years after separation. Specifically, the medical evidence reflects that the Veteran had periods of high blood pressure in 2005, and was clinically diagnosed with hypertension in 2007. Moreover, while the medical records includes the Veteran's statements that his skin disorder has been present since service, the first manifestations of a skin disorder in the objective medical records was not documented until he was diagnosed with dermatitis in May 2005. As such, a continuity of symptoms is not shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. §§ 3.309. As part of this claim, the Board recognizes the statements from the Veteran and his friend regarding his history of symptoms. Specifically, that he had a skin disorder and hypertension since active duty service. In this regard, while the Veteran and his friend are not competent to diagnose disorders such as hypertension and a skin disorder, as they may not be diagnosed by their unique and readily identifiable features, and thus requires a determination that is "medical in nature," they are nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Nevertheless, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not probative in establishing continuity of symptomology. As an initial matter, the large gap in treatment for the asserted conditions weighs against the Veteran's claims. Further, the Veteran's treatment records contradict the Veteran's assertions that his symptoms have persisted since service. Specifically, the May 2005 VA treatment records reflect that the Veteran did not have hypertension at the time or a past diagnosis of hypertension. Further, in a May 2009 VA treatment evaluation, there was no indication of a skin disorder, including a rash. Lastly, the Board notes that the Veteran previously filed claims for VA benefits, including in 1970, prior to filing the claims on appeal. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out claims for other benefits, but made no reference to the disorder he now claims, weighs heavily against his credibility. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, despite his contentions to the contrary, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorders to active duty. Specifically, while the Veteran may have had occasional high blood pressure as early as 2005, the Veteran was not diagnosed with hypertension until 2007 - almost 40 years after service. In a July 2012 VA examination, the examiner opined that the Veteran's hypertension was not caused and/or aggravated by his service-connected psychiatric disorder. In support, she noted that the medical literature does not support a causal link between the two disorders. Moreover, she noted that there was no clinical indication that the Veteran's hypertension worsened since the Veteran has been diagnosed with a psychiatric disorder. In December 2016, the VA examiner opined that the Veteran's hypertension was not caused by his exposure to toxic herbicides. She indicated that the "there is no compelling scientific studies demonstrating a causal relationship," and that the VA studies which indicate a possible relationship are "based upon a less stringent standard of sufficient evidence of a statistical relationship," and more importantly, did not actually reveal a higher incidence of hypertension in exposed Veterans. Instead, the VA examiner determined that the Veteran's hypertension was more likely caused by his age, excessive alcohol use, cocaine use, and sleep apnea. With respect to the Veteran's skin disorder, in a May 2005 VA treatment evaluation, the medical provided noted that the Veteran had dermatitis which he indicated was due to his hepatitis-C. In a June 2012 VA examination, the examiner performed a detailed review of the Veteran's service and medical treatment records, as well as a comprehensive physical examination of the Veteran. She opined that the Veteran did not have any complaints or symptoms of a skin disorder during service. Moreover, there was no evidence of a skin disorder until many years later. As such, she opined that his skin disorder was not related to service. In January 2015, the VA examiner noted that the Veteran had numerous different skin conditions in the 50 years since he left service. However, he opined that his current skin condition, diagnosed as tinea corporis/blanca, is not related to service or the skin complaints that the Veteran had reported since service. Similarly, the June 2017 examiner did not find a relationship between the Veteran's current skin disorder and active service. The examiner determined that the Veteran's current skin condition, diagnosed as eczema and onychomycosis, did not manifest until over 50 years after active service. Further, in support, the examiner cited to the numerous skin conditions reported in the Veteran's treatment records, including his skin biopsy, to demonstrate that the evidence is not sufficient to demonstrate a nexus between his current skin disorders and service. Additionally, the Board notes that the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a nexus between his hypertension and skin disorder to active service. While the Board observes that the Veteran submitted unrelated Board decisions to support his claims, prior unrelated Board decisions are non-precedential, or binding, on the Board. See 38 C.F.R. § 20.1303. Rather, the Board reviews the particular facts of each case in light of applicable procedure and substantive law. As part of this claim, the Board recognizes the statements from the Veteran and his friend regarding the Veteran's history of skin symptoms and hypertension, as well as the relationship between his disorders and active service. The Federal Circuit has held that "[l]ay 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, although the Veteran and his friend are competent to report certain symptoms, they are not competent to provide testimony regarding a diagnosis and/or etiology of hypertension or a skin disorder. See Jandreau, 492 F.3d at 1377, n.4. Because they are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran's disorders are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for hypertension or a skin disorder, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. VA Duty to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. 38 U.S.C. §§ 5103, 5103A. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided notice letters informing him of both his and VA's obligations. Moreover, there is no indication of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Therefore, additional notice is not required and any defect in notice is not prejudicial. With respect to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). The Board finds that all necessary assistance has been provided to the Veteran. Indeed, all VA treatment records and relevant private treatment records have been obtained. The Veteran has also been provided with VA examinations and addendum opinions have been obtained per the Board's August 2014 and August 2016 Remand instructions. Finally, as discussed, this appeal was remanded by the Board in April 2012 and February 2015 to obtain VA examinations and related addendum opinions, as well as any outstanding records. Here, the Veteran was provided with VA examinations and addendum opinions in July 2015, December 2016, June 2017, and December 2017, which discuss and address the nature and etiology of the Veteran's hypertension (to include its relationship to the Veteran's psychiatric disorder and toxic herbicide exposure) and his skin disorder. The Board finds that the reports and opinions are adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, all outstanding records were obtained. Therefore, the Board finds that all necessary assistance has been provided to the Veteran and the Board is now satisfied there was substantial compliance with the Remands. See Stegall v. West, 11 Vet. App. 268 (1998). Overall, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for hypertension, to include as secondary to or aggravated by a service-connected psychiatric disorder and/or toxic herbicide exposure, is denied. Service connection for a skin disorder is denied. ______________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs