Citation Nr: 20021450 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-10 820 DATE: March 25, 2020 ORDER The appeal for service connection for an autoimmune disease is dismissed. Service connection for asbestosis (claimed as a skin rash) is denied. Service connection for coronary artery disease (CAD) is denied. FINDINGS OF FACT 1. During the December 2019 Board hearing, the Veteran made an explicit, unambiguous request to withdraw his claim for service connection for an autoimmune disease. 2. The Veteran’s chronic dermatitis did not have onset during active service, and is not otherwise related to an in-service injury, event, or disease. 3. The Veteran’s CAD did not have onset during active service, was not caused by active service and did not manifest within one year of separation from his service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for an autoimmune disease by the Veteran have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.205 (2018). 2. The criteria for service connection for asbestosis (claimed as a skin rash) have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for service connection for CAD have not been met. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. § § 3.102, 3.303, 3.307, 3.309(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1964 to July 1966 with additional Reserve service. Withdrawal 1. Entitlement to service connection for an autoimmune disease The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. Id. Withdrawal is only effective if it is explicit, unambiguous, and done with the Veteran’s full understanding of the consequences. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204 (c). At the December 2019 Board hearing, the Veteran indicated that he would like to withdraw his appeal for service connection for an autoimmune disease. He indicated that he understood the consequence of his withdrawal. The Veteran’s representative was at the hearing. As such, the Veteran and his representative have clearly expressed unambiguous intent to withdraw the appeal for this issue. The Board therefore finds that the Veteran’s statement meets the criteria for withdrawal of the appeal for service connection for an autoimmune disease. Because the Veteran has withdrawn this appeal, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, the Board does not have jurisdiction to review this issue and the claim for service connection for an autoimmune disease is dismissed. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). “Active service” includes active duty, a period of active duty training (ACDUTRA) in which the individual was disabled from a disease or injury incurred or aggravated in the line of duty, and a period of inactive duty training (INACDUTRA) in which the individual was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C. §§ 101 (24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303, 3.304. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 2. Entitlement to service connection for asbestosis (claimed as a skin rash) The Veteran claims to have a skin rash as a result of asbestos exposure during service. As an initial matter, the Board notes that there are no statutes specifically dealing with asbestos and service connection for asbestos related diseases and the Secretary of VA has not promulgated any specific regulations. There is no presumption that a Veteran was exposed to asbestos in-service and no disabilities for which service connection can be presumed if exposure is shown. Thus, the standard service connection regulations apply. The Board concludes that, while the Veteran has a current disability of chronic dermatitis, the preponderance of the evidence is against finding that chronic dermatitis began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Notably, the Veteran does not have a current asbestosis disability. Per his hearing testimony, he is seeking benefits for a skin rash disability due to asbestos exposure. Service treatment records document treatment for a rash attributed to an allergic reaction to penicillin. May 1965 dermatology notes document a history of a rash since April 1963 that was originally thought to be eczema but failed to respond to hydrocortisone ointment treatment. In May 1965 the Veteran had an onset of another rash covering his entire body, primarily his legs and arms, an impression of folliculitis was provided. At a follow-up visit the same month, the dermatitis clinic determined that his symptoms were an allergic reaction to penicillin prescribed two to three weeks prior. On July 1966 release to inactive duty, clinical evaluation of the skin was normal. Service treatment and medical personnel records do not mention asbestos exposure. His DD Form 214 indicates that his military occupational specialty (MOS) was carpenter maintenance. At the December 2019 Board hearing, the Veteran testified that he was exposed to asbestos while serving aboard a ship and working as a carpenter. He reported performing general maintenance and repair of locker and phone stations. He stated that he broke out in a rash twice while aboard the ship and attributed the rash to asbestos exposure. In support of his claim, the Veteran submitted additional statements claiming that in 1964 he worked on pipes and in a boiler room causing asbestos exposure resulting in a skin rash. As discussed above, service treatment records explicitly attribute his in-service rashes to an allergic reaction to penicillin. The Veteran also submitted private medical letters. In a December 2019 letter, a primary care physician indicated that the Veteran has a diagnosis of chronic dermatitis of his bilateral legs, since 2002. The physician noted the Veteran’s allegation that his skin condition began in August 1964 and is related to asbestos exposure. A nexus opinion was not provided. In a January 2020 letter, a private physician confirmed that medical records from the 1960’s attribute a rash to a possible penicillin reaction, however, the Veteran has denied having a known penicillin reaction and reports being prescribed, and tolerating, amoxicillin medication in October 2009. A nexus opinion was not provided. The Board has considered whether a VA examination is required in connection with the Veteran’s claim of service connection a skin rash due to asbestos exposure. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). The Board finds the duty to obtain a new medical examination for this claim has not triggered in this case as the record fails to show competent evidence establishing that an event, injury, or disease related to asbestos occurred in service or manifested during any applicable presumption period. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the evidence demonstrates that in-service the Veteran had skin rashes as the result of an allergic reaction to penicillin. On separation, clinical evaluations were normal and there was no mention of a skin rash disability. Further, private medical records indicate that the Veteran was provided a diagnosis of chronic dermatitis in 2002, approximately 35 years after separation from active duty service. Evidence of a prolonged period without seeking treatment for a condition has the tendency to weigh against the claim. Likewise, there is no evidence corroborating the Veteran’s original claim of in-service asbestos exposure. Thus, there is no evidence establishing the requisite injury, disease, or event during service to which the current condition can be linked. As such, no examination is necessary. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. 79 (2006). For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for a skin rash. Thus, his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for CAD The Veteran contends that his current CAD is due to a pneumonia hospitalization during service. The Veteran has a current diagnosis of CAD as evidenced by VA treatment records. Ischemic heart disease, including CAD, is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran himself reports an onset of heart symptoms post-service in 1985 when he had a heart attack. He does not allege any heart symptoms during service. VA treatment records document a history of a January 1985 heart attack, approximately 20 years after separation from active duty service and well outside of the applicable presumptive period. Service connection for CAD may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s coronary artery disease and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Here, the Veteran alleges that his CAD is due to pneumonia treatment during service. At the December 2019 Board hearing, the Veteran testified that his CAD had an onset in 1985 after a heart attack. He recounted an in-service December 1964 hospitalization to treat pneumonia and stated that on July 1966 separation he did not have any pneumonia residuals. However, the Veteran claims that a private physician told him that his in-service pneumonia could have weakened his heart causing his current condition. The undersigned held the record open for 60 days for the submission of private medical records, including medical opinion. The Veteran stated that all of his medical records are associated with the claims file and that he would contact the private physician to obtain any outstanding records. After the hearing, the Veteran submitted evidence discussing stent implant location and medication. He also submitted internet printouts on the relationship between congestive heart failure and pneumonia. He did not submit any medical opinion on his heart condition. Service treatment records contain no complaints of or treatment for CAD or related symptoms. December 1964 service treatment records contain an audiological examination, but no mention of a hospitalization to treat pneumonia. The Veteran testified that he was treated for pneumonia aboard ship in December 1964. December 1964 service treatment records document complaints of a sore throat and inability to swallow and that he had a history of tonsillitis. His tonsils were found to be large. There is no mention of pneumonia. On July 1966 release to inactive duty, clinical evaluation of the heart and lungs were normal. Notably, the Veteran himself testified that he did not have any heart symptoms during service. The Board finds the service treatment records to be more probative than the Veteran’s testimony regarding what he was treated for during service as medical professionals contemporaneously documented his treatment. Post-service the first mention of heart symptoms is when the Veteran had a heart attack in January 1985, approximately 20 years after separation of active duty service. Although the presence of symptoms is not the same thing as seeking treatment for symptoms, this long period of time without evidence of seeking treatment has a tendency to weigh against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). VA medical records document a history of a stent procedure in January 2005. The Board finds that the evidence does not establish an in-service injury, disease, or relevant event with regard to the claimed CAD. Service treatment records are silent for any mention of a pneumonia, or any heart complaints or related symptoms. Therefore, VA has no duty to provide an examination. Accordingly, and based on this evidentiary posture, the Board concludes that a nexus to service is not demonstrated. As such, service connection is not warranted. The only evidence of record suggesting a link or nexus between the Veteran’s current CAD and service comes from the Veteran himself. While the Veteran believes his CAD is related to an active service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of symptoms and a diagnosis provided many years after separation from active duty service. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As stated above, service treatment records are silent for pneumonia or any complaints of or symptoms related to a heart condition. The Veteran himself testified that he did not have any heart symptoms on separation. Consequently, the Board gives more probative weight to the competent medical evidence of record. Accordingly, the preponderance of the evidence is against granting service connection for CAD, on any theory of entitlement raised by the Veteran or the record. Thus, there is no reasonable doubt to be resolved and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.