Citation Nr: 1736592	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  07-15 618	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1. Entitlement to service connection for a pulmonary disorder other than sleep apnea.

2. Entitlement to service connection for a dermatological disorder.

3. Entitlement to service connection for a venereal disease, or residuals thereof.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States




ATTORNEY FOR THE BOARD

Z. Sahraie, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1969 to July 1973, to include service in the Republic of Vietnam.  In August 2013, during the course of this appeal, the Veteran died.  His surviving spouse has been substituted as the claimant on appeal.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

The matter was previously before the Board in May 2012 and May 2014.  It was remanded for further development on both occasions, and is now returned to the Board for appellate review.  


FINDINGS OF FACT

1. The evidence does not show that the Veteran had a diagnosis of a pulmonary disability other than sleep apnea during the appeal period.

2. The most probative evidence of record demonstrates that the Veteran's dermatological disorders, diagnosed as seborrheic keratosis and xerosis, were not etiologically related to any aspect of his service.

3. The most probative evidence of record demonstrates that the Veteran neither had active manifestations of a venereal disease, nor experienced residuals of venereal diseases contracted in service, during the appeal period.


CONCLUSIONS OF LAW

1. The criteria for service connection for a pulmonary disorder other than sleep apnea have not been met.  38 U.S.C.A. §§ 1101, 1111, 1110, 1153, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307 (2016).

2. The criteria for service connection for a dermatological disorder have not been met.  38 U.S.C.A. §§ 1101, 1111, 1110, 1153, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307 (2016).

3. The criteria for service connection for a venereal disease, or residuals thereof, have not been met.  38 U.S.C.A. §§ 1101, 1111, 1110, 1153, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to notify and assist

When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The appellant has been provided notice letters throughout the appeal that address all notice elements required.  There has been no allegation of notice error in this case.  See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009).  

The Board has also satisfied its duty to assist.  38 U.S.C.A. § 5103A; 38 C.F.R. 3.159.  VA has obtained all identified and available treatment records for the Veteran.  Unfortunately, the Veteran passed away during the appeal period.  However, the record contains VA medical opinions addressing each claim currently on appeal.  The Board finds these opinions adequate, because they are based on thorough reviews of the claims file, and are fully reasoned.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  In light of the foregoing, the Board finds that VA has provided the appellant with every opportunity to submit evidence and arguments in support of the appeal.  The appellant has not identified any outstanding evidence that needs to be obtained.  

In light of the foregoing, the Board concludes VA has satisfied its duties to notify and assist.

Entitlement to service connection for a pulmonary disorder

Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. §§ 1101, 1110; 38 C.F.R. § 3.303.  

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.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  

The Federal Circuit has held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309 (2016).  Walker v. Shinseki, 708 F.3d 1331, 1338 (2013).  Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016).  

The Board notes that the Veteran did not have any diagnoses of a primary pulmonary disorder at any point during the appeal period.  Diagnostic imaging of the Veteran's chest, conducted in June 1999, nearly three decades after separation, was characterized as normal excepting evidence of a remote clavicular fracture.  Further, the Veteran's complaints of shortness of breath have been consistently attributed to his already service-connected heart disease.  For instance, a VA examiner with whom the Veteran met in September 2009 in connection with the instant claim noted dyspnea on only mild exertion, but attributed the symptom to the Veteran's active heart disease, diagnosed as atrial fibrillation, coronary artery disease, congestive heart failure, and hypertension.  

The record does reveal a single episode of an upper respiratory tract infection in January 2011, but this episode was not attributed to any aspect of the Veteran's service, nor to any service-connected disability, and contemporaneous treatment notes show it resolved in approximately one week with antibiotics.

An April 2017 disability questionnaire, completed by a pulmonologist who reviewed the medical file, confirms the Veteran did not have any diagnosed respiratory condition during the appeal period, and that his reported dyspnea was a manifestation of his already service-connected heart disease.  

In sum, the record demonstrates that the Veteran did not have a diagnosis of a pulmonary disorder during the appeal period.  Therefore, the first element of service connection, the presence of a current disability, has not been satisfied, and the claim fails on this basis.

Because the evidence preponderates against the instant claim, the benefit of the doubt doctrine is inapplicable.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016).

Entitlement to service connection for a skin condition

The Veteran's service treatment records reveal he received treatment for a rash associated with his diagnosed syphilis, which he contracted while serving in the Republic of Vietnam.  These records indicate the rash resolved with treatment, and did not recur.  The service treatment records also show a single episode of "heat rash," as well as a single appearance of a furuncle or boil on the Veteran's left thigh.  Both episodes appear to have been promptly resolved with treatment.  

The record is otherwise bare of any evidence of skin problems until September 2010, nearly four decades after separation, when the Veteran was referred to a dermatological clinic for treatment of seborrheic keratosis, which treatment records show was treated definitively with liquid nitrogen.  

The Veteran underwent a VA examination in connection with his service connection claim for a skin disorder in November 2012.  That examiner indicated that seborrheic keratosis, a noncancerous growth, has no precisely known cause, but is considered to be genetically linked, and commonly appears after age 40.  The examiner indicated the disorder is unrelated to any aspect of the Veteran's military service, or to any other disorder.  The examiner also diagnosed the Veteran with xerosis, or abnormal dryness of the skin, which he attributed to the Veteran's age and exposure to cold weather in winter, noting the condition is generally allayed with diligent use of a skin moisturizer.  The examiner explained this condition was also unrelated to the Veteran's service, or to any other disorder.

In March 2016, a disability questionnaire was completed in connection with the instant claim by a VA dermatologist who reviewed the entire medical file.  That dermatologist confirmed the aforementioned dermatological diagnoses of record, explaining that neither would be expected complications of any of the Veteran's diagnoses noted in service, including syphilis, gonorrhea, or heat rash.  He added that neither condition had their clinical onset in service, or related to any other disorder.

While the Board is sympathetic to the Veteran's lay contentions with respect to his symptoms, it must note that he is not competent to relate his skin conditions during the appeal period to service.  See Jandreau v. Nicholson, 492 F.3d 1372.  Such an inquiry is limited to the purview of trained medical professionals because it involves a complex medical issue not capable of lay observation.  As such, the Board finds the aforementioned VA examiners' assessments to be the most probative evidence of record with respect to the question of service connection for a skin condition.

Based on the foregoing, the Board finds there is no relationship between the Veteran's diagnosed skin conditions and his service.  Therefore, the benefit of the doubt doctrine is not for application.  See U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


Entitlement to service connection for a venereal disease or the residuals thereof

The record reflects in-service diagnoses of gonorrhea and syphilis.  Service treatment records from August 1970, February 1971, and June 1972 each note gonorrhea among the Veteran's active diagnoses.  However, the record is bare of any evidence of treatment for a venereal disease of any kind since separation.  

The Veteran has contended that, among other things, skin problems that he has suffered during the appeal period constitute residuals of venereal disease.  However, this contention has not been supported by any treating or examining provider.  Specifically, a VA examining dermatologist with whom the Veteran met in November 2012 explicitly confirmed the Veteran's skin issues during the appeal period were etiologically unrelated to any venereal disease.  

The record also reflects treatment in January 2003 for pain and edema in the penis.  The condition was diagnosed as penile thrombophlebitis, and characterized as secondary to a superficial skin infection, likely from an insect bite.  No etiological relation to a venereal disease was suggested.

In sum, the record lacks any evidence that the Veteran's venereal diseases, diagnosed in service, were active during the appeal period, or caused any residuals.  In so finding, the Board affords substantial probative weight to the aforementioned November 2012 VA dermatologist's assessment.  

Because the evidence preponderates against the instant claim, the benefit of the doubt doctrine is inapplicable.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016).




ORDER

Entitlement to service connection for a pulmonary disorder other than sleep apnea is denied.   

Entitlement to service connection for a skin disorder is denied.

Entitlement to service connection for a venereal disease, or the residuals thereof, is denied.




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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