Citation Nr: 1216667 Decision Date: 05/09/12 Archive Date: 05/16/12 DOCKET NO. 10-43 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a chronic skin disorder, other than multiple myeloma, to include eczema and tinea versicolor. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active military service from May 1969 to February 1971. This appeal arises before the Board of Veterans' Appeals (Board) from a November 2009 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied service connection for a skin disorder (other than myeloma), to include eczema and tinea versicolor. In January 2010, the Veteran filed a Notice of Disagreement (NOD); the RO furnished the Veteran a Statement of the Case (SOC) in September 2010; and, in that same month, the Veteran filed his Substantive Appeal (VA Form 9). In March 2012 the Veteran submitted additional evidence with a waiver of initial RO jurisdiction. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800. As a procedural matter, in a February 2003 rating decision, the RO denied the Veteran's claim of entitlement to service connection for multiple myeloma, which was not appealed and is deemed final. 38 U.S.C.A. §§ 7105(b), 7105(c) (West 2002). While the prior denial concerned a form of skin cancer, the current claim for a skin disorder involves differing diagnoses that were not considered by the RO in the February 2003 rating decision. In Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury. Rather, the two claims must be considered independently. See Ephraim v. Brown, 82 F.3d 399 (Fec. Cir. 1996). In this case, it is clear that the Veteran is now claiming an in-service onset of eczema and tinea versicolor in his claim of August 2009 and as such, this discrete claim must be construed as a new claim for service connection for skin disorder, which does not require the submission of new and material evidence in order to prevail. Therefore, the Board has phrased the issues as listed on the cover page. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's current skin rash, variously diagnosed as eczema and tinea versicolor, originated in service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, a chronic skin disorder variously diagnosed as eczema and tinea versicolor (other than multiple myeloma) was incurred in active service. 38 U.S.C.A. § 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Here the decision below is granting in full the benefits sought on appeal. Accordingly, even assuming that an error was committed with respect to either the duty to notify or the duty to assist such error was harmless and will not be further discussed. II. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110 , 1131; 38 C.F.R. § 3.303(a). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after service, 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). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that his skin condition manifested by eczema and tinea versicolor is related to his military service. The Veteran's service treatment records indicate that in December 1970 he was seen for mild dermatitis on his neck and both forearms for the past two days and he was prescribed hydrocortisone and Benadryl. The Veteran's January 1971 Report of Medical Examination for Separation had "normal" checked for skin, lymphatics. The post-service medical records indicate that the Veteran received private hospital care at the University of North Carolina Hospital, dated between 1994 and 1997. These private records disclose that in 1994 the Veteran was diagnosed with multiple myeloma and plasmacytoma of the left humerus, for which he underwent chemotherapy (which was repeated from March 1996 to June 1996) and radiation, and was also on Melphalan and Prednisone. In September 1995, the Veteran was seen for follow-up from his radiation therapy to the lytic lesion and proximal left femur followed by subsequent internal stabilizations. The Veteran complained of a skin "infection," stating a past history of this same infection for which he used a lotion; the diagnosis was of tinea versicolor and the Veteran was given prescriptions for Selsun and Miconazole cream. When the Veteran was seen for follow up evaluation in the hematology-oncology clinic in February 1996, he reported no symptoms attributable to his myeloma. The undated private records, dated between 1996 and 1997, indicate a diagnosis of recurrent eczema on the hands which the Veteran had for the past year and was noted to be worse in the winter. Additional undated private records from that time period also indicated that the Veteran had a pruritic rash on his face for the past 3 days, noting that the Veteran had a history of exposure and tinea versicolor. A computerized list of problems in the Veteran's VA treatment records lists eczema on mostly the hands and feet and tinea versicolor on the neck and torso areas, both diagnosed in December 2004. A December 2004 treatment note indicated that the Veteran had warm, dry ulcerations/tinea versicolor lesions on the neck and torso, and dry eczema on his eyebrows, joint surfaces, hands, and feet. In January 2008 the Veteran was seen for returning tinea versicolor on the trunk and for refills of Selsun. On the Veteran's torso there were scattered dark brown spots that were slightly flaky. In June 2009 it was noted that the Veteran had some tinea versicolor lesions beginning on the torso and that they were worse in the summer. The Veteran underwent a VA examination in July 2010. In the Veteran's history the VA examiner stated that the Veteran was a boatswain mate in the Navy and had multiple jobs which included cleaning, chipping, and painting among other things; he also worked with multiple cleaning agents, other solvents, and paints. It was noted that he sought treatment once during service and that after he left service he went to several private physicians who diagnosed eczema and treated him with steroid creams. This continued to be an intermittent problem through 1994 and at that time he went on medication for multiple myeloma and that one doctor did skin scrapings and reportedly told him he had tinea versicolor. It was noted that the Veteran had a dry rash that was itchy and intermittent. The VA examiner diagnosed the Veteran with eczema and stated that there was no specific evidence of tinea versicolor. In rendering his opinion the July 2010 VA examiner stated that in 1970, the Veteran was performing duties which involved the use of detergents and other solvents. The rash described (in the Veteran's service treatment records) could have been a contact dermatitis with eczematoid appearance or a true eczema. At any rate, the short term topical steroids and antihistamines used resolved the issue for several years. The Veteran reported that he went to other physicians over the years and was treated with topical steroids all of which appeared to resolve the issue. In the mid 90's, the Veteran was diagnosed with multiple myeloma and has been on treatment for this condition since then. The medications used to treat myeloma as well as the myeloma itself also cause various skin manifestations. According to the VA examiner, at this time, he saw no clear cut signs or symptoms of tinea versicolor. The VA examiner concluded that due to the multiple variables surrounding the onset of the condition during the Veteran's military service and over the period of time since his separation, he could not resolve the issue without resorting to mere speculation. In September 2010, the Veteran's private physician stated that he treated the Veteran for a number of medical problems, which included tinea versicolor. He opined that he suspected from the Veteran's description, the Veteran's condition is part of the same rash for which the military and subsequent civilian doctors have been treating. The Board notes that there are two opinions of record, the July 2010 VA opinion and the September 2010 private opinion. The Board notes that the findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). However, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App 614 (1992). After a careful review of the Veteran's claims file the Board finds that even though the July 2010 VA examiner could not opine without resorting to mere speculation and the September 2010 private opinion was speculative service connection is warranted. The Board notes that medical opinions expressed in speculative language do not provide the degree of certainty required for medical nexus evidence. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993). The Board finds that even though neither of the medical opinions of record gave a firm nexus opinion (either negative or positive) service connection is still warranted because the medical evidence of record, including the July 2010 and September 2010 opinions, support the Veteran's lay statements and document that the Veteran has a skin rash that has persisted since service. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); (Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Throughout the course of his communications with VA, the Veteran has consistently maintained that his skin rash began in service from his use of detergents and other solvents while performing his military duties. Though the Veteran was diagnosed during service with dermatitis and there is no indication that he was diagnosed with tinea versicolor in service, the locations of his in-service skin rashes were his neck and hands. The Veteran's post-service treatment records indicate that he has diagnoses of a skin rash on his neck and face (tinea versicolor) and on his hands and feet (eczema); thus the Board finds that his current diagnoses and the locations of the affected areas are the same as those noted in service. The Veteran was discharged from the military less than two months after he complained of and treated for a skin rash, which was diagnosed as dermatitis. The July 2010 VA examiner noted that the Veteran sought treatment after he left service, he went to several private physicians who diagnosed him with eczema and treated him with steroid creams, and that this continued to be an intermittent problem through 1994, when he went on medication for his multiple myeloma. Thus, the Board finds that the July 2010 VA examiner helps to establish that the dermatitis noted in service was chronic and continued since service. In addition, the Veteran reported in September 1995 that he had skin "infections" in the past and was treated with lotion; his private doctors relied upon the truthfulness of the Veteran's oral history and prescribed lotion to deal with his skin "infections." The Board notes that the July 2010 VA examiner stated that he could not opine without resorting to mere speculation on the onset of the Veteran's skin rash because of multiple variables and that the medications used to treat myeloma, as well as the myeloma itself, could also cause various skin manifestations. However, the VA examiner does not state what these possible various skin manifestations are. Moreover, the Veteran's extensive medical records from the University of North Carolina Hospital do not support this statement, because at no point during the course of this hospital care has any skin infection (or rash) been associated with his treatment for multiple myeloma. Instead, these hospital records indicate that the only report of a skin infection (rash) during his treatment for multiple myeloma was noted to be the same as that of past infections; and in addition, in February 1996, the Veteran reported no symptoms attributable to his myeloma. Thus, the Board finds that the evidence of record does not establish that the Veteran's post-service symptoms of a skin infection (rash), variously diagnosed as eczema and tinea versicolor, are related either directly to his multiple myeloma or to the medications and treatments used for his multiple myeloma. The Board finds that the Veteran has consistently maintained that his skin disorder, variously diagnosed as eczema and tinea versicolor, began in service from his use of detergents and other solvents while performing his military duties. Such consistency, when taken together with the Veteran's circumstances of service, makes his statements credible. Given the nature of the Veteran's skin disorder, which was noted in service, he is competent to state the sequence of events as to when he began to perceive this type of a skin condition. This truthfulness carries over to his post-service statements to not only the Board and VA but to his private and VA doctors. After careful review of the record, including credible statements from the Veteran to his physicians and to the VA, and consideration of all medical findings and opinions on file, and giving the benefit of any doubt to the Veteran, the Board determines the evidence for and against the claim to be at least in approximate balance. Under such circumstances, resolution of all reasonable doubt shall be in the Veteran's favor. Consequently, the Board concludes that service connection for a chronic skin disorder, variously diagnosed as eczema and tinea versicolor (other than multiple myeloma), is warranted. ORDER Service connection for a chronic skin disorder, variously diagnosed as eczema and tinea versicolor (other than multiple myeloma), is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs