Citation Nr: 0804512 Decision Date: 02/08/08 Archive Date: 02/13/08 DOCKET NO. 05-06 653A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for seborrheic dermatitis. 2. Entitlement to service connection for dystrophic toenails. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD A. Muhlfeld, Associate Counsel INTRODUCTION The veteran had active military service from September 1967 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The veteran testified before the undersigned Veterans Law Judge at a hearing in January 2008. A transcript of that hearing is of record. FINDINGS OF FACT 1. The veteran does not have seborrheic dermatitis that is related to service. 2. The veteran does not have dystrophic toenails that are related to service. CONCLUSIONS OF LAW 1. The veteran does not have seborrheic dermatitis that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). 2. The veteran does not have dystrophic toenails that are the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that the veteran was apprised of VA's duties to both notify and assist in correspondence dated in August 2003, March 2006 and May 2006. (Although the complete notice required by the VCAA was not provided until after the RO adjudicated the appellant's claim, "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. Consequently, the Board does not find that the late notice under the VCAA requires remand to the RO. Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA.) Specifically regarding VA's duty to notify, the notifications to the veteran apprised him of what the evidence must show to establish entitlement to service connection, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the veteran's behalf. The RO specifically requested that the veteran either identify or submit any evidence or information he had pertaining to his claim. The RO also provided a statement of the case (SOC) and a supplemental statement of the case (SSOC) reporting the results of its reviews of each issue and the text of the relevant portions of the VA regulations. The veteran was apprised of the criteria for assigning disability ratings and for award of an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, the RO obtained the veteran's service medical records (SMRs), and VA and private medical records, and secured an examination in furtherance of his claims. The Board notes that during his January 2008 Board hearing, the veteran noted that he was treated for his seborrheic dermatitis immediately following service for approximately six months at the Chicago Illinois VA medical center/and or VA Hospital. However, as the veteran's representative pointed out in the hearing, the RO attempted to retrieve these records to no avail because the Chicago VAMC only archived records back to 1974, thus the records of his six months of treatment cannot be obtained. VA has no duty to inform or assist that was unmet. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Caluza v. Brown, 7 Vet. App. 498 (1995). Further, it is not enough that an injury or disease occurred in service; 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). At the outset, the Board notes that the veteran's representative at the January 2008 Board hearing stated that the veteran was no longer claiming that his disabilities were related to his exposure to herbicides while stationed in Vietnam. Specifically, the veteran contended that he developed his seborrheic dermatitis and dystrophic toenails while serving in Vietnam. Regarding his skin problems, he contends that he first noticed a skin rash after he received a gunshot wound and went to see a medic. The veteran stated that he was given a salve to put on the rash, but it kept spreading to all parts of his body. The veteran noted that since his service in Vietnam, he has continuously experienced skin rashes, and stated that he did not have any type of rash or allergies prior to entry into the military. At his hearing, the veteran noted that in service, his skin rash (now diagnosed as seborrheic dermatitis), was primarily located on his back and head, but now it is all over, and dries and flakes off. Regarding his foot (now diagnosed as dystrophic toenails), the veteran contends that he was walking through swampy areas, and rice patties, and believes that this caused him to develop a foot fungus. During his January 2008 Board hearing, the veteran stated that immediately after leaving the military, he followed up with VA regarding his skin rash, and was given a solution to take baths in and a solution to oil down with. He noted that the rash would clear up, and when it would come back, he would not go back to VA for treatment but instead applied the solutions he was initially given to use. The veteran stated that he sought treatment at VA for about six months immediately following discharge, but then just used the lotions when he had flare-ups. The veteran noted that he had been seeking treatment through a private doctor for the past ten years. In sum, the veteran stated that he had been treating his seborrheic dermatitis and dystrophic toenails on his own with topical solutions continuously since the time he left the military, even though he did not continuously seek treatment from a doctor. Initially, the Board notes that the SMRs are completely devoid of any treatment for, or complaints relating to, any sort of skin disorder/condition or foot fungus. Further, the July 1967 entrance examination and the April 1969 discharge examination both note normal clinical evaluations of the skin. The veteran was afforded a VA examination in October 2003. At this examination, the veteran reported that he had flaking over his face and feet and was told in the military that he had a fungus. He reported that he used desoximetasone over the face and the foot, prescribed to him by an outside dermatologist, and also used Selsun shampoo. The veteran reported that he was also recently placed on a course of griseofulvin micro emulsion 500 for one month and had been taking that for two days. The examiner noted that the veteran had no local skin symptoms or systematic symptoms, but he did have mild pruritus over his face and over his scalp occasionally. The examiner also noted that the scalp was within normal limits, and he had no malignant neoplasms, no benign neoplasms, and no urticaria. On examination, the examiner noted that the veteran's face had some mild dyschromia, scaling, and some mild erythema. However, the examiner noted, no scarring alopecia, no alopecia areata, no hyperhidrosis, no acne or chloracne, no primary cutaneous vasculitis, and no erythema multiforme. The examiner diagnosed the veteran with mild seborrheic dermatitis, and toe nails that were mildly dystrophic, and commented that neither condition was the result of exposure to Agent Orange while in Vietnam. The record contains a March 2005 letter from M.M., M.D. diagnosing the veteran with post-inflammatory hyperpigmentation of the abdomen and left leg, and tinea unguis at L1 and R1 toenails, and noted that no additional treatment was needed beyond the Lamisil the veteran was already using. Treatment notes dated from September 2003 through April 2005, contain a September 2003 entry noting that the veteran needed a lipid test because he had fungus on both big toes that will not go away. Another entry dated in October 2003, noted that the veteran was still itching on his head and hands and had been using Selsun Blue which helped somewhat; and an April 2005 entry contained a diagnosis of dermatitis. The file also contains a dermatopathology report dated in October 2005 from V.I., M.D., of the Dermatology Associates, providing a clinical impression of porokeratosis vs. ED vs. other; and a microscopic diagnosis of atrophic epidermis with lichnoid interface dermatitis, and noting that these changes may be seen in atrophic lichen planus or possibly a drug reaction, and noted that the lack of periadnexal and deep inflammation made lupus less likely. Treatment reports from M.M., M.D., dated from March 2005 through January 2006, contain treatment for the veteran's skin and his toenail fungus. Specifically, a March 2005 entry noted that the veteran had dark spots on his leg and arm, since Vietnam, and stated that it started as a rash and then got dark, noted occasional itching and questioned whether this could possibly be connected to agent orange. Regarding the toenails, Dr. M. noted that the veteran was prescribed Lamisil pills which cleared up all but one toenail. An entry dated in October 2005, again noted dark spots, and stated that the veteran believed his skin condition was related to agent orange. The examiner noted some hyperpigmentation, and noted pigmented atrophic plaque on the lateral left leg, and gave an impression of porokeratosis. Additionally, Dr. M. noted that most lesions developed a long time after the veteran's service in Vietnam, and therefore, he could not link his skin condition with agent orange exposure. In January 2006, the veteran submitted pictures of his back, noting that they were taken at a time when his back itched and flared up with bumps. In this case, there is evidence of current disabilities- seborrheic dermatitis and dystrophic toe nails, as diagnosed by the October 2003 VA examination. However, as noted above, the veteran's SMRs do not contain complaints or treatment related to any type of skin disability or foot fungus, and the veteran's entrance and discharge examinations reveal a normal clinical evaluation for the skin and feet. The veteran noted on his VA Form 9, substantive appeal, that he was treated for fungus and a skin disease during his military tour on February 26, 1969. Although his SMRs do contain an entry on this date noting that an x-ray was taken of the left forearm, this entry did not mention a skin disorder or foot fungus. Further, although the veteran argued that he continuously battled with recurring skin problems and foot fungus since his discharge from the military, the first documented post-service medical evidence in the record pertaining to a skin disability is the October 2003 VA examination where the veteran was diagnosed with mild seborrheic dermatitis and mildly dystrophic toenails. Although the Board acknowledges that the veteran stated he sought treatment for both disabilities immediately following discharge at the Chicago VAMC, unfortunately an inquiry was made and these records are not available for the time period in question (1969-1970). Moreover, further evidence of a lack of continuity of symptomatology following service is found in an October 2005 treatment record by Dr. M., who stated that the veteran's skin lesions developed a long time after his service in Vietnam. Lastly, the Board notes that there is no medical evidence of record linking the veteran's currently diagnosed seborrheic dermatitis or dystrophic toenails to military service. The Board notes in passing that the record shows that the veteran served in Vietnam. Therefore, exposure to herbicides is conceded. 38 C.F.R. § 3.307(a)(6)(iii). However, seborrheic dermatitis is not a disease noted under 38 C.F.R. § 3.309 as a disease having a positive association with herbicide exposure. Therefore, the veteran's seborrheic dermatitis is not presumed to be the result of in-service disease or injury. Further, the record does not contain medical evidence linking the veteran's seborrheic dermatitis to herbicide exposure, and in fact, both the October 2003 VA examiner, and Dr. M., the veteran's private physician, specifically stated that that the veteran's skin disability was not related to herbicide exposure from his time spent in Vietnam. In sum, although the veteran is currently diagnosed with seborrheic dermatitis and dystrophic toenails, there is no evidence of in-service incurrence or aggravation, and no evidence of record medically relating either disability to military service, including in-service herbicide exposure. Absent a medical opinion in the record of a relationship to military service in general, or specifically, to exposure to herbicide agents during military service and the development of seborrheic dermatitis and/or dystrophic toenails, the veteran's service connection claim must be denied. Although the veteran contends that his seborrheic dermatitis and dystrophic toenails are related to service, there is no indication, and he does not contend, that he has any education, training, or experience that would make him competent to render medical opinions concerning etiological relationships. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a)(1) (2007). ORDER Entitlement to service connection for seborrheic dermatitis is denied. Entitlement to service connection for dystrophic toenails is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs