Citation Nr: 0809945 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 05-21 469 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for folliculitis decalvans, claimed as alopecia and scalp sores. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The veteran had active military service from December 1959 to January 1960. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating determination by the above Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The veteran's folliculitis devalcans preexisted service and did not undergo an increase in severity during service that could be identified as an advancement beyond normal progression. CONCLUSION OF LAW The veteran's folliculitis decalvans pre-existed active service and was not aggravated by service. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles, which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The Board notes that the language of the aforementioned regulation at 38 C.F.R. § 3.304(b) (2004) was amended during the pendency of this appeal, effective May 4, 2005. See 70 Fed. Reg. 23,027-29 (May 4, 2005) (now codified at 38 C.F.R. § 3.304(b) (2007)). The amended regulation requires that VA, rather than the claimant, bear the burden of proving that the disability at issue pre-existed entry into service, and that the disability was not aggravated by service, before the presumption of soundness on entrance into active service may be rebutted. See also Cotant v. Principi, 17 Vet. App. 116 (2003). Where a law or regulation changes after a claim has been filed, but before the administrative and/or appeal process has been concluded, both the old and new versions must be considered. See VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000). The Board will therefore consider both the old and new versions of 38 C.F.R. § 3.304(b), noting that the amended regulation establishes a somewhat lesser burden upon the claimant. Mere history provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). The Court of Appeals for Veterans Claims (Court) has held that the presumption of soundness upon entry into service may not be rebutted without "contemporaneous clinical evidence or recorded history" in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Subsequently, a higher court explained the Miller decision by noting that "[n]othing in the court's opinion suggests that without such evidence the presumption can never be rebutted," emphasizing that any such determination must consider "how strong the other rebutting evidence might be." Harris v. West, 203 F.3d 1347, 1351 (Fed. Cir. 2000). As noted, under 38 U.S.C.A. § 1111, the presumption of soundness does not attach on conditions recorded on entrance examination reports or may be rebutted by clear and unmistakable evidence that a disease or injury existed prior to service and was not aggravated therein. If the presumption of soundness does not attach or has been rebutted, aggravation may not be conceded unless the pre- existing condition increased in severity during service, pursuant to 38 C.F.R. § 3.306. See VAOPGCPREC 3-2003 (July 16, 2003). The burden of proof is upon VA to rebut the presumption by producing that clear and unmistakable evidence. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Temporary or intermittent flare-ups during service of a pre- existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is permanently worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Factual Background and Analysis The veteran underwent an enlistment examination on December 15, 1959, clinical evaluation of the skin was normal. However, the service medical records (SMRs) show that very soon thereafter a dermatology consultation was requested. The consultation report dated on January 14, 1960, shows that an impression of folliculitis decalvans was made. The etiology was noted as "probably bacterial" and the prognosis was that the disease is chronic and the patient should be discharged from the service with an EPTS (existed prior to service) discharge. On January 19, 1960 separation examination, the veteran was evaluated for progressive spotty alopecia. He indicated that about 8 years earlier he began losing his hair, which started as an infection and blisters at the root. Physical examination revealed spotty alopecia particularly more prominent in the frontal and vertex area of the skull with thinning in other areas of the scalp. The diagnosis was folliculitis decalvans, etiology bacterial, chronic in nature. The examiner concluded that the veteran's medical condition existed prior to service and had not been aggravated by service beyond the normal progression of the disease. A Medical Board Report dated January 21, 1960 shows that the veteran had a chronic condition which may be progressive and disfiguring and makes him a poor risk for continued military service. The veteran was subsequently discharged from service. In light of the foregoing the Board finds that although the presumption of soundness has attached, as the disorder was not noted on entrance examination, the objective evidence clearly and unmistakable establishes that the veteran's skin disorder existed prior to service. The evidence is clear and unmistakable in this regard based on the veteran's short period of service, his initial dermatology consult request, which was initiated shortly after his enlistment, and based on the objective findings of the dermatology evaluations, and reports and findings of the Medical Board. On February 2006 VA examination, the examiner also found that the veteran's disorder clearly and unmistakably existed prior to service. The Board also finds that the evidence clearly and unmistakably establishes that the veteran's skin disease was not aggravated beyond its natural progression during active duty. As stated above, a pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. In this case, the SMRs do not reveal permanent aggravation of the veteran's preexisting condition. There is no question that he was evaluated for folliculitis within days of service entrance however, this episode was more consistent with a flare-up rather than permanent worsening. This single episode does not establish a permanent increase in the disability, as it does not indicate any pathological changes to the veteran's pre-existing disorder. Moreover, at separation the veteran's folliculitis was considered to have preexisted service and not aggravated by service beyond the normal progression of the disease. Therefore, the SMRs establish that the veteran's folliculitis did not permanently increase in severity. The Board notes that this conclusion is further supported by the post-service clinical records which make no further reference to folliculitis. Because the veteran has not presented complaints of or treatment for the disease until many years subsequent to service, there is no evidence of a continuity of symptomatology. This strengthens the conclusion that his pre-service skin disease was essentially unaffected by service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim); Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Further, in February 2006 a VA examiner was asked to review the claims file and determine whether the evidence of record led to the clear and mistakable medical conclusion that the veteran's folliculitis decalvans with spotty alopecia preexisted his entrance into active duty in December 1959. The examiner noted the veteran was examined 9 days after he was brought into active duty, and by his own report had had the problem for 8 years prior. It was noted that the condition was chronic, progressive and disfiguring, making the veteran a poor risk for continued military service. The examiner also noted the post-service treatment records since service did not mention alopecia or folliculitis decalvans. The examiner concluded that it was clear and unmistakable that the folliculitis decalvans with spotty alopecia preexisted the veteran's entrance into active duty. Although the veteran would not have developed alopecia without having had significant inflammation and irritation, it was clear and unmistakable that the treatment consultation in service represented the natural progression of the condition without any evidence of permanent aggravation of the disease in service, i.e. abnormal progression beyond normal in the service. The cumulative effect of the foregoing is that the veteran's folliculitis devalcans existed prior to service and was not aggravated therein. As such, a preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). Duty to Notify and Assist 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, 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). Proper 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, and (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 RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a SOC or supplemental SOC (SSOC), is sufficient to cure a timing defect). The U.S. Court of Appeals for the Federal Circuit recently held that any error in a VCAA notice should be presumed prejudicial. The claimant bears the burden of demonstrating such error. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) In a December 2003 letter, the RO informed the veteran of its duty to assist him in substantiating his claim under the VCAA, and the effect of this duty upon his claim. This letter pre-dated the RO's March 2004 rating decision. See also VCAA letter dated in March 2006. The letters informed him that VA would obtain all relevant evidence in the custody of a Federal department or agency, including VA, the service department, the Social Security Administration, and other pertinent agencies. He was advised that it was his responsibility to send any other medical records supporting his claim, or to provide a properly executed release so that VA could request the records for him. The veteran was also specifically asked to provide "any evidence in your possession that pertains to your claim." The contents of the above letters provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. He was provided opportunities to submit additional evidence. The purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. In addition, it appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The veteran's service medical records, VA and non VA treatment reports, and VA examinations are of record. It is therefore the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. The Board is also aware of the considerations of the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), regarding the need for notification that a disability rating and an effective date for the award of benefits will be assigned if service connection or increased ratings are awarded. However, in this case since the claim in question are being denied, such matters are moot. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible and no further assistance to the veteran in developing the facts pertinent to the issue on appeal is required to comply with the duties to notify and assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. ORDER Service connection for folliculitis decalvans, claimed as alopecia and scalp sores is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs