Citation Nr: 0811369 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 06-13 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for toenail fungus. 2. Entitlement to service connection for acne and moles. 3. Entitlement to an evaluation in excess of 30 percent for neurodermatitis on the face with scarring. 4. Entitlement to a compensable evaluation for neurodermatitis on the forearms. 5. Entitlement to an evaluation in excess of 10 percent for sinusitis. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. N. Driever, Counsel INTRODUCTION The veteran had active service from April 1986 to April 1992. These claims come before the Board of Veterans' Appeals (Board) on appeal of a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The RO in Cleveland, Ohio certified this appeal to the Board for appellate review. The veteran's appeal initially encompassed four claims, including entitlement to an increased evaluation for neurodermatitis of the face and forearms. However, in a statement of the case issued in January 2006, the RO separated that claim into two: entitlement to an increased evaluation for neurodermatitis of the face and entitlement to an increased evaluation for neurodermatitis of the forearms. The Board has thus recharacterized the veteran's appeal to include five claims. The veteran testified in support of these claims at a hearing held before the undersigned Veterans Law Judge in Washington, D.C., in January 2008. During this hearing, the veteran raised a claim for an increased evaluation for her service- connected cervical spine disability. The Board refers this matter to the RO for appropriate action. The Board addresses the claims of entitlement to an evaluation in excess of 30 percent for neurodermatitis on the face with scarring, a compensable evaluation for neurodermatitis on the forearms, and an evaluation in excess of 10 percent for sinusitis in the Remand portion of this decision, below, and REMANDS these claims to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. VA provided the veteran adequate notice and assistance with regard to the claims being decided. 2. Toenail fungus is not related to the veteran's active service. 3. Acne and moles are related to the veteran's active service and are part of her service-connected skin disabilities. CONCLUSIONS OF LAW 1. Toenail fungus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2007). 2 Acne and moles were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2007). The VCAA and its implementing regulations are applicable to this appeal. The VCAA and its implementing regulations provide, in part, that VA will notify the claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. They also require VA to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that such assistance would aid in substantiating the claim. The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this case, with regard to the claims being decided, VA provided the veteran adequate notice and assistance such that the Board's decision to proceed in adjudicating these claims does not prejudice the veteran in the disposition thereof. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). 1. Duty to Notify The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court also indicated that the VCAA requires VA to provide notice, consistent with the requirements of 38 U.S.C.A. § 5103(A), 38 C.F.R. § 3.159(b), and Quartuccio, that informs 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. In what can be considered a fourth element of the requisite notice, the Court further held that, under 38 C.F.R. § 3.159(b), VA must request the claimant to provide any evidence in his possession that pertains to the claim. Id. at 120-21. The Court clarified that VA's regulations implementing amended section 5103(a) apply to cases pending before VA on November 9, 2000, even if the RO decision was issued before that date, and that, where notice was not mandated at the time of the initial RO decision, it was not error to provide remedial notice after such initial decision. Id. at 120, 122-24. On March 3, 2006, the Court held that the aforementioned notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The Court further held that notice under the VCAA must inform the claimant that, if the RO grants his service connection claim, it will then assign such an award a disability rating and an effective date. Id. at 486. In this case, the RO provided the veteran VCAA notice on the claims being decided by letters dated February 2002, February 2003 and May 2005, the first two sent before initially deciding those claims in a rating decision dated September 2003. The timing of such notice reflects compliance with the requirements of the law as found by the Court in Pelegrini II. The content of the aforementioned notice letters considered in conjunction with the content of other letters the RO sent to the veteran in June 2002 and May 2006 reflects compliance with the requirements of the law as found by the Court in Pelegrini II and Dingess/Hartman. Therein, the RO acknowledged the claims being decided, informed the veteran of the evidence necessary to support those claims, identified the type of evidence that would best do so, notified her of the VCAA and VA's duty to assist and indicated that it was developing her claims pursuant to that duty. The RO also provided the veteran all necessary information on disability evaluations and effective dates. As well, the RO identified the evidence it had received in support of the veteran's claims and the evidence it was responsible for securing. The RO noted that it would make reasonable efforts to assist the veteran in obtaining all outstanding evidence provided she identified the source(s) thereof, but that, ultimately, it was the veteran's responsibility to ensure VA's receipt of all requested evidence. The RO advised the veteran to sign the enclosed forms authorizing the release of her treatment records if she wished VA to obtain them on her behalf. The RO also advised the veteran to identify or send directly to VA all evidence she had in her possession, which pertained to her claims. 2. Duty to Assist The RO made reasonable efforts to identify and obtain relevant records in support of the claims being decided. U.S.C.A. § 5103A(a), (b), (c) (West 2002). First, the RO endeavored to secure and associate with the claims file all evidence the veteran identified as being pertinent to those claims, including service medical records and post-service VA and private treatment records. Second, the RO conducted medical inquiry in an effort to substantiate the claims being decided by affording the veteran VA medical examinations, during which VA examiners addressed the presence and etiology of the veteran's skin abnormalities. The RO does not now claim that the reports of these examinations are inadequate to decide her claims. Under the facts of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what additional evidence [s]he should submit to substantiate h[er] claim[s]." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant). B. Analysis of Claims The veteran's appeal includes claims of entitlement to service connection for toenail fungus, acne and moles. According to the veteran's written statements submitted during the course of this appeal and her hearing testimony, presented in January 2008, she first had problems with her toenails during service, in the 1980s, when she was training and running often in boots. Allegedly, the boots did not fit correctly, which caused the toenail condition to develop. She asserts that the skin condition on the rest of her body, including her face, also manifested in service and has been misdiagnosed since then, including as acne and moles. She does not actually believe that the condition on her face is acne, but knows that this condition, however diagnosed, as well as the moles, are related to her active service. Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). Subsequent manifestations of a chronic disease in service, however remote, are to be service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge 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). Service connection may be presumed for scleroderma if it is shown that the veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, and manifested one of these conditions to a degree of 10 percent within one year from the date of discharge with no evidence of record establishing otherwise. 38 U.S.C.A. §§ 1101, 1112(a), 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2007). In order to prevail on the issue of service connection on the merits, there must be medical evidence of a current disability, see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). a. Toenail Fungus VA and private treatment records dated since April 1999 and a report of VA examination conducted in September 2005 reflect that the veteran currently has toenail abnormalities that have been variously diagnosed, including as fungus. The question is thus whether this disability is related to the veteran's active service. According to the veteran's service medical records, the veteran reported various skin complaints during service, but none involving her feet. In addition, no medical professional diagnosed toenail fungus or any other abnormality of the toenails. Since April 1999, seven years after discharge from service, medical professionals have noted toenail abnormalities, including fungus. One such professional, a VA examiner, addressed the etiology of the condition. In a report of VA examination conducted in September 2005, that examiner acknowledged the veteran's in-service skin complaints and concluded that it was less likely than not that the veteran's toenail fungus was related to her military service. He noted that, although having to wear boots and being exposed to humidity could cause such fungus to develop secondary to sweating, because toenail fungus was not documented in the service medical records, it would be speculative to assume that the fungus manifested secondary to the wearing of the boots, as alleged. The veteran has not submitted a medical opinion refuting that of the VA examiner. As noted above, to prevail in a claim for service connection, the veteran must submit competent evidence establishing that she has a current disability resulting from service. In this case, the veteran's assertions represent the only evidence of record linking her toenail fungus to service. The veteran's assertions in this regard are insufficient to establish the nexus element of a service connection claim as the record does not reflect that the veteran possesses a recognized degree of medical knowledge to provide a medical opinion on causation. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (holding that laypersons are not competent to offer medical opinions). In the absence of competent evidence establishing that the veteran's toenail fungus is related to her active service, the Board concludes that such disability was not incurred in or aggravated by service. The evidence is not in relative equipoise; therefore, the veteran may not be afforded the benefit of the doubt in the resolution of this claim. Rather, as a preponderance of the evidence is against such claim, it must be denied. b. Acne and Moles VA and private treatment records dated since October 2001 and reports of VA examinations conducted in March 2003 and September 2005 reflect that the veteran currently has a skin disability affecting her face and the rest of her body, which has been variously diagnosed, including as acne and moles. The question is thus whether this disability is related to the veteran's active service. According to the veteran's service medical records, in service, the veteran received treatment for skin complaints on multiple occasions during service. However, no medical professional diagnosed acne or moles. Since October 2001, medical professionals have diagnosed such conditions. One such professional, a VA examiner, addressed the etiology of the veteran's skin disability in general. In a report of VA examination conducted in September 2005, that examiner acknowledged the veteran's in-service skin treatment of the face and arms, noted, in part, moles, diagnosed neurodermatitis and concluded that the veteran's skin disability was at least as likely as not related to her period of active service. Although this examiner did not note any acne on the examination he conducted, the Board believes his opinion is sufficient to show that any skin disability affecting the veteran's face, whether diagnosed as acne or some other condition, is related to her active service. In fact, it appears that the RO has already considered such condition as part of the veteran's service- connected skin disabilities. Inasmuch as acne and moles are related to the veteran's active service and are part of her service-connected skin disabilities, the Board concludes that such disabilities were incurred in service. The evidence in this case supports this claim; such claim must therefore be granted. ORDER Service connection for toenail fungus is denied. Service connection for acne and moles is granted. REMAND The veteran also claims entitlement to an evaluation in excess of 30 percent for neurodermatitis on the face with scarring, a compensable evaluation for neurodermatitis on the forearms, and an evaluation in excess of 10 percent for sinusitis. Additional action is necessary before the Board decides these claims. In January 2008, the Court held that, with regard to claims for increased compensation, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, he must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life. Vazquez- Flores v. Peake, No. 05-0355, (U.S. Vet. App. Jan. 30, 2008). The Court further held that, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life (such as a specific measurement or test result), the Secretary must too provide at least general notice of that requirement. As well, the Court held that the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must cite examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, including competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. In this case, during the course of this appeal, the RO provided the veteran VCAA notice on his claims for increased evaluations, but given the Court's recent decision in Vazquez-Flores, such notice is inadequate. It informs the veteran of the need to submit medical or lay evidence demonstrating a worsening or increase in severity of her skin and respiratory disabilities. It does not inform her of the need to submit evidence describing the effect that worsening has on her employment and daily life. Moreover, the veteran has not submitted any statements or taken actions, which show that he has actual knowledge of this requirement. Any decision to proceed in adjudicating these claims would therefore prejudice the veteran in the disposition thereof. Bernard v. Brown, 4 Vet. App. at 392-94. Based on the foregoing, this case is REMANDED for the following action: 1. Provide the veteran VCAA notice pertaining to the claims being remanded, which satisfies the requirements of the Court's recent holding, noted above. 2. Readjudicate the claims being remanded based on all of the evidence of record, including that which the veteran submitted directly to the Board in January 2008. If any benefit sought on appeal is not granted to the veteran's satisfaction, provide the veteran a supplemental statement of the case and an opportunity to respond thereto. Thereafter, subject to current appellate procedure, return this case to the Board for further consideration, if in order. By this REMAND, the Board intimates no opinion as to the ultimate disposition of these claims. No action is required of the veteran unless she receives further notice. She does, however, have the right to submit additional evidence and argument on the remanded claims. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). The law requires that these claims be afforded expeditious treatment. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes) (providing that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled expeditiously); see also VBA's Adjudication Procedure Manual, M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03 (directing the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court). ______________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs