Citation Nr: 0811966 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 03-16 864 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUES 1. Entitlement to service connection for chronic obstructive lung disease (claimed as lung condition). 2. Entitlement to service connection for ringworm. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amy R. Grasman, Associate Counsel INTRODUCTION The veteran served on active duty from July 1947 to June 1950. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2002 RO decision issued. In January 2007, the veteran testified in a Travel Board Hearing in front of the undersigned Veterans Law Judge. The transcript of the hearing is associated with the claims file and has been reviewed. This appeal was remanded by the Board in August 2007 for additional development. FINDINGS OF FACT 1. The veteran has been notified of the evidence necessary to substantiate his claim, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. Affording the veteran the benefit of the doubt, the competent medical evidence shows that ringworm manifested in service and is causally or etiologically related to service. 3. The competent medical evidence shows that chronic obstructive lung disease did not manifest in service and is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. Ringworm was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.303 (2007). 2. Chronic obstructive lung disease was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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 & 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 or her representative, if any, 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). Proper notice from VA 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 her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duty to notify was satisfied regarding the claim for service condition for a lung condition by way of a letter sent to the appellant in April 2002 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in her or his possession to the AOJ. Regarding the claim for service connection for ringworm, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also 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 an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision for service connection for ringworm by way of a letter sent to the appellant in May 2003 that fully addressed all four notice elements. The letter informed the appellant of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. Although the notice letter was not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of supplemental statements of the case issued in February 2004 and April 2006 after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the veteran was provided with this notice in March 2006. Any error regarding this notice was harmless given that service connection is being denied for a lung condition, and hence no rating or effective date will be assigned with respect to this claimed condition. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board notes that the veteran's service records are presumed destroyed in the 1973 fire at the National Personnel Records Center (NPRC) and are unavailable for review. The Board is aware that in such situations, it has a heightened obligation to explain its findings and conclusions and carefully consider the benefit- of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board also recognizes that VA has a heightened obligation to search for alternate medical records when service medical records are not available and must also provide an explanation to the veteran regarding VA's inability to obtain his service medical records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The record reflects significant documentation demonstrating that the RO initiated searches for the veteran's service medical records, surgeon general's reports, sick reports and all possible records from the NPRC, all without success except for morning reports dated in August 1948 and September 1948. The veteran was notified by the RO that the records were unavailable. The Board finds that the responses from NPRC indicate that the veteran's records are likely fire related, and it is clear after multiple attempts to obtain these records, that any further attempts would be futile. Based on the foregoing actions, the Board concludes that the records sought do not exist. 38 U.S.C.A. § 5103A(b)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2007). The RO has obtained the DD Form 214 and VA medical records. The veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. The appellant was also afforded a VA medical examination in October 2007 pursuant to the August 2007 Board Remand. The Board further finds that the RO complied with its Remand. Stegall v. West, 11 Vet. App. 268 (1998). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). SERVICE CONNECTION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish direct service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Ringworm The veteran asserts that his ring worm was incurred in service in the summer of 1948 in Tokyo, Japan. Although the service medical records are unavailable, the morning reports dated in August 1948 and September 1948 indicate that the veteran was stationed in Jimmechi, Japan APO 468, Unit 2 and part of Battery B, 675 Gli FA Bn. The Morning Reports do not reveal that the veteran received medical treatment. VA medical records dated from December 1997 to January 2003 do not contain a diagnosis of or treatment for ringworm. The VA records indicate that the veteran was treated for chronic dermatitis. The veteran's wife submitted a statement in February 2003 indicating that the veteran told her that the first time he had ringworm was in 1948 while in service in Tokyo. The veteran and his wife had been married 42 years at the time of the statement and his wife stated that the veteran had ringworm approximately a couple times a month. The veteran also submitted a statement in support of his claim for service connection for ringworm in March 2004. The veteran indicated that he was hospitalized for a week or two in Tokyo, Japan at the 361st Hospital and indicated who the treating physician was. Additionally, the veteran indicated that he was also treated at a hospital in Fort Campbell, Kentucky. A statement received in December 2005 from the veteran also indicated that he was with APO 468, Unit 2. He stated that he was hospitalized in the 361st hospital in Tokyo, Japan in 1948. The veteran could not recall what month he was treated in Japan but said that it was "when the watermelons were ripe" and around the time of a "shooting match." The veteran indicated who his treating physician was and that there were pictures taken of the ringworm. The veteran indicated that he was treated with square pads with epsom salt as well as iodine. At the January 2007 hearing, the veteran described that his barracks in Japan were cement with a lot of shade trees and the conditions were damp. The veteran asserts that he contracted ringworm at the barracks and it was treated with epsom salts. The veteran asserted that the treating doctor took pictures of his stomach while in service. In an October 2007 VA Compensation and Pension Examination, a nurse practitioner diagnosed the veteran with tinea corporis, and noted that the lay name is ringworm. The examiner noted that the veteran had been found to have been treated at the hospital in Japan, and thus it was likely that he was there for treatment for fungal infection. The examiner also considered the treatment for fungal infection for several years in the medical records. The examiner noted the veteran's statement that he had fungal infections to his skin (ringworms) since he was in service and if the veteran can be presumed to be true, then it was as likely as not that the tinea corporis that the veteran currently has is the same as the ringworm that he was treated for in Japan. The examiner also noted that the etiology of the dermatologic fungal infection is exposure to the fungus topically and there was no way to determine more precisely which contact with what object or which person was the specific etiology of the veteran's tinea infection. The Board finds that the medical evidence of record supports a finding of service connection for ringworm. The veteran has a current diagnosis of ringworm. The veteran testified that he received treatment for ringworm in service. The Board notes that the veteran was specific in his description of treatment in service and the conditions in which he experienced in service. His condition was also verified by his wife's statements. He also indicated that he continually received treatment for this condition since service. As the service medical records are not available, the Board affords the veteran the benefit of the doubt and concludes that the veteran was treated for this condition in service in Japan. Assuming the veteran's statements are true, there is medical evidence linking the veteran's condition to service in the October 2007 VA examination. Accordingly, the evidence may not be said to preponderate against the veteran. Therefore, the Board resolves the benefit of the doubt in favor of the veteran and grants service connection for ringworm. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Chronic Obstructive Lung Disease The veteran asserts that he has a lung condition which resulted from his exposure to coal burning furnaces and hot water heaters in service when he was stationed at Fort Knox and Fort Campbell. As previously mentioned, service medical records are unavailable. A request was made for records from Fort Knox and Fort Campbell, however no records were available. In VA treatment notes dated in 2001 and 2002, the veteran had a history of chronic obstructive pulmonary disease (COPD) and was treated with a metered-dose inhaler. In a March 2001 VA cardiovascular examination, and treatment notes dated in 2001 through 2003, the veteran's cardiac status was stable. An echocardiogram in February 2002 revealed left ventricular hypertrophy with moderate left ventricular dysfunction, mitral annulus calcification with mild mitral regurgitation, mild-to-moderate aortic regurgitation and aortic stenosis, mild tricuspid regurgitation, and dilated left atrium. In a VA Radiology Report dated in July 2001, the veteran's heart size was normal and there was increasing bibasilar lung densities consistent with subsegmental volume loss. In the January 2007 Board hearing, the veteran testified that during service it was his job to stock coal furnaces during the morning and evening. In VA treatment records submitted by the veteran dated in February 2007, a CT revealed cardiomegaly with left ventricular and left atrial enlargement. There was extensive calcification involving the aortic and mitral valve annuli and coronary vessels. There was stigma of prior granulomatous disease with scattered small calcified granulomas in both lungs. There were two small noncalcified nodules in the posterior and posterolateral periphery of the right lower lobe which likely represented noncalcified granulomas. There was chronic underlying lung changes with areas of basilar septal thickening and fibrosis with scattered small bulla. The examiner opined that the findings reflect chronic lung disease and stigmata of prior granulomatous disease with a low probability for malignancy. In the October 2007 VA Compensation and Pension Examination, the examiner found that there was no evidence consistent with either coal dust or with chronic fungal infection causing obstructive or restrictive pulmonary disease. The examiner found that the veteran's exposure to coal dust in service was very limited. The examiner acknowledged that coal dust can cause chronic lung disease, but it was usually considered to require 20-30 years of occupational exposure. The examiner concluded that it was less likely than not that the veteran's exposure to coal dust in service caused his current obstructive and restrictive/reversible pulmonary disease. The examiner also concluded that it was less likely than not that the veteran's chronic dermatologic fungal infection caused his chronic pulmonary disease. The Board finds that the veteran has a diagnosis of COPD, as is required for service connection. There is, however, no medical or lay evidence of an in-service incident or occurrence which caused the veteran's COPD. The Board is mindful that the veteran's service medical records are not available. Therefore, giving the veteran the benefit of the doubt that he did stock coal furnaces in service, there is also no evidence of a link between that in-service occurrence and the current diagnosis of COPD. The VA examiner concluded that the veteran's exposure in service was too limited to be linked to his current diagnosis of COPD. Therefore, the Board concludes that there is no evidence of record that the veteran's COPD was incurred in or related to service. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply and the veteran's claim for service connection for chronic obstructive lung disease must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Service connection for ringworm is granted. Service connection for chronic obstructive lung disease (claimed as lung condition) is denied. ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs