Citation Nr: 0812444 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 05-34 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a skin condition of both hands and both feet. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Saira Sleemi, Associate Counsel INTRODUCTION The veteran served on active duty from November 1966 to October 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Regional Office (RO) that denied service connection for a skin condition of both hands and both feet. FINDINGS OF FACT A skin condition of both hands and both feet did not originate in service and is not related to any incident of service. CONCLUSION OF LAW A skin condition of both hands and both feet was not incurred in or aggravated by active service, nor may such be presumed. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. In this case, in a December 2004 letter, issued prior to the decision on appeal, the RO provided notice to the appellant regarding what information and evidence is needed to substantiate the claim, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need to submit any additional evidence in his possession that pertains to the claim. The veteran was advised about how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations in March 2006. This case was last readjudicated in November 2006. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file includes service treatment records, the veteran's multiple contentions, letters from VA hospitals to the veteran, a transcript from a hearing at the RO, and VA and private medical records. The RO made numerous attempts to obtain VA treatment records dating since 1968 from the Buffalo and Bay Pines VA Medical Centers. However, no records could be located and further efforts to obtain such would be futile. The Board notes that a VA examination has not been scheduled in this case. However, as the record does not show competent evidence of a skin rash of the hands and feet in service or for many years thereafter, or competent evidence that the disorder may be related to service, an examination is not necessary. 38 C.F.R. § 3.159(c)(4); see also Duenas v. Principi, 18 Vet. App. 512, 517 (2004). As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no indication that there is any prejudice to the veteran by the order of the events in this case. See Pelegrini, supra; Bernard v. Brown, 4 Vet. App. 384 (1993). Moreover, as the Board concludes below that the preponderance of the evidence is against the veteran's claim for service connection, any question as to an appropriate evaluation or effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Sanders, supra. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (2007). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of an in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). When such a veteran develops chloracne, which disorder has been shown to be caused by exposure to Agent Orange, to a degree of 10 percent or more within one year following last exposure, the disorder shall be presumed to have been incurred during service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2007). As an initial matter, the veteran served in the Navy during the Vietnam era and received a Vietnam Service Medal. However, he has not been diagnosed with chloracne. Thus, the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309 do not apply. Upon consideration of the claim on a direct basis, the veteran contends that his current skin disorder began in service. Service treatment records reflect no findings or treatment of a skin rash. Moreover, his separation examination noted a normal skin examination other than a linear 1 inch scar on the forehead and first digit of the right hand. Examination of the feet was also normal. Private medical records reflect the veteran was treated at a hospital for three days in November 1968, only a few weeks following separation from service. The November 1968 hospital discharge summary report noted treatment for fever and abdominal pain. No complaints or findings of any skin rash were noted. During an April 1969 VA examination, the veteran was examined pursuant to a claim for service connection for plantar warts and an intestinal condition. The examination report reflects that upon examination of the skin, four plantar warts were noted on the bottom of the feet. No other conditions of the skin were identified on either the hands or feet. Private and VA medical records indicate the veteran has a current skin condition of both hands and feet. Private medical records from January 2003 to March 2005 reflect the veteran was treated for a skin condition of both hands and both feet that was listed under the impression as dermatitis with pruritus. In a private medical report from January 2003 the physician noted that since the veteran was in the military service, he has had a recurrent eruption on his hands and feet. Although this statement noted the veteran's reported history of a skin condition that existed since his military service, the private physician does not, at any time during the veteran's ongoing treatment from January 2003 to March 2005, provide an opinion linking the veteran's current skin condition to a disease or herbicide exposure in service. VA outpatient treatment records reflect the veteran complained of and was treated for skin problems in both hands and both feet. A dermatology consult in January 2005 reported the veteran's history of a rash on his hands and feet for many decades. He was assessed with eczematized dermatitis of both feet and the examiner also noted the veteran's private medical records reflected treatment for both hands and feet dermatitis. In April 2005 the veteran was assessed with hand dermatitis and was later assessed with eczema on both hands and both feet in October 2005 and May 2006. In a January 2006 hearing before the RO, the veteran testified that he was treated for a skin condition in service while serving on the U.S.S. Intrepid. He testified that the doctor said he had some sort of dermatitis or skin condition for which he was given a topical cream. The veteran stated he was treated from about April or May until the end of his tour of duty in October 1968. He also stated that he sought treatment for this condition shortly following separation from service at Morton Plant Hospital in November 1968 and later sought treatment at the VA in January 1969 to 1970, 1971 and 1978. He further testified that in early 2002 a private physician thought, given the veteran's background, that his skin condition might be from Vietnam but she could not say for sure. This opinion was never documented. The veteran submitted letters from a VA outpatient treatment clinic and hospital dated January 1969, February 1969 and April 1971. Though these letters indicate the veteran was treated at the VA at this time, there is no indication of the type of treatment that was provided or the conditions which were treated. Although the January 1969 letter states the veteran applied for treatment of a foot condition and intestinal disorder, such corresponds to the veteran's January 1969 claim for compensation for his plantar warts. Upon consideration of the record, the Board finds that the preponderance of the evidence is against the claim for service connection for a skin condition of both hands and both feet. Although the veteran claims he was treated for a skin condition in service and within a month after separation from service, the evidence of record reflects no findings of skin condition in service, and there is no evidence of such for many years thereafter. The veteran has made numerous contentions such as being treated in service from April to May 1968 until his discharge in October 1968, and being hospitalized for three days in November 1968 for the rash. However, the Board finds such contentions are not supported by the evidence of record. In this regard, the veteran's skin and feet were normal at his separation examination in October 1968, during the time period he contends the condition was active. The examination did note a small scar on the finger, indicating that his hands were definitely examined. He also contends that he was hospitalized for treatment of his rash shortly after discharge, and submitted a VA denial letter of fee basis payment for that hospitalization as proof of such treatment. However, the hospital summary from that hospitalization reveals no complaints or findings of a skin disorder. Rather, he was treated for abdominal pain and a fever. Moreover, upon his initial claim for benefits in January 1969, the veteran did not mention a skin rash of the hands and feet. Instead, he filed a claim for plantar warts. The Board finds it highly unlikely that the veteran would claim plantar warts, but not mention a skin rash of the hands and feet for which he was allegedly treated during the last 5 months of service, and allegedly hospitalized for during three days in November 1968. In addition, the April 1969 VA examination report reflects no complaints of a skin rash other than planter warts. In sum, the veteran's present recollections of the events in serve and shortly thereafter are simply not supported by the contemporaneous evidence of record and are not credible. See Madden v. Gober, 123 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Finally, there is no competent medical evidence of record that indicates the veteran's current skin condition of both hands and both feet is related to his military service, to include herbicide exposure. While his private physician noted the veteran's report that the condition began during service, such statement is a mere recitation of a history provided by the veteran, without any additional medical opinion as to etiology being provided. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber is a medical professional). Moreover, such statements are based on the veteran's reported history which has been determined to be unreliable. As such, any medical opinions based upon that history do not constitute competent medical evidence. Thus, in the absence of a chronic disorder in service or competent evidence linking the disorder to an incident of service, service connection must be denied. The evidence is not in relative equipoise. Thus, the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a skin disorder of both hands and feet is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs