Citation Nr: 0814326 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 04-30 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a skin rash on the upper torso. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The veteran had active service from July 1974 to October 1979 and additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied, in pertinent part, the veteran's claims of service connection for bilateral hearing loss, a skin rash on the upper torso, and for a right knee disability. The veteran disagreed with this decision in October 2003. He perfected a timely appeal in August 2004 and requested a Travel Board hearing. In September 2004, the veteran withdrew his Travel Board hearing request and requested a videoconference Board hearing which was held before the undersigned in March 2008. In an April 2005 rating decision, the RO granted the veteran's service connection claim for bilateral hearing loss, assigning a zero percent rating effective July 9, 2002. There is no subsequent correspondence from the veteran expressing disagreement with the rating or effective date assigned. Accordingly an issue relating to bilateral hearing loss is no longer in appellate status. See Grantham v. Brown, 114 F .3d 1156 (1997). The issue of entitlement to service connection for a right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran incurred a skin rash on the upper torso during active service. CONCLUSION OF LAW Service connection for a skin rash on the upper torso is granted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a July 2002 letter, VA notified the veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter informed the veteran to submit medical evidence, statements from persons who knew the veteran and had knowledge of his skin rash during service, and noted other types of evidence the veteran could submit in support of his claim. The veteran was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has substantially satisfied the requirement that the veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service- connection claim was provided in February 2005 and in March 2006, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, the Board finds that VA met its duty to notify the veteran of his rights and responsibilities under the VCAA. With respect to the timing of the notice, the Board points out that the Veterans Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the July 2002 letter was issued to the veteran and his service representative prior to the November 2002 rating decision which denied the benefits sought on appeal; thus, this notice was timely. Since the veteran's claim of service connection for a skin rash on the upper torso is being granted in this decision, any question as to the appropriate disability rating or effective date is moot and there can be no failure to notify the veteran. See Dingess, 19 Vet. App. at 473. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the veteran's claims file; the veteran does not contend otherwise. In summary, the Board finds that VA has done everything reasonably possible to notify and to assist the veteran and no further action is necessary to meet the requirements of the VCAA. The veteran contends that he incurred a rash on the upper torso during active service. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a 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 present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. A review of the veteran's service medical records from his period of active service indicates that, at his enlistment physical examination in June 1974, the veteran denied any relevant medical history. Clinical evaluation was completely normal except for a left hand scar. In August 1974, the veteran complained of a tinea type rash over the upper torso. Objective examination showed a "Herald patch" on the back and oval lesions consistent with peripheral scabs on the trunk. The impression was pityriosis rosea. In December 1974, the veteran complained of a rash on his neck. Physical examination showed macular plaques and an area of depigmentation in the cervical area. In August 1975, the veteran complained of a rash. Physical examination showed a rash on his chest and back of papular appearance and without itching. The diagnosis was tinea versicolor. In May 1976, the veteran complained of a rash on the upper thorax. The impression was urticaria. On periodic physical examination in November 1976, clinical evaluation of the veteran's skin was negative. At his separation physical examination at the end of his active service in August 1979, the veteran denied any relevant medical history. Clinical evaluation was completely normal except for a left hand scar. A review of the veteran's service medical records from his period of Air Force Reserve service shows that he denied any medical history when he enlisted in the Air Force Reserve in June 1981. Clinical evaluation was completely normal. In August 1990, the veteran complained of a non-pruritic rash. Objective examination showed tinea versicolor of the shoulders and chest. The assessment was tinea versicolor. In May 1991, the veteran complained of a rash on his chest. Objective examination showed tinea versicolor on the chest. The assessment included tinea versicolor. The veteran's history and clinical evaluation were unchanged from July 1989 on periodic physical examinations in April 1993 and in April 1998. The veteran testified credibly in March 2008 that he continued to experience recurrent skin rashes on the upper torso since separating from Air Force Reserve service in 2001. The Board finds that the preponderance of the evidence supports service connection for a skin rash of the upper torso. The service medical records from the veteran's active service show in-service treatment for a skin rash on the upper torso. The veteran continued to receive treatment for a skin rash on the upper torso while in the Air Force Reserve. The Board acknowledges that the veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). In this regard, the veteran testified credibly at his March 2008 Travel Board hearing that he experienced recurrent skin rash on his upper torso since service separation. Thus, and after resolving any reasonable doubt in the veteran's favor, the Board finds that service connection for a skin rash on the upper torso is warranted. ORDER Service connection for a skin rash on the upper torso is granted. REMAND The veteran testified credibly at his March 2008 Travel Board hearing that he had experienced right knee disability since service separation. The veteran's service medical records show that he experienced a torn medial meniscus and torn cartilage in the right knee while on active service. The veteran also had right knee surgery for a torn ligament on February 13, 1987. In a March 1987 letter included in the veteran's Air Force Reserve medical records, M.E.F, M.D. (Dr. M.E.F.), stated that he had seen the veteran in September 1986 and the impression was medial collateral ligament strain. A September 1986 magnetic resonance imaging (MRI) scan of the right knee showed a bucket handle tear of the right medial meniscus. The veteran's right knee had a normal range of motion and function on subsequent physical examination in July 1989. To date, however, the veteran has not been provided a VA examination to address the contended causal relationship between his right knee disability and active service. Thus, on remand, the veteran should be afforded VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). The RO also should obtain the veteran's up-to-date VA and private treatment records. Accordingly, the case is REMANDED for the following action: 1. Ask the veteran to identify all VA and non-VA clinicians who have evaluated or treated him for a right knee disability since his separation from service. Obtain outstanding VA treatment records that have not already been associated with the claims file. Once signed releases are received from the veteran, obtain outstanding private treatment records that have not already been associated with the claims file. A copy of any negative response(s) should be included in the claims file. 2. Schedule the veteran for VA examination(s) in order to determine whether his right knee disability is related to active service. The claims folder must be made available to the examiner(s) for review. Based on the examination and review of the record, the examiner(s) should express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current right knee disability was incurred during active service or is related to an incident of service, to include whether he has any residuals of the in-service surgery for a torn ligament. 3. After completion of the foregoing, readjudicate the claim of entitlement to service connection for a right knee disability. If the benefit sought on appeal remains denied, the veteran should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs