Citation Nr: 0815121 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 07-23 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a skin condition. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Chris Yegen, Associate Counsel INTRODUCTION The veteran served on active duty from September 1947 to August 1951. This appeal to the Board of Veterans' Appeals (Board) is from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In January 2008, to support his claims, the veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) of the Board using video-conferencing technology. The Board points out that the veteran did not include his claim of entitlement to service connection for tinnitus in his substantive appeal (VA Form 9) in July 2007. So that claim is not before the Board. 38 C.F.R. § 20.200 (2007). To further develop the claim of entitlement to service connection for bilateral hearing loss, the Board is remanding this claim the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The RO's attempts to obtain additional service medical and personnel records from September 1947 to August 1951 were unsuccessful. However, attempts to obtain morning/sick reports did locate two records concerning treatment for a rash during service. 2. A February 1951 morning report appears to show the veteran had a rash that, by his own admission, was acute and transitory and which resolved with treatment prior to the conclusion of his service six months later. 3. The medical evidence, including that submitted during his recent hearing, does not attribute any current skin disorder to the veteran's military service. CONCLUSION OF LAW The veteran's skin condition was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist VA has complied with the duty-to-notify provisions of the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 197 (2002). In particular, a letter from the RO in May 2006 (1) informed the veteran of the information and evidence not of record that was necessary to substantiate his claim; (2) informed him of the information and evidence that VA would obtain and assist him in obtaining; (3) informed him of the information and evidence he was expected to provide; and (4) requested that he provide any evidence in his possession pertaining to his claim, or something to the effect that he should "give us everything you've got pertaining to your claim." Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). VA also has complied with the Court's holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), which states that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The RO complied with the requirements in Dingess when it sent a VCAA notice letter in May 2006 discussing the downstream disability rating and effective date elements of the claim. And since providing that additional notice, there has been no reason for the RO to go back and readjudicate the claim, such as in a supplemental statement of the case (SSOC), because the only additional evidence submitted in response - during the January 2008 hearing, the veteran waived his right to have the RO initially consider. 38 C.F.R. §§ 19.31, 20.800, 20.1304(c). Cf. Medrano v. Nicholson, 21 Vet. App. 165, 173 (2007). This is important to point out because the Federal Circuit Court recently held that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, 07-7130 (Fed. Cir. September 17, 2007) (Mayfield IV). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Even if arguably there is any deficiency in the notice to the veteran or the timing of the notice it is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board had erred by relying on various post- decisional documents for concluding that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, but determining nonetheless that the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, so found the error was harmless). If there was any deficiency in the notice to the veteran, the Board finds that the presumption of prejudice on VA's part has been rebutted: (1) based on the communications sent to him over the course of this appeal, and his responses, he clearly has actual knowledge of the evidence he is required to submit and needed to substantiate his claim; and (2) based on his contentions he is reasonably expected to understand from the notices what was needed. See Sanders v. Nicholson, 487 F.3d 881 (2007). VA also fulfilled its duty to assist by obtaining all relevant evidence concerning the claims under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. The RO obtained all available medical records identified by the veteran and his representative. The RO attempted to obtain his service and personnel records, but as mentioned they were missing - except for the report of his separation examination in July 1951. To compensate, the RO also obtained two morning reports from February 1951 regarding treatment for a probable rash during service. Unfortunately, the National Personnel Records Center (NPRC), a military records repository, has indicated that most of the veteran's service medical records (SMRs) were destroyed in a 1973 fire. When a veteran's SMRs are unavailable, through no fault of his, VA's duty to assist, duty to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule is heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). Consider also, however, that the absence of some of the veteran's service medical records does not obviate the need for him to have medical nexus evidence linking any currently diagnosed skin condition to his military service. See Russo v. Brown, 9 Vet. App. 46 (1996). Cf. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999). That is to say, there is no reverse presumption for granting the claim. Concerning this required medical nexus evidence, VA has a duty to provide a medical examination and/or seek a medical opinion when such examination or opinion is necessary to make a decision on the claim. VA considers an examination or opinion necessary to make a decision on the claim if the evidence of record (1) contains competent evidence that the claimant has a disability, or persistent recurring symptoms of disability; (2) indicates the disability or symptoms may be associated with his military service; and (3) contains insufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, though, although the evidence shows the veteran probably had a skin condition during service, it was even by his own admission merely acute and transitory (i.e., temporary as opposed to chronic), as it resolved with treatment prior to his discharge. In addition, the only evidence suggesting an etiological link between this claimed condition and his military service is his unsubstantiated lay allegations. These statements are insufficient to trigger VA's duty to provide an examination; VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004). Accordingly, the Board finds that no further assistance is needed to meet the requirements of the VCAA or Court. II. Whether the Veteran is Entitled to Service Connection for a Skin Condition The veteran claims that his current skin condition is a result of his service in the Korean Conflict. During his January 2008 video conference hearing, he contended that his lentigo maligna (now diagnosed as basal cell carcinoma) was a result of his military service and he requested an examination to determine whether there is an etiological link between the rash noted in service and this current disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence 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). As noted, the NPRC in June 2006 indicated that most of the veteran's SMRs were destroyed in a 1973 fire. When a veteran's SMRs are unavailable, through no fault of his, VA's duty to assist, duty to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule is heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). This, however, does not lower the threshold for an allowance of a claim, for example, where the evidence almost but not quite reaches the positive-negative balance. In other words, the legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). A February 1951 morning report appears to show the veteran had a rash while in the military, which he had incurred in the line of duty. During his January 2008 videoconference hearing, he testified that he went to sick call for a rash on his arm in January 1951, and that a doctor treated him with salve. The veteran said that, several days later, the rash had spread up his arm and across his back. He had several open sores, some of which became scars. Another morning report corroborates his hearing testimony, showing he was on sick call for 18 days, presumably for this rash. More importantly, though, in other testimony during his hearing, he conceded that he had no further complaints, treatment for or diagnosis of any other skin problems in service. In this regard, the report of his military separation examination, which thankfully is available for consideration, indicates his skin was asymptomatic in July 1951 (only six months later). If, as here, there is no evidence of a chronic condition during service, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Id. A pathology report in December 2005 by a private physician, Dr. H.B., shows a nevus was removed from the veteran's diaphragm. Based on the biopsy, this doctor diagnosed lentigo maligna - indicating it occurred in sun-damaged skin. This doctor, however, not only declined to link this condition to the veteran's military service, but also provided a plausible alternative explanation for the veteran's current skin condition - ultraviolet light from the sun. A more recent pathology report in August 2007 by another private physician, Dr. J.P.F., found fragments of actinic keratosis exhibiting basaloid and squamoid differentiation. This physician diagnosed actinic keratosis with prominent scale/crust and basal cell carcinoma, metatypical with infiltrating features. A pathology report in September 2007 noted seborrheic keratosis (benign tumors) with associated melanoderma (increase in pigmentation of the skin). The evaluating dermatopathologist indicated this melanoderma had possibly resulted from post-inflammatory pigment incontinence. So there is no disputing the veteran has a current skin condition. He has a confirmed diagnosis, thus, the determinative issue is whether his current skin condition is somehow attributable to his military service, and in particular to the rash he had during service. Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Unfortunately, though, as mentioned, the record shows that the rash the veteran had during service, even by his own admission, was acute and transitory and resolved with treatment prior to the conclusion of his service six months later. He acknowledged during his January 2008 videoconference hearing that he had not experienced any skin problems until recently, in December 2005, indicating one of his doctors had attributed this condition to exposure to ultraviolet light from the sun. Consequently, no physician or other competent clinician has linked this condition to the veteran's military service - including, again, to the rash he had in service. Indeed, his earliest diagnosis of a skin condition, post service, was 54 years after his separation from the military. This lapse of so many years between his separation from active duty and the first diagnosis of a skin condition after service provides highly probative evidence against his claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Although the veteran is competent to report symptoms of what he believes is a current skin condition, he is not competent to etiologically link his current skin condition to his military service, including to the rash he had in service. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). See also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). For these reasons and bases, the preponderance of the evidence is unfavorable, in turn meaning the benefit-of-the- doubt doctrine does not apply and the Board must deny the claim. 38 C.F.R. § 3.102. ORDER The claim for service connection for a skin condition is denied. REMAND The record shows that a private audiologist, K.G.S., conducted a hearing evaluation and determined the veteran has bilateral sensorineural hearing loss above 2000 Hertz. This audiologist noted the veteran's claimed injury in service, as well as his current problems communicating during regular conversations. This audiologist also explained that the veteran could benefit from hearing aids and that he should qualify for their use as a person with hearing loss. During his video conference hearing, the veteran maintained this was a positive nexus opinion linking his bilateral hearing loss to his military service. But his account of what this audiologist purportedly said, filtered as it is through a lay person's sensibilities, is not competent medical evidence. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). See also LeShore v. Brown, 8 Vet. App. 406, 409 (1995). While noting the veteran's reported history of noise exposure, this audiologist did not then actually etiologically link the current hearing loss to that acoustic trauma, even assuming it occurred. So medical comment is needed concerning this. The veteran believes he sustained acoustic trauma due to his military occupational specialty (MOS) as an ordinance reclamation and classification in motor maintenance. In this capacity, he explained that he was a tank mechanic for about two years and had no ear protection. Based on his notice of disagreement (NOD) and videoconference hearing testimony, he also contends that a booby trapped tank exploded nearby which caused bilateral hearing loss for several days, greater in his left ear than in his right ear. The Board sees the hearing loss is worse in his left ear than in his right ear. However, he also indicated that his hearing returned to normal even before his discharge from service. Nevertheless, based on his MOS, the Board concedes noise exposure in service. That notwithstanding, the veteran's service medical records make no reference to any diagnosis of or treatment for any hearing problems during service. Indeed, his separation examination in July 1951 notes that he scored 15/15 on the whisper test. As noted, the NPRC in June 2006 indicated that most of the veteran's SMRs were destroyed in a 1973 fire. When a veteran's SMRs are unavailable, through no fault of his, VA's duty to assist, duty to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule is heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). This, however, does not lower the threshold for an allowance of a claim, for example, where the evidence almost but not quite reaches the positive-negative balance. In other words, the legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). The evidence outlined above is sufficient to trigger VA's duty to obtain a medical opinion on the question of whether the veteran has bilateral hearing loss sufficient to satisfy the requirements of 38 C.F.R. § 3.385, as a result of his military service - and, in particular, noise exposure. See 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, this claim for bilateral hearing loss is REMANDED for the following development and consideration: 1. Schedule the veteran for a VA examination. Have the designated examiner review the claims file for the pertinent medical and other history, including a complete copy of this remand and the January 2007 statement from the audiologist, K.G.S. Following the examination and review of the claims file, the examiner should determine the severity of the veteran's bilateral hearing loss in terms of whether it meets the requirements of 38 C.F.R. § 3.385 to be considered a disability by VA standards. If it does, the examiner should then provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that this current bilateral hearing loss is attributable to any noise exposure, i.e., acoustic trauma, the veteran may have experienced during his military service in the manner alleged. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable. 2. Then readjudicate the claim for service connection for bilateral hearing loss in light of the additional evidence. If this claim is not granted to the veteran's satisfaction, send him and his representative a Supplemental Statement of the Case and give them time to respond to it before returning the file to the Board for further appellate consideration. The purpose of this REMAND is to obtain additional development. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran has the right to submit additional evidence and argument concerning the claim 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 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. 2005). ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007). Department of Veterans Affairs