Citation Nr: 1004459 Decision Date: 01/29/10 Archive Date: 02/16/10 DOCKET NO. 07-36 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a skin condition. 2. Entitlement to service connection for an eye disorder (claimed as partial blindness in one eye), to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Heather M. Gogola, Associate Counsel INTRODUCTION The veteran served on active duty from January 1960 to October 1962, and from January 1963 to March 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. FINDINGS OF FACT 1. The veteran has a skin disorder, characterized as palmar plantar keratoma, related to his active service. 2. The veteran's current eye disorders including early nuclear sclerotic cataracts, corneal epithelial basement membrane disease, and mixed refractive error with astigmatism were not related to the veteran's service connected diabetes mellitus, or to any other incidence of service. Refractive errors of the eye are not a disability for which VA compensation is paid. CONCLUSIONS OF LAW 1. A skin disorder was incurred in active service. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). 2. An eye disorder was not incurred in, or aggravated during active service, nor is it proximately due to, or the result of, a service connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353- 23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). 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 evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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; and (3) that the claimant is expected to provide. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the October 2005, prior to the date of the issuance of the appealed rating decision. The Board further notes that, in a January 2007 letter, the Veteran was notified that a disability rating and an effective date for the award of benefits are assigned in cases where service connection is warranted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorder described by the Veteran. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Analysis The veteran contends that his skin disorder is related to his active service. Specifically, he contends that he has had a fungus-like skin disorder since returning from his active service in Vietnam. The veteran also asserts that he has reduced vision as a result of his service-connected diabetes mellitus. Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with military service, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Secondary service connection shall be awarded when a disability "is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See 71 Fed. Reg. 52744-52747 (Sept. 7, 2006) (to be codified at 38 C.F.R. § 3.310(b)); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Reiber v. Brown, 7 Vet. App. 513, 515-16 (1995); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995) for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service- connected disability. See 71 Fed. Reg. 52744 (2006). The amendment essentially codifies Allen with language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). 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. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Service treatment records are silent as to any complaints of or treatment for any skin disorders, but did indicate that the veteran had refractive eye error and astigmatism for which he wore glasses. Examination upon enlistment dated January 1960 indicated normal skin and normal eyes. A periodic examination dated October 1962 similarly noted normal skin, but did indicate that the veteran had astigmatism. On his report of medical history at separation from service, dated March 1966, the veteran complained of eye trouble. However, an examination of the same dated indicated normal skin and normal eyes. Post service treatment records reflected complaints of and treatment for a skin condition. An August 2001 private treatment record noted that the veteran had a fungus on the palms of his hands that is worse in the summer but better in the winter. The veteran submitted private treatment records from W.W.B., M.D., dated August 2001 to March 2003. An August 2001 record indicated complaints of fungus/jungle rot on the veteran's hands as well as occasional blurred vision. A June 2002 record showed some vitiligo appearing changes on the knuckles. The physician provided a diagnosis of vitiligo. VA treatment records dated April 2004 to November 2006 reflected treatment for a rash on the hands. An April 2004 new patient physical noted that the veteran complained of a rash on his arms, hands and legs since Vietnam that comes and goes. A June 2004 optometry consultation indicated that the veteran's diabetic fundoscopic eye exam was normal. A July 2006 dermatology note indicated that the veteran had a history of a scaling disorder on the palms of both hands since the 1960s. Examination showed keratoses of the palmar aspects of both hands. Examination of the feet showed moccasin distribution of scale with interdigital scaling and subungual hyperkeratosis and discoloration. A diagnosis of palmar plantar dermatophytosis with onychomycosis was provided. Subsequent records reflected treatment for scaly lesions on the veteran's hands. A March 2007 dermatology record noted that the veteran's palms showed a small amount of hyperkeratosis and discoloration. An assessment of palmar plantar keratoderma with possible psoriasis was provided. March 2007 pathology report indicated a diagnosis of parakeratotic skin with spongiosis with psoriasiform epidermal hyperplasia and chronic inflammation. A May 2007 ophthalmology consultation noted no evidence of diabetic retinopathy. An August 2007 follow-up dermatology note revealed a diagnosis of palmar plantar keratoderma. The dermatologist noted that the veteran had at least a 40 year history of the same problem. The veteran was afforded a VA examination of the skin in July 2007. The veteran stated that he first noticed the rash on his right hand while he was in Vietnam, and has been progressive and constant since its onset. The veteran stated that the rash mostly affects the palms of his hands, but also affected his arms and legs. After examination and review of the claims file, the examiner provided a diagnosis of palmar plantar dermatophytosis with onychomycosis. The examiner opined that it was less likely than not that the current skin condition had its onset while serving in Vietnam because there was no evidence of a skin condition in the service medical records or private records collected shortly after discharge. The veteran was afforded a VA eye examination in September 2007. The veteran stated that his left eye seemed out of focus over the past several weeks, but had no complaints involving the right eye. Examination showed no ptopsis or proptosis and extraocular motility was full. Visual fields were full and intact to confrontation in each eye. The examiner provided diagnoses of diabetes mellitus without any background diabetic retinopathy in either eye; early nuclear sclerotic cataracts in each eye unrelated to diabetes; corneal epithelial basement membrane disease in each eye; and mixed refractive error with astigmatism in each eye. A February 2008 Informal Hearing Report from a Decision Review Officer (DRO) indicated that the veteran's current contention was that his skin condition was incurred while he was on active duty in Vietnam and that he had the condition since his release from active duty. The veteran also asserted that his eye disability was related to his diabetes mellitus. The veteran was also afforded a hearing before the undersigned Veterans Law Judge in December 2009. At the hearing the veteran testified that he initially noticed his skin condition affecting his hands within a couple of months after his discharge from active service. The veteran did not initially seek medical treatment because he thought the condition would resolve itself; instead he just self-treated his hands with over the counter ointments. The condition persisted for years and eventually spread to other parts of his body, including the shoulders and legs. The veteran also stated that while he was scheduled for a VA eye examination in 2008, he missed the examination because he did not receive the notification of the examination. Finally, the veteran submitted statements from his ex-wife, former co-worker, and a friend. The veteran's ex-wife stated that she was married to the veteran from 1959 to 1972 and that after his return from Vietnam, the veteran had a fungal condition on his hands that looked like chapped hands. The veteran's co-worker similarly stated that he knew the veteran since 1973 and noticed the fungal condition on his hands, giving the appearance of chapped hands. The veteran's friend similarly stated that the veteran had a fungal condition on his hands. The Board, in applying the benefit of the doubt doctrine finds that the veteran has submitted competent medical evidence showing that the skin disorder affecting his hands was related to his active service. While service treatment records were silent to any complaints of a skin condition during active service, the veteran submitted numerous statements from his ex-wife, current wife, co-workers and friends stating that they observed the veteran's skin condition. The veteran's ex-wife specifically stated that she was married to the veteran upon his return from active service, and that his skin condition, which looked like chapped hands, was present from that time. Post service treatment records reflected that the veteran consistently reported having a rash starting out on his hands following his service from Vietnam that occasionally spread to his arms and legs. A July 2006 VA physician indicated that the veteran had a history of a scaling disorder of the hands since the 1960s. An August 2007 VA treatment record indicated that the veteran had a 40 year history of the skin condition and provided a diagnosis of palmar plantar keratoderma. The Board notes that the July 2007 VA examiner opined that it was less likely than not that the current skin condition had its onset during the veteran's service in Vietnam because there was no evidence of a skin condition in the service treatment records or private records immediately following the veteran's discharge. However, the Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board. As noted above, while no diagnosis of a skin condition was documented until August 2001, the veteran as well as others, including his ex-wife, coworkers and friends, are competent to testify that they observed rashes on the veteran's hands, and body. Consequently, the Veteran is competent to contend that he had symptoms of a skin disorder immediately following service that continued until the first documented diagnosis in 2001. Thus for the above reasons, the Board finds his account of continual symptoms subsequent to service to be credible. Thus, as there is an approximate balance of positive and negative evidence regarding the merits of the veteran's claim that would give rise to a reasonable doubt in favor of the veteran, the benefit of the doubt rule is applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, service connection for a skin disorder is warranted. Regarding the veteran's claim for an eye disorder as secondary to his service-connected diabetes mellitus, based upon the foregoing, the comprehensive criteria for entitlement to service connection for an eye disorder are not met. There is sufficient evidence that the Veteran currently has diagnoses of early nuclear sclerotic cataracts in each eye, corneal epithelial basement membrane disease in each eye, and mixed refractive error and astigmatism in each eye. Unfortunately there is no objective medical evidence that the Veteran's eye disorders are related to his active service, nor are they related to his diabetes mellitus. Service treatment records show that the veteran wore glasses upon entrance into service, and during active service was diagnosed with astigmatism. Post service records are silent to any diagnoses of an eye disorder until the September 2007 VA examination. In fact, multiple diabetic eye examinations were normal, with no evidence of diabetic retinopathy. Finally, the September 2007 VA examiner stated that there was no evidence of any background diabetic retinopathy in either eye, and that the veteran's early nuclear sclerotic cataracts were unrelated to his diabetes. Finally, the Board notes that to the extent there is refractive error, this is not a disorder for which VA compensation benefits are paid. Accordingly, the evidence of record does not show that the Veteran's current eye disorder is due to his service- connected diabetes mellitus. As there is not an approximate balance of positive and negative evidence regarding the merits of the appellant's claim that would give rise to a reasonable doubt in favor of the appellant, the benefit of the doubt rule as to these issues is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for a skin condition is granted. Service connection for an eye disorder (claimed as partial blindness in one eye) is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs