Citation Nr: 1007641 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 08-06 550 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a skin disorder, to include a rash on the face, hands and feet. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from June 1982 to January 1984. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from an August 2006 rating decision, by the Waco, Texas, Regional Office (RO), which denied the Veteran's attempt to reopen his claim of entitlement to service connection for a rash on the face, hands and feet. He perfected a timely appeal to that decision. In his substantive appeal (VA Form 9), dated in February 2008, the Veteran requested a Travel Board hearing. However, in an April 2008 statement, the Veteran withdrew his hearing request. In June 2009, the Board reopened the Veteran's claim and remanded the issue of entitlement to service connection for a skin disorder to the RO for additional development. FINDING OF FACT A chronic skin disorder, including a rash on the face, hands and feet, was not manifest in service and is not otherwise related to service. CONCLUSION OF LAW A chronic skin disorder, to include a rash on the face, hands and feet, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in an SOC or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of letters dated in November 2005 and May 2006 from the RO to the Veteran, which were issued prior to the RO decision in August 2006. Those letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. The Veteran has been afforded VA examinations on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations afforded the Veteran are adequate. Nieves- Rodriguez v. Peake, 22 Vet. App 295 (2008). The examinations were conducted by medical professionals, who reviewed the medical records, solicited history from the Veteran and examined the Veteran. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual Background The Veteran entered active duty in June 1982; the enlistment examination, conducted in October 1981, was negative for any skin diseases. The service treatment reports (STRs) show that the Veteran was seen in July 1983 with complaints of swelling and itching of his eyes; he reported noticing those symptoms while working in the field around sand blasting on the job for the past 7 weeks. The pertinent diagnosis was allergic conjunctivitis. He was seen in October 1983 with complaints of a blister on the fifth toe of his left foot. The assessment was blister secondary to friction. On the occasion of an examination in October 1983, the Veteran did not report any history of skin disease; clinical evaluation of the skin was normal. There is no report of medical examination at discharge. The record shows the Veteran signed a statement of option in January 1983 stating he did not desire to undergo a separation medical examination. His medical records were reviewed and a determination was made that medical examination for separation was not required. Reserve records show that in June 1988, the Veteran was seen with complaints of a rash on his face for the past 3 days; the assessment was rash/dermatitis. He was also diagnosed with folliculitis vs. heat rash. Later in the same month, he was diagnosed with possible contact dermatitis. Thereafter, treatment records from the Family Practice Center, dated from August 1989 to September 1991, show that the Veteran received ongoing treatment for a skin condition. The Veteran was seen in August 1989 for complaints of sores on his hands and left foot. The assessment was tinea (questionable rubrum). The Veteran presented at the clinic in September 1991 with exacerbation of the same rash for which he was seen in 1989; following an evaluation, the assessment was probable tinea pedis and probable mild dyshydrosis eczema of the palms and feet. The Veteran was afforded a VA examination in September 2003. At that time, he complained of a rash on his palm, feet, hands, fingers and face, worse in winter. He also complained of a burning on his face, with swelling around the eyes. On examination, it was noted that he had a rash over 40 percent of his body, mostly his hands and fingers. The diagnosis was dermatophytosis. The examiner noted that the Veteran was treated for folliculitis and heat rash in service, but the separation examination noted findings of a normal skin. The examiner stated that it is less likely than not that the skin rash complaints in service were early manifestations of current skin conditions. Received in July 2005 were private treatment reports. Among those reports was a statement from Dr. H.S. Huang, dated in May 2005, indicating that the cause of constant burning feeling all over the body and rashes has remained unclear at this time; he also stated that he did not believe that the Veteran had peripheral neuropathy. In addition, records from a nerve conduction study reported no evidence of a lower motor neuron lesion. Also received was a copy of a prescription from Dr. Jennifer Smith, dated in June 2005, for an ointment for the Veteran's hands and feet. During a clinical visit in November 2007, the Veteran indicated that he stopped taking griseofulvin, but he still had a rash; stated that he would resume the medicine. No pertinent diagnosis was noted. Subsequently, during an orthopedic consultation, in February 2008, the Veteran indicated that he had tried creams in the past, but he developed a skin irritation. On the occasion of a VA examination in August 2008, the Veteran indicated that he had a rash on his face, hands and feet for which he was prescribed griseofulvin in the past with good relief. On examination, it was noted that his skin was normal. The diagnosis was skin rash in remission. During a clinical visit in November 2008, the Veteran requested consultation with a dermatologist for generalized rash. No clinical findings or diagnoses were reported. The Veteran was afforded another VA examination in September 2009. At that time, he reported having a skin rash ever since he got out of military service. The Veteran described the rash as intermittent, lasting about 2 to 3 months when it occurred, and clearing up spontaneously. The Veteran reported that he uses a topical cream on his hands and feet with improvement. He complained of itching and burning on his face with many little non-swollen papules. He also reported have multiple small papules which become vesicles and rupture, leaving tiny scales on the palms of the hands and the soles of his feet. The Veteran indicated that the rash also comes over his knees and elbows. Examination of the skin revealed a rash around the eyes which cleared with medication, and multiple tiny discrete papules over the face, which was still present over 3 percent of total body surface and 21 percent of exposed skin. The examiner also noted dyshydrosis related rash on the soles of the feet and on the hands. The pertinent diagnoses were seborrheic dermatitis, not present now; and dyshydrosis hands and feet, active, underlying atrophy. The examiner explained that the skin condition occurred twice in the military, in 1983 and 1988 in the eyes and face respectively and not elsewhere on the body, was acute, and resolved completely. It was diagnosed as either heat rash or folliculitis. The examiner further explained that seborrheic dermatitis is a chronic condition, and it was not present in service. The examiner thus concluded that the Veteran's current facial skin condition was less likely than not related to military service, as it was not present during service. The examiner observed that the dyshydrosis of the hands and feet was also not present in service, and concluded that the dyshydrosis of the hands and feet was thus, also, not related to military service. III. Legal Analysis Service connection may be awarded for a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1131. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009). For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2009). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). When, after 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. "Reasonable doubt" is one which exists because of an approximate balance of positive and negative evidence that 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. The Board has carefully considered the foregoing, and finds that for reasons that follow, the preponderance of the evidence is against the claim of entitlement to service connection for a skin disorder. In this regard, the Board notes that while the Veteran was treated for a rash of the face in service, there is no indication that the Veteran had a chronic skin condition. Moreover, no medical professional has provided competent medical evidence linking any skin condition to any aspect of the Veteran's service. Rather, the September 2003 VA examiner stated that it is less likely than not that the skin rash complaints in service were early manifestations of current skin conditions. Moreover, following a review of the claims folder and examination of the Veteran, the September 2009 VA examiner concluded that the Veteran's current facial skin condition was less likely than not related to military service, and the Veteran's dyshydrosis of the hands and feet was not present in service and, thus, is not related to military service. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service or to a service connected disability. While the evidence of record shows that the Veteran has a skin disability, the Board finds that the more probative evidence shows that the Veteran's current skin disability is not attributable to service. The Board does not doubt that the Veteran sincerely believes that his skin disorder may be related to his period of active duty; however, there is no indication that he has the requisite knowledge of medical principles which would permit him to render an opinion regarding matters involving medical diagnosis or medical etiology. Although lay statements may be competent to support a claim as to lay-observable events or lay-observable disability or symptoms; the determination as to causation and nexus in this case requires sophisticated, professional opinion evidence and, as noted above, there is no such medical opinion in his favor. See Jandreau v. Nicholson; Buchanan v. Nicholson, both supra. Here, we find the Veteran's claim that his skin disability is attributable to service to be less credible than the service medical records, the September 2003 and the September 2009 examiners who opined that it was less likely as not that any skin disability shown was related to service. Therefore, the Board finds that the Veteran's skin disorder has not been attributed by competent evidence to his active military service. For these reasons and bases, the Board finds that the preponderance of the evidence is against his claim, so the benefit-of-the-doubt rule does not apply, and his claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See Gilbert, supra. ORDER Entitlement to service connection for a skin disorder, to include a rash on the hands, face and feet, is denied. ____________________________________________ L.J. BAKKE-SHAW Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs