Citation Nr: 1007663 Decision Date: 03/02/10 Archive Date: 03/11/10 DOCKET NO. 05-31 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a skin disorder. 2. Entitlement to service connection for inguinal muscle spasms. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Gielow, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1972 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The issue of entitlement to service connection for a skin disorder 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. FINDING OF FACT The Veteran does not currently have a disability related to inguinal muscle spasms that was incurred in or aggravated by active service. CONCLUSION OF LAW The criteria for entitlement to service connection for inguinal muscle spasms have not been met. 38 U.S.C.A. §§ 1131, 5103(a), 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist In correspondence dated in October 2004 and March 2006, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009) and 38 C.F.R. § 3.159(b) (2009). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. In March 2006, the RO also notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2008). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. In determining whether VA's duty to assist requires that a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, given the absence any identified symptomatology after service separation or any competent evidence demonstrating that the Veteran has current chronic disorder pertaining to inguinal muscle spasms that may be related to service, a remand for a VA examination would unduly delay resolution in this case. Thus, the duties to notify and assist have been met. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, to prove service connection, the record must contain: (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony of an in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). However, the law provides that service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Veteran contends that he is entitled to service connection for inguinal muscle spasms, citing the fact that he received treatment for inguinal muscle spasms in service. However, having carefully reviewed the evidence of record in light of the Veteran's contentions and the applicable law, the Board finds that his claim must nevertheless fail because a current disability has not been shown. At this time, the competent evidence does not demonstrate that the Veteran has a current disability related to inguinal muscle spasms. While service treatment records reflect that the Veteran was treated in November 1973 for inguinal pain, which was attributed to slight muscle spasms in the inguinal area, his separation examination revealed "normal" findings pertaining to both the musculoskeletal and genitourinary systems. Moreover, normal results were again noted in both his December 1979 and November 1982 reserve service retention examinations, and a review of post-service medical treatment records is absent of any complaints of, treatment for, or a diagnosis related to the inguinal area or reasonably attributed thereto. In fact, VA treatment records from July 2002 to March 2009 and private medical records from August 1998 through September 2004, which regularly noted that the Veteran suffered from muscle spasms in the back, did not mention any similar complaints or findings pertaining to the inguinal area. The Board has considered the Veteran's statements asserting a nexus between inguinal muscle spasms and active duty service and acknowledges that he is competent to report symptoms as they come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in this case, the Veteran merely indicated that his inguinal-related ailments "started in service," and he does not provide any description of what his current symptoms, if any, may be. The law provides that, in the absence of an identified disease or injury, service connection may not be granted. See Sanchez-Benitez v. West, 25 F.3d 1356 (Fed. Cir. 2001). Accordingly, as the Veteran's claimed inguinal spasms are without any identified underlying pathology, his claim for service connection must necessarily be denied because there is no sufficient showing he has a current disorder that is derived from an in-service disease or injury. As the weight of the evidence is against the Veteran's claim for service connection for inguinal muscle spasms, the Board is unable to grant the benefits sought. ORDER Service connection for inguinal muscle spasms is denied. REMAND Unfortunately, with regard to the Veteran's claim of entitlement to service connection for a skin disorder, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Specifically, the Board finds that a VA examination must be conducted in order to fulfill VA's duty to assist pursuant to the VCAA. Here, service treatment records reflect that the Veteran was treated for a rash in service in November 1972. According to the service treatment report, he complained of a rash on his back and stomach that had been present for several weeks; the impression rendered by the examining physician was "probably tinea." Further, the evidence reflects that the Veteran sought treatment for pruritis in April 2004, complaining of recurrent itching that had been present for years. As a result, he was prescribed oral medication in an attempt to alleviate the itching. Given the skin-related symptomatology demonstrated in service and the competent evidence of record suggestive of a current skin disorder, the Board finds that a VA medical examination is required to determine the nature and etiology of the Veteran's skin-related complaints. See McLendon, 20 Vet. App. at 79. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of the claim, of failing to so report. See 38 C.F.R. § 3.655 (2009). Moreover, as it appears that the Veteran continues to be treated at the VA Medical Center in Montgomery, Alabama, the RO should obtain all relevant treatment records from this facility. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC shall obtain all outpatient treatment records relating to a skin disorder from the VA Medical Center in Montgomery, Alabama, for the period from March 2009 to the present. Any negative search result should be noted in the record. 2. The RO/AMC shall schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's asserted skin disorder. The claims file should be made available to and reviewed by the examiner. If a current skin disorder is diagnosed, the examiner is requested to state an opinion as to whether it is at least as likely as not (a 50 percent probability or higher) that such disorder is causally related to active service, including the skin-related symptoms he demonstrated in service. All appropriate tests and studies should be conducted. In doing so, the examiner should acknowledge the Veteran's report of a continuity of symptomatology. A complete rationale for all opinions expressed and all conclusions reached should be set forth in a legible report. 3. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 4. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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. 2009). ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs