Citation Nr: 1034445 Decision Date: 09/13/10 Archive Date: 09/21/10 DOCKET NO. 07-29 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a skin rash disability of the feet, other than onychomycosis, claimed as residual to in- service cold weather injuries. 2. Entitlement to service connection for squamous cell carcinoma of the right cheek and the right side of the nose, claimed as due to exposure to mustard gas in service. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Jalley, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1943 to November 1945. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In March 2009, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. In April 2009, the Board remanded this case for additional development, and the case has been returned for further appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for squamous cell carcinoma of the right cheek and the right side of the nose and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran does not have a current skin rash disability of the feet other than onychomycosis that has been related to in-service cold weather exposure. CONCLUSION OF LAW A skin rash disability of the feet other than onychomycosis was not incurred in or aggravated by service, to include as due to cold weather exposure that occurred during his active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2009)). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate a claim, as well as the evidence VA will attempt to obtain and which evidence the veteran is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements, however, may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Dingess, supra; Pelegrini, supra. The Board finds that the notification requirements of VCAA have been satisfied in this case. In this regard, the Board notes evidentiary development letters dated in November 2004, March 2005, October 2005, December 2005, and July 2006 in which the RO advised the appellant of the evidence needed to substantiate his claim. These letters advised the Veteran of his and VA's responsibilities under VCAA, to include what evidence should be provided by him and what evidence should be provided by VA. The July 2006 letter further advised the Veteran as to the type of evidence needed to substantiate both the disability rating and effective date elements of his claim, pursuant to the Court's holding in Dingess, supra. The Board notes that the July 2006 letter was not issued prior to the initial adjudication of the Veteran's claim in April 2006. His claim, however, was subsequently readjudicated in a July 2007 statement of the case and a May 2010 supplemental statement of the case. In any event, because service connection is being denied, the Board finds that any deficiencies in the content or timeliness of this notice letter would not be prejudicial. The Board further finds that the duty to assist requirements of VCAA have also been satisfied in this case. 38 U.S.C.A. §§ 5103 and 5103A. Specifically, the Board finds that all obtainable evidence identified by the Veteran relative to the issue on appeal has been obtained and associated with the claims folder. In particular, the Board notes that the RO obtained the Veteran's service treatment records, available VA medical records, and private medical records. The Board notes that the Veteran had identified having received treatment at a Salem VA Medical Center in 1957 and 1958 and at the VA Medical Center in Durham beginning in January 1979. Formal Findings on the Unavailability of Federal Records were issued in December 2005 and January 2006 after extensive searches for the records at issue. It is noted, however, that the Veteran's claim is being denied on the basis of no current disability. The Salem medical records are clearly irrelevant to satisfying this requirement, as are many of the Durham records. To the extent that the Veteran has submitted current VA medical records and has undergone two VA examinations, the Board finds that there is ample evidence with respect to whether there is a skin rash disability other than onychomycosis on the Veteran's feet. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. In the case at hand, the Veteran underwent VA examinations in June 2007 and September 2009. The Board finds that these opinions are considered adequate for the purpose of determining the service connection claim decided herein. These reports reflect that the examiners reviewed the claims folder, including the medical records that were on file at the time of the examinations. During the examinations, the examiners elicited from the Veteran his history of complaints and symptoms and provided clinical findings detailing the examination results. The examiners also clearly noted their diagnoses. For these reasons, the Board concludes that the VA examination reports in this case provide an adequate basis for a decision. The evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection The Veteran has claimed entitlement to service connection for a skin rash of the feet, which he essentially contends is related to in-service cold weather exposure. As an initial matter, the Board notes service connection for residuals of frostbite to the left and right feet was granted by rating decision in May 2010. As explained in that rating decision, the RO's grant was based in large part on the results of a September 2009 VA examination report that found cold sensitivity, onychomycosis, and tingling paresthesia of the feet without clinical evidence of peripheral neuropathy and noted that these were known long-term complications of cold injury. In that same decision, the Veteran was assigned staged disability ratings under 38 C.F.R. § 4.104, Diagnostic Code 7122 (2009), which expressly includes nail abnormalities among its pertinent rating criteria. It is therefore clear from the text of that decision that the Veteran's onychomycosis has been found to be a residual of his in-service cold weather injuries and that such disability is already being compensated under Diagnostic Code 7122 as a residual of his frostbite. Therefore, the Board finds that the issue that now remains on appeal is whether there is a skin rash disability other than onychomycosis that is related to the Veteran's military service. In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the case at hand, the Board finds that service connection for a skin rash of the feet must be denied based on the lack of a current disability other than onychomycosis. This decision is based upon a review of the Veteran's medical records, VA examination reports from June 2007 and September 2009, and the Veteran's own statements. The June 2007 VA examination report notes that the Veteran reported having had fungal infections of the toes over the years and some onychomycosis. Other than onychomycosis, the only pertinent abnormality noted on examination was that the Veteran has no hair on his feet. The only diagnosis that was made, however, was of "Cold injury to the hands, feet, and tips of ears by history, and not verified by examination of the record." Other than onychomycosis, the September 2009 VA examination report did not diagnose a skin rash disability of the feet. This report noted there were no complaints of recurrent fungal infections. Skin examination revealed no scaly skin lesions or tinea pedis condition. Skin texture and thickness were normal, and there was no edema or ulceration. Other than bilateral onychomycosis of the toenails of the great toes and second and third toes, the examiner did not diagnose any skin rash disability of the feet. With respect to other medical records, a September 2004 VA medical record notes thickened yellow toenails consistent with a fungal infection. No underlying bacterial infection was seen. Onychomycosis was diagnosed. Finally, statements made by the Veteran himself do not indicate the presence of a skin rash disability of the feet other than onychomycosis. When asked about his feet at his March 2009 Board hearing, the Veteran testified that he has trouble with ingrown toenails. He reported his big toenails are discolored and appear to have an infection. He was asked if these were the symptoms he was describing when he reported that he has a rash on his feet. He replied that "I guess that rash was connected with this hair [loss on the feet] and all that." When asked to clarify whether he was referring to hair loss on the legs or fungus on the feet, the Veteran replied "Well I guess it's a fungus on the feet for the rash." The Veteran has not otherwise alleged the presence of any skin rash disability of the feet other than onychomycosis. The Court has recognized that, '[i]n the absence of proof of a present disability, there can be no valid claim' of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Caluza v. Brown, 7 Vet. App. 498, 505 (1995) (recognizing that '[a] service-connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability.'). In the case at hand, the most probative medical evidence of record, including the Veteran's own lay testimony, demonstrates he has not been diagnosed with a skin rash disability other than onychomycosis so as to warrant service connection. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to service connection for a skin rash disability of the feet, other than onychomycosis, claimed as residual to cold weather injuries to the feet, must be denied. ORDER Entitlement to service connection for a skin rash disability of the feet, other than onychomycosis, claimed as residual to in- service cold weather injuries, is denied. REMAND The Veteran has also claimed entitlement to service connection for squamous cell carcinoma of the right cheek and the right side of the nose. He essentially claims that this disability is due to exposure to mustard gas during field or chamber testing in World War II. Pursuant to regulation, full-body exposure to nitrogen or sulfur mustard during active military service together with the subsequent development of squamous cell carcinoma of the skin is sufficient to establish service connection for that condition. See 38 C.F.R. § 3.316(a)(1) (2009). First, according to M21-1MR, IV.ii.1.F.21.a., "All claims and appeals based on exposure to mustard gas or Lewisite received on or after January 19, 2005, are centrally processed at the Muskogee Regional Office (RO)." In the case at hand, the qualifying claim was received by VA in March 2005. Therefore, this claim must be transferred to the RO in Muskogee, Oklahoma, for proper development. Next, because the Veteran had alleged the development of a disability listed under 38 C.F.R. § 3.316(a) due to mustard gas exposure, the April 2009 Board remand found it necessary to attempt verification of the Veteran's reported mustard gas exposure pursuant to M21-1MR, IV.ii.1.F.22.b. According to M21-1MR, IV.ii.1.F.22.c., verification efforts required submission of the veteran's full name; e-mail address; telephone number; date of birth; date of death (if applicable); Social Security number (SSN); branch of service; service number; dates of service; the date of the alleged exposure (month and year); the geographic location of the alleged exposure; the unit to which the veteran was assigned at the time of alleged exposure; the type of exposure involved (full-body, patch, etc.), and the disabilities claimed as having resulted from exposure. On remand, the AMC sent the Veteran a letter requesting this information. The Veteran did not respond to this letter, and no further development was attempted. However, there may already be sufficient information of record to attempt verification of the Veteran's exposure to mustard gas. Of the above information, the Veteran's personal identifying information should be readily available. The Board notes that the Veteran's dates of service are of record (June 1943 through November 1945), as are his branch of service (Army) and his claimed disability (squamous cell carcinoma of the right cheek and the right side of the nose). The Board also notes that the Veteran provided the remaining needed information in response to a September 1993 development letter. He identified the dates of the alleged exposure as between June 1943 and August 1943. In terms of place, he reported having been exposed two times in the United States and England and provided a specific location of "Camp Harrihan, Louisiana." He identified his unit as "R.R. Bat. & Inf. Co." With respect to his description of the type of exposure, the Veteran reported that he was "exposed in railroad boxcar to unknown material." At his March 2009 Board hearing, the Veteran testified that he was exposed to mustard gas when stationed in Pine Bluff, Arkansas. He reported this exposure occurred in 1943 while testing suits in blue tents. In Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims (Court) held that, where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance. Accordingly, given that additional development should have been undertaken following the April 2009 remand based on the information that was already of record, despite the Veteran's the failure to respond to the June 2009 development letter, the Board must once again remand this appeal. See 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 19.9 (2009); Stegall v. West, supra. Finally, the Board notes that the claim of entitlement to a TDIU is inextricably intertwined with the claim being remanded herein, because adjudication of the squamous cell carcinoma claim may affect the merits and outcome of the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, the Veteran's claim of entitlement to service connection for squamous cell carcinoma of the right cheek and the right side of the nose must be fully developed and adjudicated by the RO/AMC before the Board can render a final decision regarding his TDIU claim. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. Jurisdiction of this claim should be transferred to the Muskogee RO. 2. Then, conduct the appropriate development to determine whether the Veteran had full- body exposure to mustard gas during service. See M21-MR IV.ii.1.F.22. If additional information is needed regarding the date of the alleged exposure, geographic location, type of exposure, etc., it should be requested from the Veteran. As noted above, the Veteran's personal identifying information should be readily available. The Veteran's dates of service are of record (June 1943 through November 1945), as are his branch of service (Army) and his claimed disability (squamous cell carcinoma of the right cheek and the right side of the nose). The September 1993 development letter identifies the dates of the alleged exposure as between June 1943 and August 1943. It reports exposure in the United States ("Camp Harrihan, Louisiana") and England. It identifies the Veteran's unit as "R.R. Bat. & Inf. Co." It describes exposure "in railroad boxcar to unknown material." The March 2009 Board hearing testimony reports mustard gas exposure while testing suits in blue tents when the Veteran was stationed in Pine Bluff, Arkansas, in 1943. This information, along with any additional relevant information that is already of record or is received from the Veteran in response to an information request, should be submitted for the appropriate verification. 3. After the development requested above has been completed, again review the record, including the Veteran's TDIU claim. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. 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. 2009). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs