Citation Nr: 1035751 Decision Date: 09/21/10 Archive Date: 09/28/10 DOCKET NO. 04-38 116 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a skin disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Veteran and D.S. ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from October 1973 to October 2001. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. This case was previously before the Board in July 2007. In September 2006, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ), at the RO. Prior to that, in February 2004, the Veteran testified before a Decision Review Officer of the RO. Transcripts of those proceedings are of record. A March 2010 rating decision granted service connection for bilateral hearing loss and assigned a noncompensable rating, effective September 10, 2007. The Veteran has not expressed disagreement with the March 2010 RO decision. FINDING OF FACT A chronic skin disability was not shown in service, and the competent medical evidence fails to establish a nexus or link between a chronic skin disability and the Veteran's active service. CONCLUSION OF LAW A chronic skin disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. Duty to Notify 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 or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA 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. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence dated in August 2003, March 2006, and August 2007 the Veteran was informed of the evidence and information necessary to substantiate the claim, the information required of the appellant to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. In the March 2006 letter the Veteran received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As VCAA notice was not completed prior to the initial AOJ adjudication of the claim, such notice was not compliant with Pelegrini. However, as the case was readjudicated thereafter, there is no prejudice to the Veteran in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Duty to Assist The Veteran's service treatment records are associated with the claims file, and in November 2009 the Veteran underwent a VA examination that addressed the medical matters presented by this appeal. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the November 2009 VA examination is more than adequate. The November 2009 VA examiner elicited information concerning the Veteran's military service and considered the pertinent evidence of record, and included a specific reference to the Veteran's service treatment records. Supporting rationale was provided for the opinion. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board finds that there has been substantial compliance with its July 2007 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In this regard, the Board notes that no VA Form 21-4142 authorizing VA to obtain records pertaining to a skin disability was submitted. In short, the Veteran has not referenced any obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Legal Criteria A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). The Veteran's December 1972 service entrance examination indicates that the Veteran's skin was clinically evaluated as normal. A January 1993 service treatment record reveals that the Veteran complained of a rash on the shoulder and waist line. The assessment was xerosis. An April 1993 service treatment record noted that the Veteran complained of a rash on the lower abdomen and left side; the assessment was xerosis/dermatitis. A March 1995 service treatment record reveals that the Veteran complained of itching of one week's duration around the hip; the assessment was probable pityriasis rosacea. An August 1995 service periodic examination noted that clinical evaluation of the Veteran's skin was normal. A June 2000 service Preventative Health Assessment (PHA) revealed that the Veteran's skin was normal and had no abnormal appearing masses or lesions. The Veteran did not complain of skin problems on a February 2001 report of medical assessment. At an August 2003 VA skin examination the Veteran indicated that he had a skin rash every two months that would last from seven to ten days. The examiner indicated that the Veteran did not "have a rash now." At an August 2004 VA examination, the Veteran stated that he had intermittent episodes of a rash (including of the neck, forearms, shoulders, and hips) that lasted form two days to two weeks and would completely resolve upon applying topical steroid cream. The examiner indicated that the Veteran had no areas of rash at the time of the examination. The diagnosis was dermatitis, chronic, intermittent. At a November 2009 VA examination, the examiner noted that there was no "visible rash" present. The diagnosis was history of "xerosis/dermatitis not currently active/visible." The Board can find no indication that the Veteran had a chronic skin disability in service, and there is no objective clinical finding revealing that the Veteran currently has a chronic skin disability. While the Veteran did seek treatment for a skin condition during service, no skin condition was noted or complained of for the last six years of his service, and the Veteran did not complain of any skin condition on his February 2001 (retirement) report of medical assessment. As for post- service records, the Veteran has undergone three examinations during the pendency of this appeal, and none of the examinations noted any skin condition. The Board notes that, to the extent it may be interpreted that the November 2009 VA examiner appeared to indicate that the Veteran had a skin condition related to his military service, a service connection claim requires, however, at a minimum, medical evidence of a current disability. As there has been no demonstration by competent clinical, or competent and credible lay, evidence of record of a chronic skin disability, the preponderance of the evidence is against the Veteran's claim for service connection for a skin disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board notes that the Veteran and his wife are competent to provide testimony and statements concerning factual matters of which they have first hand knowledge (i.e., experiencing or observing skin problems during or after service). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements 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, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). et. App. 492, 494 (1992). The Board finds, however, that the Veteran's contentions as to continuity of symptomatology of skin problems since service are less than credible. In addition to being not supported by the record, the Veteran has indicated otherwise. In this regard, the Board notes that the Veteran did not indicate that he had any skin problems at the time of his retirement from service. Additionally, neither the Veteran nor his wife, as a layperson without medical training, is competent to diagnose a current chronic skin disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a skin disability is denied. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs