Citation Nr: 1120974 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 06-12 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for urticaria, claimed as a wool allergy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The Veteran had active military service from December 1967 to December 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. This case was brought before the Board in February 2009, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim, to include providing the Veteran with a VA examination. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. FINDINGS OF FACT 1. The Veteran is presumed sound at entry to active service. 2. The competent evidence of record indicates the Veteran is diagnosed with urticaria that is etiologically related to active service. CONCLUSION OF LAW Urticaria was incurred in active service. 38 U.S.C.A. §§ 1110, 1111 (West 2002); 38 U.S.C.A. §§ 3.303, 3.304(b) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the Veterans Claims Assistance Act (VCAA) of 2000 (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful 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. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2010). The Veteran asserts entitlement to service connection for a wool allergy is warranted as directly related to active service. Specifically, he asserts that had never worn wool prior to entering active service, and began to suffer from a wool allergy almost immediately after service entrance. Initially, the Board observes the Veteran was provided a VA examination in June 2007, at which he was diagnosed with urticaria, or a wool allergy. The VA examiner provided an opinion that it is less likely than not that the Veteran's current wool allergy is etiologically related to service. In this regard, the VA examiner noted that it was his opinion that the Veteran's wool allergy existed prior to active service. As such, the Veteran's claim of service connection was denied on the basis that his wool allergy preexisted active service. See August 2007 rating decision. With respect to preexisting disabilities, every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled in service, except for defects, diseases, or infirmities noted at the time of entrance, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C.A. § 1111 (West 2002). According to 38 C.F.R. § 3.304(b) (2010), the term "noted" denotes only such conditions that are recorded in examination reports. The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but will be considered together with all other material evidence in determining the question of when a disease or disability began. See 38 C.F.R. § 3.304(b)(1) (2010). Determinations of whether a condition existed prior to service should be "based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to ... manifestations, clinical course, and character of the particular injury or disease or residuals thereof." Id. Pertinent to the instant appeal is the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) summarizing the effect of 38 U.S.C.A. § 1111 on claims for service-connected disability: When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C.A. § 1153. If this burden is met, then the Veteran is not entitled to service- connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. Wagner, 370 F. 3d at 1096. In the instant case, a July 1967 Report of Medical Examination, completed upon the Veteran's entry to active service indicates a normal skin clinical evaluation. There is no mention of a wool allergy, or any other skin condition. Therefore, the Board determines that, with respect to a wool allergy, the Veteran is presumed sound upon service entrance. See 38 U.S.C.A. § 1111; see also 38 C.F.R. § 3.304(b). Furthermore, in reviewing the evidence of record, the Board finds that there is not clear and unmistakable evidence that the Veteran's wool allergy preexisted active service. In this regard, while the June 2007 VA examiner opined that the Veteran's wool allergy preexisted service, no clinical evidence was cited to support such a conclusion. In light of this opinion, the Board sought another VA opinion, which was obtained in April 2009. After reviewing the claims folder, the VA examiner found there is no clear and unmistakable evidence that the Veteran's wool allergy preexisted service, as the entrance examination was benign and there is no medical documentation of an allergy prior to service entrance. As such, the Board finds there is no clear and unmistakable evidence to support a conclusion that the Veteran's wool allergy preexisted active service. Therefore, the Veteran is presumed sound upon entering service. See Wagner, supra. If the government fails to rebut the presumption of soundness under 38 U.S.C.A. § 1111, the Veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); see also 38 C.F.R. § 3.322. After a careful review of the record, the Board concludes that the competent evidence of record demonstrates that the Veteran's wool allergy, diagnosed as urticaria, is etiologically related to his active service. Service treatment records indicate the Veteran sought treatment for recurrent urticaria in January 1968, and was diagnosed with a probable moderate wool intolerance. The record indicates the Veteran subsequently sought dermatological treatment for recurrent urticaria several times during his active service. Further, as noted above, post-service records include the report of a June 2007 VA examination, which indicates the Veteran continues to be diagnosed with urticaria, or a wool allergy. In Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In addition, the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Id. In sum, there is no clear and unmistakable evidence of record to support a conclusion that the Veteran's wool allergy preexisted active service and, thus, he is presumed sound. Furthermore, the evidence of record indicates the Veteran was diagnosed with recurrent urticaria during his period of active service and continues to suffer from this condition. As such, the Board finds that service connection for urticaria is warranted in the present case. ORDER Service connection for urticaria is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs