Citation Nr: 1124976	
Decision Date: 06/30/11    Archive Date: 07/06/11

DOCKET NO.  08-08 315	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for a skin disorder.  


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Christopher McEntee, Counsel 


INTRODUCTION

The Veteran had active service from September 1968 to March 1970.    

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  In February 2010, the Board remanded this matter for additional medical inquiry.        


FINDING OF FACT

The Veteran's skin disorders are not related to service.  


CONCLUSION OF LAW

A skin disorder was not incurred in or aggravated by active service, and may not be presumed related to service.  38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.313 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

In the interest of clarity, the Board will initially discuss whether the claim decided here has been properly developed for appellate purposes.  The Board will then address the merits of the claim, providing relevant VA law and regulations, the relevant facts, and an analysis of its decision.

I.  Veterans Claims Assistance Act of 2000

The Board must determine whether the claimant has been apprised of the law and regulations applicable to this matter, the evidence that would be necessary to substantiate the claim, and whether the claim has been fully developed in accordance with the Veterans Claims Assistance Act of 2000 (VCAA) and other applicable law.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002).

VA is required to provide notice of the VCAA to a claimant as required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1).  More specifically, VA is required to notify a claimant of the evidence and information necessary to substantiate a claim and whether the claimant or the VA is expected to provide the evidence, and is required to request from the claimant any other evidence in his or her possession that pertains to the claim.  Id.

VA provided the Veteran with VCAA notification in a letter dated in February 2007.  38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159.  In that letter, VA informed the Veteran of the legal requirements in his appeal, and of the evidence necessary to substantiate his claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VA advised the Veteran of the respective duties of the VA and of the Veteran in obtaining evidence needed to substantiate his appeal.  VA requested from the Veteran relevant evidence, or information regarding evidence which VA should obtain.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  See also 73 Fed. Reg. 23353 (the requirement of requesting that the claimant provide any evidence in his/her possession that pertains to the claim was eliminated by the Secretary [effective May 30, 2008] during the course of this appeal, and this change eliminates the fourth element of notice as required under Pelegrini).  The Veteran was provided with a notification letter prior to the adverse rating decision on appeal.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2007) (VCAA notice must be provided to a claimant before the initial unfavorable RO decision).  And the RO readjudicated the Veteran's appeal in the statement of the case (SOC) and supplemental SOC (SSOC) of record.  See Overton v. Nicholson, 20 Vet. App. 427 (2006) (a timing error may be cured by a new VCAA notification letter followed by a readjudication of the claim).  

The VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A.  The VCAA provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary, as further defined by statute, to make a decision on the claim.  38 U.S.C.A. § 5103A.

In this matter, the Board finds that VA's duty to assist has been satisfied as well.  VA afforded the Veteran the opportunity to appear before one or more hearings to voice his contentions.  VA obtained medical records relevant to this appeal.  And the RO provided the Veteran with VA compensation examination.  

In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with VA's duties to notify or assist the Veteran in this appeal.  Therefore, the Veteran has not been prejudiced as a result of the Board deciding his claim here.  

II.  The Merits to the Claim for Service Connection

The Veteran had active service from September 1968 to March 1970.  The record indicates that the Veteran served in the Republic of Vietnam during this tour of duty.  In this appeal, the Veteran claims service connection for a skin disorder, which he claims he incurred during his service in Vietnam.    

Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2010).  When a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154 (West 2002); 38 C.F.R. § 3.303(a) (2010).

Service connection may be awarded where the evidence shows that a Veteran had a chronic condition in service or during an applicable presumptive period and still has the condition.  38 C.F.R. §§ 3.303(b), 3.307, 3.309 (2010).  Certain disorders, such as arthritis, will be presumed to have been incurred in service if manifested to a compensable degree within one year after service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010).  If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim.  38 C.F.R. § 3.303(b).  Service connection may also be granted for disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service.  38 C.F.R. § 3.303(d).

A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and who has one of the listed diseases under 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113, 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft- tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  See 38 C.F.R. § 3.309(e).

In this matter, the evidence of record clearly shows that the Veteran has current skin disorders.  Pursuant to the Board's February 2010 remand, a VA compensation examination was conducted into the Veteran's claim.  In a March 2010 report of record, the examiner indicated that the claims file had been reviewed and that the Veteran had been examined.  In the conclusion of the report, the examiner diagnosed the Veteran with rosacea, skin tags, and actinic keratoses of the scalp.  The Board also notes private treatment records dated in 2008 which note probable malignant melanoma on the back, warts, actinic keratoses, rosacea, and a history of blisters on the elbows, fingers, and ankles.  A February 2007 VA report of record addresses, moreover, potential effects Agent Orange may have had on the Veteran as a result of his service in Vietnam.  This report notes that the Veteran did not have chloracne or porphyria cutanea tarda, but did have diffuse dermatitis.     

With regard to the issue of presumptive service connection, the Board notes that none of the Veteran's diagnosed skin disorders is listed under either 38 C.F.R. § 3.307 or § 3.309.  As such, a service connection finding for a skin disorder on a presumptive basis would not be warranted here.  Nevertheless, even if a Veteran is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis.  Stefl v. Nicholson, 21 Vet App 120 (2007).

In general, direct service connection under 38 C.F.R. § 3.303 will be granted where the record demonstrates (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of 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, 346 (1999).  

The Board notes that, under 38 C.F.R. § 3.303(b), service connection may be established through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

In this matter, the Board notes a division in the evidence with regard to whether the Veteran's current skin disorders relate to service. 

On the one hand, certain lay evidence indicates that the Veteran had a skin disorder during service, soon after service, and since leaving service.  In statements from the Veteran, he asserts he had a skin disorder during service that has continued since service.  He attributes the disorder to herbicide exposure.  Certain medical records indicate that the Veteran reported having dermatitis during service, and since leaving service.  And in lay statements received in November 2011, the Veteran's mother and friend attest that they witnessed a rash on the Veteran's skin when he returned from service in the early 1970s.  Each also indicated that they remember the Veteran talking about a skin disorder while he was on active duty.  

The Board notes that lay persons are not competent to opine as to medical etiology or render medical opinions.  Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  However, lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  

The lay witnesses in this matter are competent to describe problems that manifested with the Veteran's skin.  A rash on the body is an observable symptom.  In the absence of evidence that directly challenges the lay statements here, or the credibility of the witnesses in general, the statements will be considered probative.  See Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility is determined by the fact finder).

Moreover, the Board notes that certain medical evidence of record tends to support the Veteran's claim.  VA treatment records dated in September 1971 (the Veteran was discharged in March 1970) indicate that the Veteran then complained of rashes and was prescribed with Tetracycline.  

On the other hand, other evidence of record indicates that the Veteran did not incur a chronic skin disorder during service.  The Veteran's service treatment records are negative for a skin disorder.  His discharge report of medical examination is negative for a skin disorder (the report did note a scar on the Veteran's left thumb, however).  There is no medical evidence of record of treatment for a skin disorder between 1971 and private medical records noting dermatitis in April 2000.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection).  No medical nexus opinion is of record relating the Veteran's current skin disorders to service.  Rather, the only medical professional to review and opine on this matter found the opposite.  In her March 2010 opinion, the VA examiner indicated that the Veteran's skin disorders were likely unrelated to military service.  In support, she noted the lack of evidence indicating an in-service skin disorder in the service treatment records, and she noted that the earliest dermatologic records were dated only to 2000.  See Kightly v. Brown, 6 Vet. App. 200 (1994) (medical opinions must be supported by clinical findings in the record and conclusions of medical professionals which are not accompanied by a factual predicate in the record are not probative medical opinions).  

In assessing the probative value of the conflicting evidence, the Board is mindful of the Veteran's competence to offer evidence regarding observable symptomatology.  His statements regarding rashes and symptoms such as itching are probative.  See Layno, supra.  The determination of what skin disorder the Veteran had after service, or has now, is a determination that is medical in nature, however.  So the Board finds his statements regarding a continuity of symptomatology following service as somewhat lacking in persuasion.  He and the other lay witnesses are simply not competent to state with a reasonable degree of certainty what disorder the Veteran had, and what disorder he now has.  By contrast, the VA examiner is a medical physician.  She stated clearly in the record that the Veteran did not have a skin disorder during service, and that those disorders he currently has are likely unrelated to service.  In support, moreover, she noted a circumstance in this matter that is persuasive - though the Veteran may have had a skin disorder in 1971, approximately 18 months following service, the record indicates that he was not treated for a disorder from then until 2000, almost 30 years following service.  See Maxson, supra.  This omission of treatment, in conjunction with the VA examiner's opinion, strongly indicates that the Veteran did not incur a chronic disorder during service, and did not experience a continuity of symptomatology afterward.  38 C.F.R. § 3.303.  

In the final analysis, the evidence of record preponderates against the Veteran's claim in this matter.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (to deny a claim on its merits, the evidence must preponderate against the claim).  As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for a skin disorder is denied.  



____________________________________________
John E. Ormond, Jr. 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs