Citation Nr: 1127544 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 05-09 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a skin disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and K.L. ATTORNEY FOR THE BOARD T. Wishard, Associate Counsel INTRODUCTION The Veteran had active military service from August 1959 to July 1963. This matter comes before the Board of Veterans' Appeals (Board) from a January 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Phoenix, Arizona. In September 2006, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in January 2008 and April 2010, when it was remanded for further development. It has now returned to the Board for further appellate consideration. As is discussed in further detail below, the Board finds that the RO substantially complied with the mandates of the prior remands and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. The competent credible medical evidence of record is against a finding that the Veteran's current skin disability is causally related to active service. 2. The Veteran is less than credible with regard to the onset of his current skin disability. 3. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran's current skin disability is causally related to active service. CONCLUSION OF LAW Skin disability was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1112, 1113, 1131, 1137, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). 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) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010); 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, it will assist in substantiating or that is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In VA correspondence to the Veteran in October 2003, VA informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The notice was deficient in that it did not inform the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess/Hartman. Such notice was provided to the Veteran in VA correspondence dated in March 2006 and in April 2008. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable agency of original jurisdiction decision. Because the VCAA notice was not completed prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error. Although complete notice was provided to the appellant after the initial adjudication, the claim was readjudicated thereafter, and the appellant therefore, has not been prejudiced. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. The VCAA requires that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds the VCAA notice requirements have been met in this case. Duty to assist With regard to the duty to assist, the claim's file contains the Veteran's service treatment records (STRs), VA and private medical records, articles, the testimony of K.L., and the Veteran's statements in support of his claim, to include his testimony at a Board hearing. The Board has carefully reviewed the statements and concludes that there has been no identification of further available evidence not already of record for which VA has a duty to obtain. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a further duty to obtain. VA examinations and/or opinions with respect to the issue on appeal were obtained in November 2009, June 2010, and August 2010. 38 C.F.R. § 3.159(c) (4). To that end, 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 VA examinations/opinion obtained in this case are adequate, as they are predicated on a review of the claims file, to include medical records, an interview with the Veteran regarding his symptoms and complaints, to include a history, and a dermatology physical examination. Rationale was provided for the opinions offered. 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 acknowledges that the August 2010 VA examiner stated that it is not possible to know from the medical records how much time the Veteran spent in the sun. As noted by the Court in Jones v. Shinseki, 23 Vet. App 382 (2010), "in certain cases, no medical expert can assess the likelihood that a condition was due to an in-service event or disease, because information that could only have been collected in service, or soon thereafter, is missing, or the time for obtaining other information has passed." In the present claim, the medical records, which are contemporaneous to the Veteran's service, are negative for any complaints of, or treatment, for significant sun exposure or sunburns. In addition, the Veteran's service personnel records are negative for such conditions. As the Court noted, it would be inappropriate for VA to demand a conclusive opinion from a physician whose evaluation of the "procurable and assembled" information prevents the rendering of such an opinion. The Board finds that any statements by the Veteran that he had significant exposure to the sun in service are less than credible when considered with the evidence of record. As is discussed in further detail below, the Board finds that the Veteran's service personnel records and STRs are against a finding that the Veteran had excessive sun exposure. His MOS was an electrical power production specialist. His STRs reflect he worked in a power plant. In addition, his STRS clearly reflect that his skin disability in service was contact dermatitis and do not reflect "sun exposure" as the Veteran now claims. "When an examiner has done all that reasonably should be done to become informed about a case, however, and the inability to render a requested opinion is adequately explained by the examiner or otherwise apparent in the Board's review of the evidence, there is nothing further to be obtained from that particular examiner." Jones, supra. As the Board finds that there has been no demonstration that the Veteran had significant sun exposure in service, a further opinion by the examiner would not be beneficial to the Veteran and is not necessary to adjudicate the claim. The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal criteria Service connection- in general Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). "Generally, to prove service connection, a claimant must submit (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). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In Robinson v. Shinseki, 312 Fed. Appx. 336 (2009), the Court held that, in some cases, lay evidence will be competent and credible evidence of etiology. Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance. The Court set forth a two-step analysis to evaluate the competency of lay evidence. First, Board must first determine whether the disability is the type of injury for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record-including, if the Board so chooses, the fact that the Veteran has not provided any in-service record documenting his claimed injury -to determine whether to grant service connection. The Board observes that this Federal Circuit decision is nonprecedential. However, see Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) [a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains"]. The Board believes that if Bethea applies to the utility of Court decisions, it surely applies to the utility of a decision of a superior tribunal, the Federal Circuit. 557 F.3d 1355 (Fed. Cir. 2009). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has 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). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran states that he has a skin disability causally related to active service, to include sun and chemical exposure. The first element of a claim for service connection is that there must be evidence of a current disability. VA medical records reflect that the Veteran has numerous erythematous papules on his forearms, neck, cheeks, and forehead/scalp. (See June 2010 VA examination.) He has been diagnosed with actinic keratosis. (See November 2009 VA examination.) The Board finds that the first element for service connection has been met. The second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. An April 1962 STR reflects that the Veteran had a rash on the arms and chest. The impression was allergic dermatitis. An April 1962 STR reflects that the Veteran had a rash on both arms, spreading to the neck and trunk which had been present for three days, and which looked like an allergic reaction. A May 1962 STR reflects that the Veteran had a rash on his arms, legs, and back. The examiner noted it looked possibly like it could be an allergic reaction. An August 1962 STR reflects that the Veteran had the same rash as in April. The examiner noted it looked like urticaria. It was present on both arms and the neck. The examiner noted that the Veteran "works in power plant and when it is warm is when it itches." The impression was contact dermatitis. An August 1962 STR reflects that the Veteran had a history of eczema as a baby. He had a rash in the antecubital area, neck and arms when it gets hot or exposed to fuel in the power plant where he works. A November 1962 STR reflects that the Veteran did not have a rash but he has it every time that he gets exposed to high temperatures. It was recommended that he try to get out of the power plant in which he worked and onto the emergency crew. The subsequent STRs are negative for any complaints of a rash. The Veteran's report of medical examination for separation purposes, dated in July 1963, reflects that his skin was normal upon physical examination. Based on the foregoing, the Board finds that the Veteran did have a skin disability of contact dermatitis in service. However, there is no evidence of actinic keratosis in service. With regard to the third element for service connection, the claims file contains a November 2009 VA medical opinion. The examiner stated that a "review of the scientific literature reveals no established causal relationship between carbon tetrachloride skin exposure and actinic keratosis. Actinic keratosis is overwhelmingly the result of long term sun exposure." He noted that "actinic keratosis are common among people living in areas of greater sunshine and in individuals who, as a result of either their work or recreational habits, spend significant amounts of time in the sun over long periods. This can include shorter, but regular periods of time over many years." In August 2010, the same VA examiner further stated that it is not possible to know from the medical records how much time the Veteran spent in the sun, but if his job required significant sun exposure it did contribute to his actinic keratosis. In this regard, the Board notes that the Veteran was stationed in Texas in 1959 and in Puerto Rico for slightly less than two years in 1962 and 1963. Despite service in these areas, the Board notes that the Veteran's service personnel records are negative for significant sun exposure. To the contrary, the records reflect that he worked in a power plant. The high temperatures referred to in the STRs are temperatures inside a power plant and not outside. The Board acknowledges the Veteran's testimony at the Travel Board hearing that when he was treated in service, he was diagnosed with probable "exposure to the sun". (See Board hearing transcript, page 6.) However, this statement is contrary to the actual STRs, which the Board finds more probative as they are contemporaneous to the treatment. The STRs reflect "contact dermatitis", and treatment with such medications as Calamine lotion and Benadryl. It was noted that his skin condition was due to heat and/or exposure to fuel in the power plant where he worked. The Board notes that the Veteran is competent to report that he has had a skin disability. However, he has not been shown to possess the training or expertise necessary to make an etiological determination or diagnosis as to his current skin disability. While the medical evidence reflects that the Veteran had an allergic skin reaction in service, the medical evidence further reflects that he has a current skin disability of actinic keratosis which has not been shown to be related to his in-service chemical exposure. The earliest clinical post service record of a skin disability (basal cell carcinoma) is in 1987, more 23 years after separation from service. Not only is it more than two decades after separation from service, but it is not the same disability as that which the Veteran had in service. There is no medical evidence of record which reflects that the Veteran has a disability which is the same or similar to the disability which he had in service. Moreover, the VA examination reports are negative for such a finding. With regard to private medical records, a 1992 private medical record reflects that the Veteran is "very fair-skinned and has [history of] numerous sunburns and 'sun poisoning'. He works as a mail carrier." The Board notes that the Veteran was living in Arizona at the time, and has lived there for more than two decades. The record is entirely negative for any mention of significant sun exposure in service, but notably the examiner mentioned the Veteran's post service mail carrier occupation. While the Board acknowledges that the absence of any corroborating medical evidence supporting assertions, in and of itself, does not render lay statements incredible, such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of Veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting that lay evidence can be competent to establish a diagnosis when . . . a layperson is competent to identify the medical condition.) The Board finds that any statement by the Veteran that he has a skin disability since separation from service is less than credible when considered with the record as a whole. Thus, while the Veteran is competent to report a skin rash or skin disability since service, he is not found to be credible with regard to continuity of such a rash in the four decades since service. His July 1963 medical examination report reflects normal skin upon clinical evaluation. His STRs subsequent to the November 1962 record, which recommended removal from the power plant, are negative for a rash. Importantly, the post service medical records do not reflect the same skin disability as the in-service records. Moreover, the Veteran has not been shown to have the medical expertise or training necessary to make findings of medical diagnosis or causation. As such, his lay opinion does not constitute competent medical evidence and lacks probative value. The Board acknowledges the testimony of K.L. at the Board hearing. K.L. testified that the Veteran has a topical dermatitis, which starts out as "heat rash". The Board notes that the Veteran has been diagnosed with basal cell carcinoma and actinic keratosis, which is caused by sun exposure, not heat exposure. (DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007) defines actinic as "pertaining to those rays of light beyond the violet end of the spectrum that produce chemical effects." Actinic keratosis is noted to "usually [affect] the middle-aged or elderly, especially those of fair complexion, and is caused by excessive exposure to the sun." K.L. testified that she is a registered ultra stenographer, an x-ray technician, a certified professional coder, and a multi specialty biller. The Board finds that these credentials and training do not reflect that K.L. has the expertise or training necessary to make findings of medical diagnosis or causation. While her job may be in the medical field, it consists of administrative work and technical manipulation of x-ray equipment, and not clinical diagnosis. Thus, the Board finds that it is not as probative as the VA examination opinions. The Board has also considered the articles of record which pertain to chemical exposure. The Board does not dispute that the STRs reflect that the Veteran had a skin reaction to a chemical in service; however, the medical evidence of record reflects that the Veteran's current skin disability is caused by sun exposure, and not chemical exposure in service. There is no demonstration that any skin reaction to a chemical in service was other than acute and transitory and resolved with no residual disability. In sum, the only medical opinion of record is against a finding that the Veteran's skin disability is related to chemical exposure in service. There is no competent medical opinion of record which reflects that his current skin disability is causally related to active service, to include sun exposure. Moreover, the Board finds that the evidence of record is against a finding that the Veteran had significant sun exposure in service. In the absence of competent medical evidence relating a current skin disability to service, and in the absence of competent and credible lay evidence of continuity of symptomatology since service, the Board finds that service connection is not warranted. The Board has considered the benefit of the doubt rule but finds that it is not applicable because the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for a skin disability is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs