Citation Nr: 1105929 Decision Date: 02/14/11 Archive Date: 02/28/11 DOCKET NO. 09-08 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a skin disorder, to include neurodermatitis. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2000 to June 2006, including service in Iraq. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefit sought on appeal. FINDING OF FACT The Veteran's skin disorder, to include neurodermatitis, was incurred in, or caused by, her active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a skin disorder, to include neurodermatitis, have been met. 38 U.S.C.A. §§ 1110, 1113, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION As a result of the Board's decision to grant service connection for the Veteran's skin disorder, to include neurodermatitis, any failure on the part of VA to notify and/or develop the claim pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009), cannot be considered prejudicial to the Veteran. The Board will therefore proceed to a review of the claim on the merits. The Veteran contends that she has a skin disorder, to include neurodermatitis, that began in October 2004, during her military service, and that this disorder intensified during her deployment to Iraq. The Veteran further alleges that she received continuing treatment for her skin disorder throughout her active military service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110, 1131 (West 2002). Service connection may be granted for any disorder diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2010). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2010). 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. See 38 C.F.R. § 3.303(b) (2010). 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. See 38 C.F.R. § 3.303(d) (2010). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Though the Veteran has been unable to appear for scheduled VA examinations, she has a currently diagnosed skin disorder. The Veteran was diagnosed with acne/neuroderm overlap and neurodermatitis by a VA physician in January 2007, satisfying the first element of the Hickson test. See Hickson, supra. With respect to the second element of the Hickson test, in- service disease or injury, all efforts made by the RO to find the Veteran's service treatment records were unsuccessful. A Formal Finding on the Unavailability of Service Medical Records, detailing the attempts made to locate the Veteran's records, was issued in June 2007. In a case such as this where it appears that a Veteran's service treatment records are incomplete, the Board's obligation to explain its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule, is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board must point out; however, that the O'Hare precedent does not raise a presumption that the missing medical records would, if they still existed, necessarily support the Veteran's claim. Additionally, case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Notwithstanding the unavailability of her service treatment records, the Veteran contends that her skin disorder has been present since approximately October 2004, during her active military service. Further, a review of the claims file reveals that the Veteran was initially seen by a VA physician for her skin disorder in September 2006, less than four months following her separation from active service, and that she has sought regular treatment for her skin disorder since that time. At the time of her visit with the VA physician, the Veteran reported having a persistent papular or nodular skin rash, lasting several years and affecting her upper and lower back, as well as her arms, knees, and thighs. She reported that the rash began before her deployment and, despite various treatments, has continually affected her. Accordingly, the Board finds that the Veteran has presented credible lay testimony that her currently diagnosed skin disorder had its onset during her active military service. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Hickson, supra. This finding is strongly supported by the evidence of record that the Veteran sought treatment for this disorder immediately following her discharge from service. In this regard, the Board notes that the Veteran is competent to report the symptoms of a skin disorder. See Washington v. Nicholson, 19 Vet. App. 362 (2005); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology). Competent testimony is limited to that which the witness has actually observed and is within the realm of her personal knowledge; such knowledge comes to a witness through use of her senses-that which is heard, felt, seen, smelled or tasted. See Layno, supra. It is within the Veteran's realm of personal knowledge whether she has the symptoms of a skin disorder. Moreover, there is no reason to doubt the credibility of the Veteran in reporting the onset of her skin disorder during her active military service. With respect to the third element of the Hickson test, the Board finds that the nexus between the Veteran's currently diagnosed skin disorder and her reported in-service skin disorder is established by the steps taken by the Veteran to seek treatment for her condition immediately following her discharge from service. The Veteran reported receiving regular treatment for her skin disorder during service and she has received regular treatment since her separation from active service. In spite of the treatment that she has received, the disorder has persisted since it first appeared during her active service. See Hickson, supra. Therefore, the Board finds that the Veteran meets all three elements required for service connection for a skin disorder, to include neurodermatitis. She currently has a skin disorder. Additionally, she has consistently reported having a persistent skin disorder while in service. Finally, she sought medical attention for the same persistent skin disorder from a VA physician immediately following her discharge from service, thereby providing the necessary nexus between the claimed in- service disability and the present disability. Accordingly, applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. See 38 C.F.R. § 3.102 (2010); see also O'Hare, supra. Therefore, the Veteran's claim for service connection for a skin disorder, to include neurodermatitis, is granted. ORDER Entitlement to service connection for a skin disorder, to include neurodermatitis, is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs