Citation Nr: 1226953 Decision Date: 08/03/12 Archive Date: 08/10/12 DOCKET NO. 03-18 404A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a skin condition on the legs. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied the Veteran's claim for service connection for a skin condition on the legs. This appeal was previously before the Board and the Board remanded the claim in March 2006, July 2010 and July 2011 for additional development. The case has been returned to the Board for further appellate consideration. In February 2006, a Central Office hearing before the undersigned Veterans Law Judge was held in Washington, D.C. A transcript of that hearing is of record. In July 2011, the Board remanded the issue for further development; the issue is now ready for adjudication. As noted in the July 2011 Board Remand, in a November 2010 supplemental claim, the Veteran raised the issues of increased evaluations for posttraumatic stress disorder, residuals of right hand fracture, and inclusion cyst of the right hand; and entitlement to service connection for Hepatitis C, sleep apnea, and hypertension; and entitlement to benefits for unemployability. Further, the issue of entitlement to service connection for tinea pedis and oncychomycosis on the feet has been discussed by the Veteran's representative. Each of the aforementioned issues has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The competent medical evidence does not demonstrate a relationship between the Veteran's service and a skin condition on the legs. CONCLUSION OF LAW A skin condition on the legs was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(e) (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this appeal, in a January 2002 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. A May 2006 letter provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the May 2006 letter, and opportunity for the Veteran to respond, the October 2009 supplemental SOC (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment and personnel records, VA treatment records, VA examination reports, and hearing testimony. This matter was most recently before the Board in July 2011, when the case was remanded to the RO (via the Appeals Management Center (AMC), in Washington, D.C.). The purpose of this remand was to make additional attempts obtain private treatment records, to include records from Kaiser Permanente. The AMC has completed the required tasks as requested, as is within their power. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Subsequently, a supplemental statement of the case (SSOC) was issued in April 2012, which confirmed the previous denial. In his July 2012 Informal Hearing Presentation, the Veteran, through his representative, requested that the Board remand the issue to the RO so that additional efforts could be made to obtain private treatment records from Kaiser Permanente. Notably, this issue was remanded by the Board in March 2006, July 2010 and July 2011 so that the Veteran could sign and complete the necessary authorization for release of records from Kaiser Permanente. In accordance with the last remand, in August 2011, a duty to assist letter was sent to the Veteran requesting that he fill out a VA Form 21-4142 so that such records could be requested. The Veteran did not respond. A September 2011 Report of Contact noted that the Veteran had stated that he no longer had his medical number. He was informed that he would be given ten days to contact the AMC with this information. An October 2011 Report of Contact demonstrates the Veteran's report that he was ill and would submit a completed VA Form 21-4142, he was told he would have a week to do so. The next day, the AMC received an incomplete VA Form 21-4142 which failed to provide the address of Kaiser Permanente. On April 24, 2012, the Veteran a letter from the AMC was issued requesting that he fill out a VA Form 21-4142 in its entirety and the Veteran was informed that he would be given 30 days to do so. The Veteran failed to reply. A supplemental statement of the case was issued on May 30, 2012. A July 2012 Informal Hearing Presentation states that "instead of contacting the Veteran in order to obtain the missing information, the regional office simply denied the claim." This is not the case. Significantly, prior to the issuance of the supplemental statement of the case, the Veteran was offered one last opportunity to provide a properly completed VA Form 21-4142 in April 2012 and he failed to respond within 30 days. Further, the Veteran's representative fails to acknowledge that the April 2012 duty to assist letter was a final attempt following several years worth of attempts to obtain a complete authorization form with both the Veteran's medical number and the address of the facility. The Board is cognizant of the fact that the July 2010 remand notes the AMC failed to inform the Veteran that they were unable to retrieve his records without his medical number. However, the claims file clearly demonstrates multiple and consistent requests for the necessary information and the Veteran's consistent inability to provide a complete VA Form 21-4142 in a timely fashion. The Board finds that the duty to assist has been fulfilled. As noted above, the Veteran is shown to have been contacted by the AMC a total of five times between the last remand and the issuance of the supplemental statement of the case. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this case, the AMC is shown to have made appropriate efforts to obtain the necessary information from the Veteran in order to help him pursue service connection. No further action is required. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the Veteran's claims file and electronic Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Further, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307 (2010). Regulations further provide, in pertinent part, that if a Veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, chloracne or other acniform disease consistent with chloracne and porphyria cutanea tarda shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. The Veteran contends that he was exposed to Agent Orange during his military service which caused a skin condition on the legs. Service personnel records demonstrate that the Veteran served in Vietnam. Service treatment records include a single complaint of tinea pedis in June 1971. The Veteran reported skin diseases in June and October reports of medical history. In the Veteran's January 1972 report of medical history for separation, no skin diseases were reported. The Veteran's post-service records include diagnoses of tinea pedis and chronic lichen simplex. The Veteran's treating physicians are not shown to provide any opinion as to the etiology of these conditions. The Veteran was afforded a VA examination in April 2010. The examiner noted that she had reviewed the Veteran's claims file. During his examination, the Veteran stated that his memory was poor and that he was not certain of the date of onset of his leg condition. He estimated that his legs began to itch sometime in the 1980s. He described his symptoms as a constant thickening of the skin. The Veteran reported itching, peeling scars on his legs. He reported intermittent treatment for this condition. Physical examination revealed tinea pedis, onychomycosis on six of ten of the Veteran's toenails and lichen simplex chronicus on the legs, ankles and dorsal feet. Having examined the Veteran and reviewed the claims file, the examiner stated that the Veteran's skin condition on the legs was less likely than not caused by or a result of service or otherwise related to service to include exposure to Agent Orange. The examiner explained that there was no evidence in the Veteran's service treatment records of a skin condition on the legs and that tinea pedis was not the cause of the Veteran's lichen simplex which was a condition caused by repetitive rubbing and scratching of the skin. The examiner further noted that the Veteran's skin condition was not one of the recognized Agent Orange-related conditions. VA treatment records dating from 2010 to 2012 note lichen simplex chronicus in the problem list, but provide no opinion concerning the etiology of such. The Board finds that the preponderance of the evidence is against the Veteran's claim for service connection. Initially, service treatment records do not demonstrate that the Veteran had a chronic skin disability upon discharge in February 1972 as evidenced by his January 1972 report of medical history in which the Veteran did not report skin diseases. Further, the Veteran himself noted that he did not recall the onset of his symptoms, stating that he believed they began in the 1980s, several years after service. This goes against a finding that the Veteran had continuous symptoms following service. The Board notes the Veteran's belief that his leg condition is due to exposure to Agent Orange. As he is shown to have served in Vietnam, exposure to herbicides is conceded. Here, however, the Veteran's diagnosed skin disorder of the legs, lichen simplex chronicus, is not among the diseases presumed to be related to herbicide exposure and none of the medical evidence suggests a relationship between herbicides and this condition. 38 C.F.R. §§ 3.307, 3.309. Moreover, he has not been diagnosed with chloracne or other acneform disease, nor with porphyria cutanea tarda. While the Veteran contends that his skin condition of the legs is related to his military service, to include Agent Orange exposure, there is no indication that he has specialized training in diagnosing skin conditions or determining their etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of skin disorders requires medical testing to identify, and such disability can have many different causes, thereby requiring medical expertise to determine the etiology. Moreover, whether symptoms experienced in service or following service are in any way related to his current lichen simplex chronicus is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). In this case, the opinion of the April 2010 VA examiner that the Veteran's skin condition of the legs is not related to service or herbicide exposure outweighs the Veteran's lay opinion to the contrary. The examiner's opinion was provided following examination of the Veteran and review of the claims file. There is no medical opinion to the contrary. Here, the evidence of record has failed to demonstrate a chronic skin condition on the legs in service and the most probative evidence is against a conclusion that the current skin condition of the legs is related to service. Accordingly, as the preponderance of the evidence weighs against the Veteran's claim, service connection for a skin condition on the legs must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to service connection for a skin condition on the legs is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs