Citation Nr: 1300858 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 07-11 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a right hand disorder, claimed as osteoarthritis of the right hand. 2. Entitlement to service connection for a skin disorder, claimed as eczema. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1994 to September 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which in pertinent part, denied service connection for osteoarthritis of the right hand and eczema (also claimed as a skin condition). The Veteran appealed that decision, and the case was referred to the Board for appellate review of both issues. A January 2011 Board determination, in pertinent part, remanded the issues of service connection for a right hand disorder and skin disorder to the RO for further development. The case has since been returned to the Board for appellate review. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDINGS OF FACT 1. Mail has been returned when sent to the Veteran's last known address, attempts by the RO and the Appeals Management Center (AMC) to locate the Veteran have been unsuccessful, and he has not provided any updated contact information. 2. The Veteran failed to report to his scheduled VA examinations in February 2011, and no good cause was shown for his failure to report. 3. A right hand disorder did not manifest in service or within one year thereafter, and the Veteran has not been shown to currently have a right hand disorder that is causally or etiologically related to military service. 4. The Veteran has been shown to currently have eczema that manifested during his military service. CONCLUSIONS OF LAW 1. A right hand disorder was not incurred in service, nor may arthritis of the right hand be presumed to have been so incurred. 38 U.S.C.A. 38 U.S.C.A. §§ 1101, 1110, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. Resolving all reasonable doubt in favor of the Veteran, eczema was incurred in service. 38 U.S.C.A. 38 U.S.C.A. §§ 1101, 1110, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA 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, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO did provide the appellant with notice in January 2006 and March 2006 prior to the initial decision on the claims in April 2006. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the Veteran in the notice letters about the information and evidence that is necessary to substantiate his claims for service connection. Specifically, the January 2006 letter stated that the evidence must show that he had an injury in military service or a disease that began in, or was made worse during military service, or that there was an event in service that caused injury or disease; that he has a current physical or mental disability; and, that there is a relationship between his current disability and an injury, disease, or event in military service. That letter also advised him of the division of responsibilities in obtaining such evidence, and the March 2006 letter explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records are in the claims file and were reviewed by both the RO and the Board in connection with his claims. To date, he has not identified any other outstanding records that are pertinent to his claims for service connection. In carrying out the Board's January 2011 remand instructions, the RO scheduled the Veteran for VA examinations for his right hand and skin in February 2011. When the Veteran failed to report to the examinations, the RO attempted to locate a current address for the Veteran and rescheduled the examinations. In March 2011, the RO noted that the Veteran failed to report for the examinations for a second time. The first piece of correspondence returned back to VA was the January 2008 letter notifying the Veteran that his appeal was being certified to the Board. This letter was sent to the last known address of record, which was the address that was listed on the Veteran's March 2007 VA Form 9. Additionally, the returned envelope suggests that someone may have refused the actual mail delivery, as the post office administrator marked the envelope as having been refused. The record demonstrates that diligent efforts were undertaken by the RO in its attempts to ascertain the correct address of the Veteran. In fact, attempts were made to reach the Veteran at multiple different addresses that the RO located through an internal search. Never once did the Veteran or his representative notify VA to update his contact information. Furthermore, February 2011 and March 2011 Board letters demonstrate the Board's own attempts to reach the Veteran and resend to him a copy of the Board's decision and remand order dated in January 2011. The record reflects that the RO and the Board's multiple attempts to locate the Veteran were unsuccessful. In a November 2012 brief, the Veteran's representative asserted that there is no indication in the record that the Veteran's address was accurate, thereby making it unclear whether the Veteran actually received his notice of examinations. However, the Board notes the examination request specifically noted that the Veterans Benefit Administration (VBA) and the Veterans Health Administration (VHA) had different addresses for the Veteran and that the address would be verified before the notice was sent. The Appeals Management Center (AMC) also made an attempt to locate the Veteran in February 2011 following his failure to report and rescheduled him for the VA examinations. He was notified of the rescheduling at the address that was obtained during the AMC's search. However, he once again failed to report for the VA examination. Moreover, if the Veteran's last reported address is no longer current, it was his responsibility to notify VA. The law specifically provides that written VA notices are to be sent to "a claimant or payee at his or her latest address of record." 38 C.F.R. § 3.1(q). It bears emphasis that VA's duty to assist is not always a "one-way street." The appellant has an obligation to assist in the adjudication of his claim in notifying VA of any change in address. See Wood v Derwinski, 1 Vet. App, 190, 193 (1991); Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Hyson v. Brown, 5 Vet. App. 262, 265 (1993) (noting that the veteran bears the burden of keeping VA apprised of his whereabouts and that, where he does not, "there is no burden on the part of the VA to turn up heaven and earth to find him"). The Board acknowledges that the claims file does not contain the actual hard copy of the Veteran's notice of the February 2011 examinations. The United States Court of Appeals for Veterans Claims (the Court), however, has addressed this matter. In Kyhn v. Shinseki, 23 Vet. App. 335 (2010), after discussing VA's procedures for scheduling VA examinations and notifying veterans of the time, date, and location of the examinations, which does not include placing a "hard" copy of the original letter in the claims folder, the Court rejected the appellant's argument, holding that under the presumption of regularity, the Court will presume that a veteran received notice of the examination. The Court held, "[a]ccordingly, because the regular practices of VA do not include maintaining a hard copy of the veteran's notice of his/her scheduled VA examination, the absence of any such copy from the claims file cannot be used as evidence to demonstrate that that notice was not mailed." Id. at 339. Since the Veteran has frustrated the RO's attempt to obtain compliance with the terms of the January 2011 remand, complete compliance has been rendered impossible. Although the Secretary is required to comply with remand orders, it is substantial compliance, not absolute compliance, that is required. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation of due process when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). The Board, therefore, finds that the RO substantially complied with the remand directives and there is no need for another remand. Indeed, an additional remand would serve no useful purpose, as there is no indication that another attempt would locate the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). For all of these reasons, the Board concludes that VA has fulfilled its duty to assist the Veteran to the extent possible in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis 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, 1131. 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 disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain diseases, such as arthritis, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). I. Right Hand Disorder In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a right hand disorder. The Veteran's service treatment records show that, upon enlistment examination in August 1993, he was noted to have no bone or joint deformities or arthritis. Such records also show that the Veteran did sustain an injury to his right hand (thumb) in September 1995 for which he received treatment. In October 2000, the Veteran complained of numbness in his right arm and hand. It was noted that his index finger was the only finger affected. The examining physician also noted that the Veteran was a boxer and had injured his finger previously. X-rays were taken, and the Veteran was assessed as having right finger numbness with an unclear etiology. The physician indicated that he had a full range of motion in all joints, no deformities, and normal strength and dexterity, and his sensation was intact to light touch. He stated that such symptoms were probably due to early osteoarthritis. In November 2000, the Veteran complained again of numbness in his hands, but the physician noted that the October 2000 episode had resolved and that the Veteran was instructed not to lift weights. In February 2001, the Veteran complained of numbness in his right hand on his index finger and thumb. The examining physician indicated that this may be recurring paresthesia in both index fingers (right greater than left). The Veteran twice complained of numbness in his hand in May 2001, particularly his right index finger, and reported that this numbness progressed to his right leg. A February 2004 altitude chamber clearance indicated that the Veteran reported having no medical issues as he was cleared for further duty. Upon separation examination conducted in July 2005, the examining physician noted that the Veteran has right upper extremity paresthesia of the C8 dermatome. There was no diagnosis of a right hand disorder at that time though. Subsequent to service, the Veteran underwent a VA general medical examination in February 2006. The examiner noted the Veteran's assertions that his claimed disabilities began during service. The examiner considered the Veteran's report of symptomatology, such as an increase in right hand weakness and numbness in the right index finger. The examiner noted no reports of pain and no prior injuries to the hand. Upon physical examination, the Veteran demonstrated a slight grip weakness in his right hand (using left hand for comparison). The examiner noted no discerning abnormality and the Veteran demonstrated normal range of motion for all fingers. X-rays were conducted to rule out osteoarthritis. The examiner reviewed x-rays and assessed the Veteran as having a normal right hand. Although an injury to the right hand and treatment for a right hand condition was noted during service and upon separation from service, a subsequent examination and x-ray in February 2006 revealed no right hand disability, to include osteoarthritis. Thus, no arthritic disability is presumed to have been so incurred. See 38 C.F.R. § § 3.307(a), 3.309(a). Indeed, the Board notes that the adjudication of this issue has been made significantly more difficult by the Veteran's failure to report for a VA examination. He has not asserted any good cause for missing the most recent examination scheduled in February 2011, which was scheduled in order to determine whether the Veteran had any current right hand disability related to his military service. According to 38 C.F.R. § 3.655, in an original compensation claim, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim without good cause, the claim shall be rated based on the evidence of record. The VA examination and medical opinion may have provided evidence to support the Veteran's claim, but due to his failure to report, the claim must be adjudicated based on the available evidence of record. The available evidence does not show that the Veteran has had a current diagnosis of a right hand disorder at any point during the pendency of the appeal. Rather, the only evidence indicates that his right hand was normal upon examination. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Although the Veteran is competent to report his symptoms as to his right hand condition, lay persons are generally not competent to offer evidence which requires medical knowledge, such as opinions regarding medical causation or a diagnosis. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). While the Veteran believes that he has a right hand disorder that is related to his time in service, he is not medically qualified to prove a matter requiring medical expertise, with such expertise necessary to establish the presence of such a complicated medical condition. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Veteran has specifically asserted that he has osteoarthritis due to service, but such a diagnosis requires objective x-ray evidence, and a February 2006 VA x-ray and examination found his right hand to be normal. Based on the foregoing, the competent and credible evidence does not establish that the Veteran has a current diagnosis of a right hand disorder in this case. Nor is there any evidence relating a current diagnosis to his military service. Therefore, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a right hand disorder claimed as osteoarthritis. II. Skin Disorder In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for a skin disorder. The Veteran's August 1993 enlistment examination is negative for any indication of a skin condition; however, his service treatment records do show that the Veteran was treated for a skin rash in July 2000, which was assessed as tinea versicolor. He was also diagnosed and treated for an eczema flare-up in November 2003. Upon separation examination in July 2005, the Veteran listed eczema as a medical concern and indicated that he intended to seek VA disability compensation for that issue. The examining physician confirmed that the Veteran had eczema on his left calf upon separation. Shortly after his separation from service in September 2005, the Veteran filed his claim in January 2006 for service connection for a skin condition identified as eczema. He specifically noted in his claim that the disorder began in July 2000 and had continued since that time. The February 2006 VA general medical examination revealed that the Veteran did have a single patch of eczema on his right leg. Based on the foregoing, the medical evidence confirms that the Veteran had eczema in service and within five months after his separation. There is no reason to doubt the credibility of the Veteran's statements that he continued to have symptoms of that disorder between September 2005 and February 2006 other than a lack of contemporaneous medical evidence documenting such complaints. The Board may not reject the credibility of the Veteran's lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Moreover, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, for the reasons described above, the Board concludes that there is a reasonable doubt as to whether the Veteran's current eczema manifested during his period of service. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that service connection for eczema is warranted. ORDER Service connection for a right hand disorder, claimed as osteoarthritis of the right hand, is denied. Subject to the provisions governing the award of monetary benefits, service connection for eczema is granted. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs