Citation Nr: 1301759 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-34 928 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a claimed skin disorder. 2. Entitlement to service connection for a claimed innocently acquired psychiatric disorder, to include depression and schizophrenia. 3. Entitlement to service connection for claimed hepatitis C. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Shana Z. Siesser, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from May 1973 to April 1974. He also served in the United States Army from May 7, 1976 to September 1, 1976. This service from May 7, 1976 through September 1, 2976 was voided due to fraudulent enlistment and is not for consideration in this appeal. This matter comes before the Board of Veterans' Appeals (Board) from a February 2010 rating decision of the RO. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issues of service connection for hepatitis C and an innocently acquired psychiatric disorder are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The currently demonstrated dermatological disorder manifested by hyperpigmented papules with granulomatous inflammation and striae of the thighs is not shown to be causally related of skin manifestations exhibited by the Veteran during his period of active service in 1973 and 1974. 2. The Veteran is not found to have presented credible lay assertions sufficient to establish a continuity of symptomatology referable to his having a chronic skin disorder that began during his period of active service in 1973 and 1974. CONCLUSION OF LAW The Veteran's skin disability manifested by hyperpigmented papules with granulomatous inflammation and striae of the thighs is not due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; (3) that the claimant is expected to provide; and (4) VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In compliance with the duty to notify the Veteran of what information would substantiate his claim, the Veteran was advised that VA used a Schedule for Rating Disabilities (Schedule) that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran dated in October 2009, January 2010 and February 2010 that fully addressed all notice elements. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service treatment records, VA outpatient treatment records and private medical records. Additionally, the Veteran was afforded a VA examination in January 2010. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate that any additional existing evidence necessary for adjudication of the claim that has not been obtained. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection for a skin disorder The Veteran contends that his current skin disorder had its clinical onset during his active service. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2011); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is 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); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). 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; 38 C.F.R. § 3.303(b). Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury was incurred in service alone is not enough. There must be chronic disability resulting from that injury. 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). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Board initially notes that service is valid unless the enlistment is voided by the service department. 38 C.F.R. § 3.14. Where an enlistment is voided by the service department because the person did not have legal capacity to contract for a reason other than minority (as in the case of an insane person) or because the enlistment was prohibited by statute (a deserter or person convicted of a felony), benefits may not be paid based on that service even though a disability was incurred during such service. An undesirable discharge by reason of the fraudulent enlistment voids the enlistment from the beginning. 38 C.F.R. § 3.14(b). According to an August 1976 recommendation, the Department of the Army recommended that the Veteran be released from military control and his enlistment be voided for the period from May 7, 1976 through September 1, 1976. The character of such service was "not applicable," and the narrative reason for separation given was "misconduct fraudulent entry." The Veteran's enlistment contract entered into on May 7, 1976 was voided due to fraudulent entry. Therefore, no benefits can be paid based on this period. See id. The Veteran's report of medical history upon entry into service in February 1973 was negative for any notations of a skin disorder. A clinical evaluation of his skin was normal. A March 1974 record showed that the Veteran had a rash on his face and upper trunk. Poison ivy was the suspected cause. The Veteran was instructed to avoid gardening. In April 1974, the Veteran was treated for pseudofolliculitis. At the time of separation examination in February 1974, the Veteran denied having or ever having skin disease. A clinical evaluation of his skin was normal. The treatment records from the Veteran's period of voided service in 1976 showed treatment for eczematous patches, a rash and boils. The recent post-service treatment records from November 2009 showed that the Veteran was treated for pink linear lesions on his thighs. He was also treated for papules on his forehead, which were diagnosed as granulomatous inflammation, after a biopsy. The Veteran underwent a VA examination in January 2010. The examiner reviewed the claims file, including the 1976 treatment records showing skin complaints and treatment during this period of voided service. The examiner performed an examination of the Veteran and diagnosed hyperpigmented papules with granulomatous inflammation and striae of the thighs consistent with stretch marks. The VA examiner opined that it was less likely than not that the Veteran's current dermatologic condition was the same for which he was treated in 1976. Specifically, he stated that none of the scars or papules that were seen during the examination resembled the lesions described in the 1976 treatment records. Accordingly, on this record, the Board finds that service connection for a skin disorder is not warranted. While the records from service in 1973 and 1974 showed findings of possible poison ivy and pseudofolliculitis, the Veteran is currently diagnosed with hyperpigmented papules with granulomatous inflammation and striae of the thighs. Moreover, the Veteran denied having a skin disorder at the time of separation from this period of service in 1974, and the examination at that time noted that his skin was normal. To the extent that there was evidence of a rash and boils in 1976 during the Veteran's period of voided service, they cannot be considered for the purpose of establishing service connection. Finally, the VA examiner in January 2010 opined that the Veteran's currently diagnosed disorder was not consistent with the manifestations described in the 1976 treatment records. In addition, there is no other medical evidence showing of a skin disorder until the record noting dry skin in 1993. This represents a prolonged period without medical complaint that can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service that resulted in chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). To the extent that the Veteran asserts having ongoing skin problems since service, these statements are not found to be credible for the purpose of establishing a continuity of symptomatology following service. 38 C.F.R. § 3.303(b); Layno v. Brown, 6 Vet. App. 465 (1994); see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Significantly, on this record, the Veteran is shown to have denied having a skin problem at the time of his separation examination in February 1974, as well as in connection with his report of medical history prepared in May 1976. Thus, the Veteran's current lay assertions are found to be inconsistent with earlier and more reliable information provided by the Veteran during service. Finally, the Veteran has submitted no medical evidence to support his lay assertions that any current skin disability had its clinical onset during his period of actual service in 1973 and 1974. In sum, as the preponderance of the evidence is against the claim, service connection must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-57. ORDER Service connection for a skin disorder is denied. REMAND Regarding the Veteran's claim of service connection for hepatitis C, the Veterans Benefits Administration (VBA) has stated that the risk factors for hepatitis C include high-risk sexual activity. VBA Fast Letter 98-110 (Nov. 30, 1998). The Board notes that there was no test available to detect the presence of hepatitis C until 1989. Id. The Veteran's service treatment records are silent as to any diagnoses of or treatment for hepatitis C. However, his service treatment records show a diagnosis of gonorrhea in January 1974. VA is obligated to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As VA has not afforded the Veteran an examination, a remand is necessary prior to adjudication of this claim. Regarding the claim of service connection for an innocently acquired psychiatric disorder, the Veteran initially filed claims of service connection for schizophrenia, depression and posttraumatic stress disorder (PTSD). In accordance with the Court's holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009), a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim. Therefore, to the extent that the Veteran did not specifically appeal the denial of service connection for PTSD, it is necessary that a VA examination report discuss all relevant diagnoses. In December 2009, the Veteran underwent a VA examination. The examiner opined that the onset of the Veteran's schizophrenia appeared to be eight years after separation from service and was less likely than not incurred in or a result of service. However, the examiner did not address whether the Veteran had a diagnosis of depression and/or PTSD. An April 1974 service treatment record shows the Veteran was depressed and unable to sleep. A post-service treatment records show a diagnosis of depression. The statutory duty to assist requires a thorough and contemporaneous medical examination, especially in cases where there exists ambiguities and uncertainties relative to the claimed disorder, the Board must remand the claim for clarification. See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995); see 38 C.F.R. § 4.2 (if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). Accordingly, these remaining matters are REMANDED to the RO for the following action: 1. The RO should take appropriate steps to contact the Veteran to have him identify any VA or non-VA medical treatment for hepatitis C and any acquired psychiatric disorder that is not evidenced by the current record. The Veteran must be provided with the necessary authorizations for the release of any treatment records not currently on file. The RO must then obtain copies of any outstanding records and associate them with the claims folder. The Veteran also should be notified that he may submit medical evidence or treatment in support of his claim. 2. After the passage of a reasonable amount of time, the RO then should have the Veteran scheduled for VA examinations to determine the nature and likely etiology of the claimed hepatitis C and innocently acquired psychiatric disorder. In the examinations, the following considerations will govern: The claims folder, and a copy of this remand, will be made available to the examiner who must acknowledge such receipt and review in any report generated as a result of this remand. The examiner(s) must conduct any appropriate interviews and clinical testing to respond to the inquiries. The examiner must state the medical and factual basis or bases for any opinions rendered based on his or her clinical experience, medical expertise, and established medical principles, and with identification of the evidence of record. If the examiner finds he or she cannot provide a requested finding without resort to pure speculation, he must provide a complete rationale for any such opinion. He must indicate whether his or her inability to provide such an opinion is a result of such factors as: i) an intractable lack of sufficient factual information, (ii) a lack of sufficient specialization or expertise on his or her part, or (iii) a lack of sufficient knowledge or information in the medical community at large under the current state of the art of medical care and research. Regarding the claimed hepatitis C, the appropriate examiner must respond to the following inquiries: Does the Veteran have a diagnosis of hepatitis C that at least as likely as not is etiologically related to any risk factor or incident of his period of service, including any risk factor consistent with his diagnosis of gonorrhea reported in service? Regarding the claimed innocently acquired psychiatric disorder, the RO must return the claims file to the examiner who conducted the December 2009 VA examination. If that examiner is unavailable, the RO must afford the Veteran an examination with an appropriately qualified medical professional who must respond to the inquiries below: Does the Veteran have another innocently acquired psychiatric disorder, including a diagnosis of PTSD or depression, that at least as likely as not had its clinical onset during to his period of service, including the complaint of depression noted in April 1974, or due to a stressor event during his period of service in 1973 or 1974. 3. Thereafter, the RO must review the claims files and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 4. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all of the evidence of record. If any of the benefits sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs