Citation Nr: 1303323 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 10-40 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for eczema. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from October 1962 to October 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April, the Veteran offered testimony at a Travel Board hearing before the undersigned Veterans Law Judge at the RO. When the case was before the Board in July 2011, it was remanded to the Appeals Management Center (AMC) for additional development. That development has been accomplished, and the claim has been returned to the Board for appellate review. FINDINGS OF FACT 1. The Veteran's eczema pre-existed his military service. 2. The competent medical evidence indicates that there was no worsening of the Veteran's pre-existing eczema beyond its natural progression during his military service. CONCLUSIONS OF LAW 1. The Veteran is not entitled to the presumption of soundness upon entry into service with regard to his eczema. 38 U.S.C.A. §§ 1111, 1132 (West 2002); 38 C.F.R. § 3.304 (2012); Wagner v. Principi, 370 F. 3d. 1089 (Fed. Cir. 2004). 2. The Veteran's pre-existing eczema was not aggravated by service; therefore, service connection for eczema is not warranted. 38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2012); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in October 2007 and July 2011, the RO and the AMC satisfied VA's duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Specifically, the RO/AMC notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The letters also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claims were subsequently readjudicated in a January 2012 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the statement of the case). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. As the Board will discuss in detail in its analysis below, the Veteran was provided with VA examinations throughout the appeal period. While the Board found that the December 2007 VA examination report was inadequate inasmuch as it did not contain an opinion as to aggravation of the pre-existing eczema, the Veteran was afforded another examination in August 2011. The examination report reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board, therefore, concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim and has presented testimony in a hearing before the undersigned Veterans Law Judge. Therefore, the duties to notify and assist have been met. Legal Criteria In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 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, 8 (1999). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The Court has held, however, that this presumption attaches only where there has been an entrance examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). In VAOPGCPREC 3-2003, VA's General Counsel noted that "[u]nder the language of [38 U.S.C. § 1111 ], VA's burden of showing that the condition was not aggravated by service is conditioned only upon a predicate showing that the condition in question was not noted at entry into service." Cases in which the condition is noted on entrance are, however, still governed by the presumption of aggravation contained in 38 U.S.C. § 1153 (as opposed to that applicable under 38 U.S.C. § 1111 where the complained of condition was not noted on entrance into service). This statute provides that a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Discussion and Analysis The Veteran's service treatment records include a September 1962 enlistment examination report which documents that the Veteran self-reported having a pre-existing eczema condition since November 1961. Subsequent service treatment records reflect frequently recurring treatment for generalized body rashes diagnosed as eczema. A January 1966 dermatology clinic note records the Veteran's statement that he had eczema since childhood. The post-service treatment records also show ongoing treatment for eczema. The Veteran was afforded a December 2007 VA examination at which the Veteran reported a history of eczema since childhood. The VA examiner did not see any significant activity of eczema but observed three hyperpigmented patches on the Veteran's left leg which she believed were representative of residual episodes of eczema. In concluding her report, the examiner opined that the Veteran's eczema at the time of the examination was likely the same condition that affected the Veteran during his active duty service. She did not, however, offer an opinion as to whether it was as likely as not that the Veteran's active duty service aggravated his eczema disorder which pre-existed his active duty service. At his Travel Board hearing, the Veteran asserted, through his representative, that the presumption of soundness should apply in his case. Although the Veteran admitted that he reported at his enlistment examination that he had treated for eczema since age five and in 1961, he argued that no documentation exists which establishes such pre-service treatment. Nonetheless, the provisions of 38 C.F.R. § 3.304(b) do not automatically invoke the presumption of soundness where actual documentation of a pre-existing disorder does not exist. Rather, the regulation merely states that '[t]he veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service..." 38 C.F.R. § 3.304(b). Under 38 C.F.R. § 3.304(b)(1), the history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. Such determinations are to be based upon thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof. While the Veteran asserts on one hand that there is no documentation showing the existence of eczema prior to service, he does not deny on the other hand that he reported pre-service treatment for eczema from the age of five up until 1961. Moreover, given the apparent intermittent nature of the Veteran's eczema, as documented in his service treatment and post-service treatment records, it appears consistent with the evidence that the Veteran's pre-existing eczema was simply not manifest to an observable degree at the time of his September 1962 enlistment examination. Under the circumstances, and in view of the foregoing principles expressed under 38 C.F.R. § 3.304(b), the Board finds that the Veteran's eczema did pre-exist his active duty service. Accordingly, the Board does not find that the presumption of soundness applies in this case. The issue of the Veteran's entitlement to service connection for eczema thus turns upon whether his pre-existing eczema was aggravated by his active duty service. 38 C.F.R. § 3.303(a). As discussed above, the December 2007 VA examination report does not offer an opinion as to whether it is as likely as not that the Veteran's pre-existing eczema disorder was aggravated by his active duty service. In this regard, the Veteran testified at his Travel Board hearing that the khaki material from his service uniform and the burlap material from packs and other equipment irritated his skin and caused his eczema to worsen. As such, in the July 2011 Remand, the Board directed that the Veteran undergo a new VA examination determine the nature and etiology of his eczema disorder and to determine whether it was aggravated by service. The Veteran was afforded such an examination in August 2011. The examination report reflects that the examining physician reviewed the claims folder and examined the Veteran. The Veteran's personal medical history is noted, including his report that he has had eczema since childhood and that he has episodes of worsening, with individual spots coming and going, usually related to some kind of activity. He had used topical prescription creams in the past but now uses Eucerin. He last used a topical prescription, clobetasol, in March 2011. He usually has the problem on his legs, feet, arms and top of head. It gets worse if he wears certain jeans. He did not feel that he had significant worsening of the symptoms after his military service. In examination, there was no abnormal area compatible with eczema. The impression was eczema which predated his entrance into service but was temporarily aggravated beyond the natural progression of that disease by the kaki and burlap materials worn by the Veteran during his active military service and has since flared down to the normal progression of the disease. The examiner added that eczema is a condition of flare-ups and flares are often times due to unknown etiology and with no specific cure. After review of the evidence of record, the Board finds that the evidence clearly and unmistakably demonstrates that this disability was not aggravated by active service. The presumption of aggravation is generally triggered by evidence that a pre-existing disability has undergone an increase in severity in service. See Maxson v. West, 12 Vet. App. 453 (1999); see also Sondel v. West, 13 Vet. App. 213 (1999). The August 2011 VA examiner observed that the evidence showed no permanent aggravation of this eczema by active military service. The Board finds that the VA medical opinion is probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. Accordingly, the opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has submitted no competent evidence contrary to the examination findings cited above. The Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his claim; he has not done so. See 38 U.S.C.A. § 5107(a) (West 2002) (noting it is a claimant's responsibility to support a claim for VA benefits). The Board notes that the Veteran is competent to note what he experiences, including pain and other observable lay symptoms. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). To the extent that the question as to whether a quiescent skin disability that pre-existed service was aggravated in service is a complex medical question, appropriate expertise is required to address it. There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render such a finding. To the extent that it is capable of lay observation, the record does not show a worsening of symptoms since service, and the Veteran in fact admitted that the condition did not worsen in his August 2011 examination. Moreover, the Veteran's denial that he had eczema prior to service is not credible because the record is replete with reference to his self-reported history of eczema since childhood. In both sets of circumstances, the Board gives more weight to the August 2011 VA examiner's findings as it was provided by a licensed physician and again is fully supported by the documented record. The weight of the evidence is against the Veteran's claim and the benefit of the doubt provision does not apply. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 [CONTINUED ON NEXT PAGE] (1990). Accordingly, the Board concludes that service connection for eczema is not warranted. ORDER Service connection for eczema is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs