Citation Nr: 1304779 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 09-44 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a skin disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from August 1954 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. This case was previously before the Board in February 2012 when it was referred to the Veterans Health Administration (VHA) for a medical expert opinion. An opinion was obtained in March 2012 and a copy of this opinion was sent to the appellant and his representative in April 2012. This case was again before the Board in June 2012 when it was remanded for further development. The Board notes that in a RO rating decision dated in April 2008 the Veteran was granted entitlement to service connection for generalized anxiety disorder, with simple phobia, and was assigned an initial evaluation of 10 percent disabling, effective July 6, 2007. The Veteran filed a notice of disagreement with this issue. Subsequently, in a RO rating decision dated in November 2009 the Veteran was granted an evaluation of 30 percent disabling for generalized anxiety disorder, with simple phobia, effective July 6, 2007. The Veteran was issued a Statement of the Case regarding this issue on the same date. The Veteran did not file a substantive appeal regarding this issue and, therefore, the issue of entitlement to an initial evaluation in excess of 30 percent disabling for generalized anxiety disorder, with simple phobia, is not before the Board for appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's skin disorder is not related to active service. CONCLUSION OF LAW The Veteran's current skin disorder was not incurred or aggravated during service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties 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 or her 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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. Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in May 2008 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The letter also informed the Veteran that a disability rating and an effective date for the award of benefits would be assigned if service connection was awarded. 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 treatment 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 appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records. Treatment records from Iowa Lutheran Hospital have been obtained and associated with the claims file. An attempt was made to obtain records regarding the Veteran's treatment by Dr. A.N. at Iowa Lutheran Hospital and a response from Iowa Lutheran Hospital indicates that no records exist for the Veteran for the time period specified. The appellant was afforded VA medical examinations in May 2008 and September 2012, and a VA medical opinion was obtained in March 2012. The case was remanded by the Board in June 2012 for the Veteran to be afforded a VA medical examination and for readjudication. The Veteran was afforded a VA medical examination in February 2012 and the case was readjudicated in a supplemental statement of the case dated in December 2012. Therefore, based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's remand. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms. Savage v. Gober, 10 Vet. App. 488 (1997). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604(Fed.Cir.1996). The Veteran seeks entitlement to service connection for a skin disorder. The Veteran essentially contends that his current skin disorder is related to a skin disorder for which he received treatment in service. Service treatment records reveal that the Veteran was treated for a rash on his face in September 1968. In October 1968 the Veteran was treated again for a rash on his face that was described as a weeping ulcer on an erythematous base, quite pruritic. Upon examination at separation from service in May 1969 the Veteran was not noted to have any skin disorders. Post service treatment records reveal that the Veteran was treated with creams for eczema in August 2006. In February 2008 the Veteran was noted to have dry, mildly erythematous, slightly scaling lesion on the left temporal skin. The right forearm was noted to have a two centimeter erythematous scaling non purulent lesion. A March 2008 treatment note reveals that the Veteran had reported scaly areas on the face for about a year and the right arm for two to three years. It was noted at that time that there was no prior treatment. In November 2008 the Veteran developed a rash due to an allergic reaction. In a statement dated in August 2007 the Veteran reported that when he was discharged from service he had some kind of eczema on his face. A civilian doctor was noted to have sent him to Iowa Lutheran Hospital where they took scrapings which were placed in a petri dish and subsequently grew. He reported that he was cured after taking some pills. The Veteran stated that he believed that he caught the condition in Malta while on the U.S.S. Forrestal. In a statement dated in May 2008, the Veteran's spouse reported that when he left the U.S.S. Forrestal she was shocked to see that his face was covered in some kind of rash. She reported that it looked terrible and that it had spread all over even to his ears. The Veteran's spouse reported that the Veteran told her that he had gone to sick bay several times and that they had told him to wash often, after which the rash spread farther. Subsequently, she reported that when the Veteran asked whether he should keep the rash dry, he was told to do so, and the rash spread even farther. When he was discharged the rash was reported to have spread to his arms and legs. The Veteran's spouse indicated that a culture of the rash indicated that it was eczema and medication was used to cure the Veteran in a very short time. In a statement dated in May 2008 the Veteran reported that he first contracted something (eczema) on the left side of the face while serving aboard the U.S.S. Forrestal. First he was told to wash his face with soap and water. However, that only spread the rash. Then he was told to stop the washing and to use an electric razor. The rash spread on both sides of his face, left leg, and after discharged it headed toward his genitals. He reported that he saw a Dr. A.N. who sent him to Iowa Lutheran Hospital where they scrapped the left leg, face, and arm. He was prescribed a pill that cleared the rash. The Veteran has submitted statements indicating that his wife and son never caught any skin disorder from him and that his shipmates never caught anything as he had his own helmet and communications equipment. Photographs from the Veteran's period of service have been submitted that show what appear to be sores on the Veteran's face. In May 2008 the Veteran was afforded a VA skin examination. The examiner provided a review of the service treatment records and indicated that the post service treatment records revealed that the Veteran was treated for actinic keratoses on the left temple, cheek, and right forearm in March 2008. The Veteran reported that he developed weeping, fluid filled lesions on his left cheek, arm and thigh while in the Navy in 1968 to 1969. He was treated in sick bay without relief for dermatitis. The Veteran was noted to have been treated by a local private physician after separation from service and to have been sent to a private hospital where they performed scrapings of the leg, face, and arm. The diagnosis was unknown and the Veteran was placed on a large pill for an undetermined number of days with resolution. The Veteran stated that he had scaring on his cheek which resolved. The Veteran was noted to have reported that he had not had a reoccurrence since that time. Upon examination the Veteran was noted to have skin that was warm, dry, with good turgor, anicteric, no rashes, no bruises, and the skin lesions had resolved and were no longer visible. After examination the Veteran was diagnosed with dermatitis, unknown etiology, suspect impetigo. The examiner noted that the rash as indicated in the medical records would be consistent with impetigo as it resolved following treatment with oral antibiotics and did not return. The lesions were indicated to be typical as was the distribution. It was reported to have been too wide spread for a diagnosis of Herpes Zoster. The examiner noted that there were no private medical records available indicating results of lab testing and diagnosis. It was noted that the rash that was present following discharge, in 1969, may indicate an entirely different rash as impetigo is easily recognized by its appearance. No rash was noted on the exit examination in May 1969. The examiner stated that the rash was not eczema and that although the Veteran referred to the rash as eczema the rash as described in the medical records and by the Veteran was inconsistent with this type of dermatitis. The Board notes that this VA opinion is not adequate as it referenced treatment notes that were subsequently identified as misfiled in the claims file. In a treatment note, dated in November 2008, the Veteran was noted to have had an allergic rash due to amoxicillin. In a statement dated in February 2009 the Veteran's son reported that his father had open sores all over his face and neck when he returned from his job in the Navy. In December 2009 the Veteran was noted to have a rash mostly on the knees, elbow and buttocks. The Veteran reported in February 2010 that he has a rash that itches. He indicated that he scratches the rash until it bleeds and scabs over. In another treatment note dated in February 2010 the Veteran was noted to have a rash on the knees since the prior summer. The Veteran attributed the rash to gardening and contact with allergenic plant material. Physical examination revealed violaceous patches on the elbows and knees. The assessment was psoriasis. In March 2010 the Veteran was reported to have a rash over the knee that was better with a new cream. In a follow up treatment note dated in March 2010 the Veteran was treated for psoriasis. He was last seen for psoriasis one month prior and was started on a cream. The provider noted much improvement though still a small amount left. The Veteran was noted to have a history of actinic keratoses. Physical examination revealed a few scattered five to ten millimeter violaceous scaly plaques on the knees bilaterally with the left greater than the right. There were no actinic lesions observed. The Veteran was assessed with psoriasis vulgaris. In October 2010 the Veteran had a few scattered one to two centimeter salmon colored plaques on the periumbilical skin and on the knees and shins. In April 2011 on the Veteran's left temple there were two erythematous macules with adherent scale. There was a salmon colored thin plaque with overlying silvery scale on the right lower leg. There were erythematous macules with adherent scale times two on the left temple. There were no other skin lesions of concern. In February 2011 and November 2011 the Veteran's skin was negative for rashes, ulceration, and abnormal growth. In another treatment note dated in November 2011 the Veteran's skin was noted to be warm, dry and clear with no suspicious lesions. In a dermatology note dated in December 2011 the Veteran was noted to report that he tans and burns when exposed to the sun. He reported that he had skin cancer but was uncertain of the type. In another dermatology treatment note dated in December 2011 the Veteran was noted to have minimal plaque type psoriasis. In February 2012 the Veteran's skin was negative for rashes, ulceration, and abnormal growth. In March 2012 a VA medical opinion was obtained. The medical expert indicated that the Veteran's lesions were scrapped for diagnosis; however, this would be inconsistent with eczema. It was noted that a skin scrapping would be taken if an infectious cause was suspected but would be negative with eczema. The expert reported that if eczema was suspected then a skin biopsy would have been the better tool. The expert stated that if the scrapping provided a diagnosis then it was most likely an infectious process such as folliculitis or impetigo. The expert noted that the disease was too widespread and occurred over too long a period of time to be consistent with herpes zoster. The expert noted that the Veteran indicated that he was treated with a limited course of a pill but that no pill taken for a limited duration effectively treats eczema. The expert stated that pills used for treatment of severe eczema would be immunosuppressive agents that would require blood testing for monitoring, and the Veteran did not report any lab monitoring while on the medication. The expert noted that it was most likely that the short course of medication was antibiotics which would successfully treat acne, folliculitis, or impetigo. The expert reported that the lesions were reported to spread with shaving which would not occur with eczema but can occur with folliculitis or impetigo. It was noted that reported itching is common in both eczema and folliculitis. The Veteran was noted to indicate that the condition did not spread to others living and working in close quarters. The expert stated that folliculitis unlike impetigo was noted to be caused most often by bacteria but often did not spread between family members. Pictures provided by the Veteran were noted to show acneiform, not eczematous, lesions which would be consistent with folliculitis or excoriated acne. The open sores noted by the Veteran's son upon the Veteran's separation from service were noted to likely be secondary lesions from scratching, shaving or otherwise manipulating the lesions. The Veteran's history and photographs were reported to fit well with a diagnosis of folliculitis. The expert stated that it did not seem likely at all that eczema had its onset during, or was exacerbated by military service; however, based upon the photographs and personal history, it was at least as likely as not that there was onset or exacerbation of folliculitis while serving in the Navy. The Board notes that this VA opinion is not adequate as subsequently misfiled documents were identified in the claims file that may have influenced the opinion. In September 2012 the Veteran was afforded a VA C&P skin examination. The Veteran was noted to have a diagnosis of eczema. The Veteran reported that his skin condition began in the Navy in 1967 or 1968 when he was at Malta in the Mediterranean Sea. The rash was reported to begin as a scabby weeping spot on his chin that had a whitish, clear discharge. From his chin it spread to the left side of his face and then to the lobe of the left ear. He was noted to have been seen by a chief corpsman who did not dispense medication but instructed him to wash his face three times daily. That action seemed to make it worse. It improved with stopping frequent washing and also using an electric razor. He continued to have several spots on his left arm and mid left calf afterwards that continued past the time of discharge from service. He was seen by his family doctor after service who referred him to Lutheran Hospital in Des Moines, Iowa for some skin scrapings. The Veteran was subsequently treated with an oral medication, pill taken at least once daily for a period of three to four weeks. The Veteran stated that the rash went away with the treatment. He was never told what the condition was at any time and was not told that he had eczema. The Veteran denied having eczema or a history of ichthyosis as a child or prior to service. He did not believe that he had any residual condition from the rash in service save for a possible scar on his left ear lobe that he cannot see. He did not have pain or other problems of his external left ear. He was noted to have had dryness of the skin of his feet with some itching and irritated area on the back of the heels of his feet and a scaly and dry appearance of the feet in recent years. He had not been given a diagnosis of the condition and had not used any medication or moisturizer for the feet and ankles. He stated that the condition of the feet and ankles was not present during military service. The only time he had seen a dermatologist in recent years was to have a freezing of some pre-cancerous spots on the right forearm. The Veteran's skin conditions were noted to not cause scarring or disfigurement of the head, face, or neck. The Veteran did not have any benign or malignant skin neoplasms. He did not have any systemic manifestations due to any skin diseases. The Veteran was not treated with oral or topical medications in the prior 12 months for any skin conditions. The Veteran was noted to not have had any treatments or procedures other than systemic or topical medications in the prior 12 months for exfoliative dermatitis or papulosquamouse disorders. The Veteran had not had any debilitating or non-debilitating episodes in the prior 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The Veteran's eczema was noted to cover less than five percent of the total body area and none of the exposed area. There was some creasing seen on the ear lobes bilaterally but no evidence of scarring was seen. There were dry patches with skin thickening and pin point areas on the back of the heel, ankle area with coverage of about one percent of the total skin area. Photographs were taken. There was general dryness and scaled appearance of the skin of the feet. There was no impact of the Veteran's skin condition on his ability to work. The examiner reported that pictures were taken during the examination and were submitted for the claims file. The examiner rendered the opinion that the Veteran's condition of eczema is not at least as likely caused by injury, illness, or event during military service. The rationale provide was that the description and pictures submitted by the Veteran are most consistent with a localized surface bacterial cellulitis or impetigo that is spread by contact of infective material from the hands and local persistence on the face from the repeated abrasion of washing and shaving with a razor. The face was noted to get better with avoidance of washing and with using an electric razor instead of a blade. A review of the service treatment records from September to October 1968 noted that he was treated with anti-fungal medication which would not have been effective. The veteran was noted to report resolution of the condition with pill treatment after service, most likely an antibiotic. The examiner noted that the Veteran stated that he had never been told what his skin condition was called and that he has called it eczema on his own. The Veteran denied having an active skin condition at the time of the examination; however, he thought he might have a residual of a small non-tender scar on his left ear lobe from his service related skin condition. The Veteran reported dryness and itchy spots on the back of his heels and ankles over the prior several years that he stated was not part of the skin condition that he had during service. The Veteran denied a history of ichthyosis or other heritable skin condition and indicated that he was not under active treatment for any skin condition. Physical examination was notable for dry areas with excoriation on the back of the Veteran's heels and ankles below the sock line consistent with dry eczema. The skin had a dry scaly appearance that was restricted to the feet and ankles. There was no appearance of an active cellulitis or scars seen on examination. No tests were ordered as none was believed to be necessary. The Board finds that entitlement to service connection for a skin disorder is not warranted. Service treatment records reveal the Veteran complained of and was treated for a skin condition while in service. However, post service treatment records reveal that the Veteran's in service skin condition resolved and that the Veteran's current eczema is not related to the Veteran's in service skin condition. The Board notes that the examination in May 2008 and the medical opinion dated in March 2012 are inadequate as documents that were misfiled in the Veteran's claims file were subsequently identified. After thorough examination in September 2012 the examiner rendered the opinion that the Veteran's in service skin condition was most consistent with a localized surface bacterial cellulitis or impetigo. The examiner based his opinion, in part on the ineffective nature of the Veteran's treatment which included first washing, then avoidance of washing and using an electric razor, and anti-fungal creams. The examiner drew further support for the conclusions based on the reported successful treatment of the Veteran's skin condition with a pill after service. The Board notes that the Veteran reported that he did not have a recurrence of the skin condition that he had in service and in May 2008 an examiner noted that the Veteran's in service skin condition was consistent with impetigo because it resolved with oral antibiotics and did not return. During the period on appeal the Veteran was diagnosed with actinic keratoses and eczema. The examiner in September 2012 reported that the diagnostic tests performed and the treatment provided for the Veteran's skin disability at that time was not consistent with the Veteran's currently diagnosed eczema. As the claims file reveals that the Veteran's in service skin condition resolved and as the Veteran's current skin disability is not related to the Veteran's active service or the Veteran's in service skin condition, entitlement to service connection for a skin disorder is denied. ORDER Entitlement to service connection for a skin disorder is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs