Citation Nr: 1304823 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 09-13 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a skin rash, to include eczema dermatitis. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from July 1986 to February 1995, from March 2006 to November 2006, and from August 2010 to July 2011, with intervening periods of active duty for training and inactive duty training with the United States Navy Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. A notice of disagreement was received in June 2008, a statement of the case was issued in March 2009, and a substantive appeal was received in April 2009. In October 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. In October 2012, the Veteran submitted additional evidence to the Board accompanied by a waiver of initial review by the agency of original jurisdiction. See 38 C.F.R. § 20.1304 (2012). The Board further notes that the Veteran's claim was not readjudicated by the RO following the association of additional evidence, including a May 2012 VA examination report, with the record. However, because the issue on appeal is being granted, the Board finds no prejudice to the Veteran in considering this evidence in the first instance. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals evidence that is potentially relevant to the issue on appeal. This evidence has been considered in the following decision. FINDINGS OF FACT 1. The Veteran received vaccinations in preparation for his deployment to the Middle East while on inactive duty training. 2. The competent and probative evidence of record reflects that the Veteran has a current diagnosis of eczema dermatitis that is etiologically related to his military service. CONCLUSION OF LAW Service connection for PTSD is warranted. 38 U.S.C.A. §§ 101(21-23), 106, 1110, 1131, 5103, 5103A, 7104 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2012)). In light of the favorable decision as it relates to the issue of entitlement to service connection for a skin condition, any error by VA in complying with the requirements of VCAA is moot. II. Service Connection The Veteran has claimed entitlement to service connection for a skin condition affecting his entire body. His essential contention is that this condition was caused or aggravated by anthrax vaccinations that he received in March 2005, prior to his deployment to the Middle East in 2006. The Board notes, and the Veteran confirms, that the Veteran was not on active duty at the time of these vaccinations. He contends, however, that he was on active duty for training or inactive duty training when he received these vaccinations in preparation for being called up to active duty service. In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Active military, naval, or air service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21-24) (West 2002); 38 C.F.R. § 3.6 (2012). The term "active duty" includes full-time duty in the Armed Forces, other than active duty for training, and authorized travel to or from such duty or service. 38 U.S.C.A. § 101(21)(A),(E) (West 2002). The term "active duty for training" includes full-time duty in the Armed Forces performed by Reserves for training purposes and authorized travel to or from such duty. 38 U.S.C.A. § 101(22)(A) (West 2002). The term "inactive duty training" includes duty (other than full-time duty) prescribed for Reserves. 38 U.S.C.A. § 101(23)(A)(West 2002). It also includes special additional duties authorized for Reserves by an authority designated by the Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned. 38 U.S.C.A. § 101(23)(B)(West 2002). It follows from this that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training, or from injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. §§ 101, 106, 1110, 1131. Thus, with respect to his periods of active duty for training and inactive duty training, the evidentiary burden is on the appellant to show that he became disabled from an injury (or a disease in the case of active duty for training service) that was incurred in the line of duty. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. "A veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As noted above, the Veteran contends that he developed a rash as a result of anthrax vaccinations that he received in March 2005 on mobilization in preparation for his deployment to the Middle East. For purposes of determining the circumstances surrounding the Veteran's incurrence of this rash, the Board observes that vaccinations are considered to be "injuries" rather than "diseases." Thus, regardless of whether the Veteran's vaccinations are characterized as having occurred in the line of duty during active duty service, active duty for training, or inactive duty training, they are potentially eligible for service connection regardless of the type of active duty service the Veteran is determined to have had. In terms of pertinent medical history, the earliest potentially relevant evidence of record is the Veteran's October 2001 Navy Reserve entrance examination report. This report reflects that the Veteran's skin was found to be clinically normal at that time. The Veteran denied a history of, or current, skin diseases or adverse reaction to medication on a medical history report from that month. The earliest evidence of record reflecting that the Veteran complained of or sought treatment for a skin condition appears in private and in-service treatment records dated in March 2005. A March 7 private record reflects that the Veteran sought treatment for a rash on the arms, face, and "everywhere." He reported that he "[a]lways had eczema but this came up [after] Anthrax shot." The Veteran was diagnosed with pruritis. A March 13 service treatment record from the Pearl Harbor Acute Care Clinic at the Makalapa Branch Medical Clinic notes that the Veteran sought treatment for what was assessed to be dermatitis. A service treatment record from the Pearl Harbor Family Practice at the Makalapa Branch Medical Clinic reflects that the Veteran was treated for folliculitis on March 14. Prescription slips dated on March 28 from the private treatment provider reflect that the Veteran had been prescribed skin medication. A December 2005 private medical record notes that the Veteran sought treatment for eczema. On a February 2006 Navy Reserve medical history report, the Veteran reported a history of eczema. A March 2006 service treatment record entitled "Smallpox Vaccination Initial Note" the Veteran's history of eczema as a vaccine risk factor. Based on this information, the provider decided that the smallpox vaccination was contraindicated unless the Veteran was exposed. A July 2006 service treatment record reflects that the Veteran sought treatment for a rash on his face, which was assessed as being perioral dermatitis, eczematoid dermatitis, and skin color and pigmentation. It was noted that the Veteran had a one-month history of rash around the mouth. He was noted to have a long history of eczema and had been prescribed medicines by a civilian dermatologist. An August 2006 service treatment records from one of the Veteran's periods of active duty service reflects that he sought treatment for a hypopigmented perioral rash. The Veteran testified at his October 2012 Board hearing that he had not had skin problems until he started getting the vaccinations in 2005. He reported that this condition was not like eczema in that he had started breaking out on his whole body. His wife corroborated this testimony. In relevant part, the Veteran described his status at the time of his vaccinations as "premobilization, but at the time, we had what's called warning orders and ... we were just like in transition between coming off Reserve ... status to active duty status." He reported that with this deployment, they had to "get different shots and stuff done ... on our own time, during our own time and try to take off from work." The Veteran's representative opined that this period "could be more or less looked at as a drill period because if they did take off that time, they did get compensated for it ... [p]rior to those functional mobilization orders being issued." The Board observes that this evidence reflects that the Veteran did not have a skin rash disability at the time of, or prior to, his October 2001 entry into the Navy Reserve. The medical evidence that was produced between the Veteran's entrance into the Navy Reserve and the beginning of his March 2006 period of active duty service reflects that he first sought treatment for a skin rash in March 2005, following his receipt of anthrax immunizations, and that he expressly reported to his treatment providers that his symptoms did not begin until following these vaccinations. The Veteran's subsequent statements, including those made at his October 2012 Board hearing, are consistent with his medical records. The Board observes that, although the Veteran is a lay person, he is competent to report having first had a rash in March 2005. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board also finds these statements to be credible, as they are consistent with the medical evidence of record from that period. The Board finds that this evidence sufficiently establishes that the Veteran's skin rash disability began in March 2005. Next, the Board must determine whether the Veteran's disability began during a period of active naval service as defined above. In this case, because both the vaccinations and skin rash are claimed to have occurred in March 2005, the Board must establish the Veteran's duty status as of that month. First, the Board finds that the Veteran's vaccinations did not occur during a period of active duty service. As noted above, the Veteran served on active duty from July 1986 to February 1995, from March 2006 to November 2006, and from August 2010 to July 2011. There is no suggestion, and the Veteran does not contend, that he was on active duty in March 2005. Second, the Board has considered whether the Veteran was on active duty for training in March 2005. As noted above, the term "active duty for training" includes full-time duty in the Armed Forces performed by Reserves for training purposes and authorized travel to or from such duty. The Board finds that the Veteran was not on active duty for training in March 2005. His own testimony indicates that he was not on full-time duty at the time of his vaccinations, as he was in transition from coming off of Reserve status and had to take time off from (presumably civilian) work to receive his vaccinations. He described his status at the time as being "premobilization," and his representative likened it to "a drill period." These descriptions do not suggest full-time duty. Third, the Board has considered whether the Veteran's service in March 2005 can be classified as "inactive duty training." As noted above, the Veteran's hearing testimony suggests that he was engaged in civilian employment at the time. As noted above, however, the phrase "inactive duty training" includes "special additional duties authorized for Reserves ... and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned." 38 U.S.C.A. § 101(23)(B)(West 2002). In this case, the Veteran was required to obtain the vaccinations at issue in connection with the imminent mobilization of his unit as a requirement for his deployment to Kuwait. These vaccinations thus qualify as having occurred during a period of "inactive duty training" as defined by 38 U.S.C.A. § 101(23)(B). Having found that the Veteran was on inactive duty training at the time of the vaccination "injury" that led to his skin condition, the Board will now determine whether the Veteran has a current skin rash disability. In terms of a current disability, the Veteran underwent a VA examination in May 2012. The resulting examination report notes review of the claims file, to include the service treatment records. With respect to the Veteran's pertinent medical history, the examiner noted that the Veteran reported in 2005 that he developed a rash to his body a few days after receiving anthrax and other injections when preparing for deployment in Kuwait. He reported that the rash has been recurrent, and that it soon returned after completion of treatment. He described the rash as consisting of numerous tiny reddish bumps all over his body (including his chest, back, torso, legs, arms, neck, and face). He was treated with steroid creams and pills. The cream helped with the itching but did not resolve the rash, while the pills temporarily resolved the rash. The Veteran reported having recurrent outbreaks of the same type of rash, and that the rash and scars remained present to parts of the body. The examination report reflects that the examiner conducted a thorough examination of the Veteran and review of his claims file and, based on the above, diagnosed "eczema dermatitis." With respect to nexus, the examiner opined that the Veteran's eczema dermatitis is at least as likely as not related to the Gulf War and in-service treatment. The examiner explained that the Veteran's "skin condition is corroborated as having occurred during service without a cited diagnosis of pruritis rash (03/07/05, 03/28/05), dermatitis (03/13/05) eczema (12/21/05), eczamatoid dermatitis (07/14/06), consistent with current clinical presentation of eczema dermatitis." The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his of her knowledge and skill in analyzing the data, and his or her medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448- 9 (2000). The Board finds this opinion to be highly probative to the matter at hand. The examiner in this case clearly reviewed the claims folder, including the Veteran's service treatment records. The examiner's opinion is also based upon interview and examination of the Veteran. The examiner explained her diagnosis and the rationale behind her etiology opinion with specific reference to the facts of the Veteran's claim. For these reasons, the Board finds the May 2012 VA examination report to be highly probative in establishing a connection between the Veteran's military service and his diagnosed eczema dermatitis. In light of the above, the Board concludes that the Veteran received his vaccinations in the course of active naval service (specifically, inactive duty training) and that he has a current skin rash that is at least as likely as not etiologically related to the in-service vaccinations. In short, the Board finds that the competent and probative evidence of record establishes that the Veteran's current eczema dermatitis is etiologically linked to his military service, and specifically to the anthrax vaccinations that he was given during inactive duty training. The Board finds that the Veteran has presented credible and probative testimony concerning his duty status at the time of the vaccinations, and that this testimony is corroborated by the available service treatment records. Furthermore, a VA medical examiner has reviewed the evidence of record and interviewed and examined the Veteran and has offered an opinion and rationale linking the Veteran's eczema dermatitis to his military service. Therefore, service connection for eczema dermatitis is granted. ORDER Entitlement to service connection for a skin rash, diagnosed as eczema dermatitis, is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs