Citation Nr: 1307726 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 10-06 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a skin disorder (claimed as a body rash). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from September 1976 to December 1979. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The record reflects that, in a February 2006 rating decision, the RO denied the Veteran's claim for service connection for a body rash. He submitted a timely notice of disagreement in February 2007 and, in March 2008, the RO issued a statement of the case as to the matter. In April 2008, the Veteran submitted additional evidence pertinent to the issue on appeal. In February 2012, the Veteran testified during a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In a September 2012 decision, the Board concluded that the February 2006 rating decision was not final, as new and material evidence was received with respect to the Veteran's claim for service connection for a skin disorder. At that time, the Board remanded his claim to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development. FINDING OF FACT The evidence of record is at least in equipoise as to whether a skin disorder, currently diagnosed as psoriasis vulgaris, had its onset in service or is otherwise related to the Veteran's military service. CONCLUSION OF LAW The criteria for service connection for a skin disorder (claimed as a body rash) have been met. 38 U.S.C.A. §§ 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. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act (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). In Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2009) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, this Veterans Law Judge elicited testimony as to the history of symptoms and treatment for the disorder in question, and in this manner indicated to the Veteran that evidence tending to show that the pertinent disability was related to active duty would be helpful in establishing the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2); they have not identified any prejudice in the conduct of the Board hearing. Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in October 2005 and September 2012 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. A November 2009 letter provided notice as to how VA assigns an appropriate disability rating or effective date. Moreover, Dingess notice was included in an March 2010 letter, though this correspondence inaccurately explained that new and material evidence was required in this case. Thus, to the extent that Dingess notice is deemed invalid as being included in a letter mischaracterizing the nature of the claim on appeal, as the instant decision denies the claim of service connection no rating percentage or effective date will be assigned. Accordingly, any Dingess deficiency is deemed moot. Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him 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. All reasonably identified and available VA and non-VA medical records were obtained. A review of the Veteran's Virtual VA electronic file reveals VA treatment records, dated from December 2009 to August 2012, that were also considered in the claim on appeal. As noted above, in September 2012, the Board remanded the Veteran's case to the RO for further development that included scheduling him for a VA examination and obtaining outstanding medical records from the VA Monterey clinic and any other VA treating facility dated since December 2009. There has been substantial compliance with the Board's remand as, in October 2012, the Veteran underwent VA examination and VA medical records dated to August 2012 were obtained. The October 2012 VA examination report, with another examiner's clarifying note, is adequate for rating purposes as the claims file was reviewed, the examiner reviewed the pertinent history, examined the Veteran, provided clinical findings and diagnoses, and offered an etiological opinion with a rationale from which the Board can reach a fair determination. The records satisfy 38 C.F.R. § 3.326 (2012). 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 claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, 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). I. Factual Background and Legal Analysis The Board has thoroughly reviewed the record in conjunction with this case that includes VA and non VA medical records and examination reports, dated from 2005 to 2012, written statements from the Veteran's friends and relatives, and his lay statements and oral testimony in support of his claim. Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Under 38 U.S.C.A. § 1131 and 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). But see Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013) (to the effect that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). Nevertheless, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, case law has established that 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, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is a direct service connection theory of entitlement. Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. The Veteran asserts that he has a skin disorder, claimed as a body rash, that had its onset during active military service. The Board notes that whether or not the Veteran experienced a chronic body rash is a fact capable of lay observation. See Jandreau v. Nicholson, 492 F. 3d. at 1377. The Veteran further reports that he had an "itchy feeling" around the boot strap area of his legs in service and mentioned it to medical personnel during treatment for warts in service. See signed statement received in February 2013 and February 2012 Board hearing testimony. He was told he had very dry skin and given a sample tube of topical ointment that soothed the rash but it never disappeared. The Veteran testified that he returned to the clinic for additional ointment and received more small tubes but did not recall anything being written down. See Board hearing transcript at page 4. He initially sought private medical treatment for his rash about one year after discharge but was unable to obtain those treatment records. Id. at 5. In the mid-1980s, he sought VA treatment for his skin disorder. Id. at 7. In support of his claim, the Veteran points to a February 2005 signed statement from J.F.S., Jr., a service comrade, to the effect that the Veteran had a slight rash on both knees for which cream was prescribed while they were stationed in Germany. In February 2005 and February 2007 signed statements, the Veteran indicated that he served along the old Czechoslovakia/German border that was a "radiated zone" and he "[m]ight of come in contact chemicals/nuclear contamination" to which he apparently attributed his claimed skin rash. Service treatment records include an enlistment examination dated in September 1976 showing normal skin findings. The Veteran was found qualified for active service. He then had several clinical visits for treatment of warts on his right hand. The records do not indicate that topical cream or ointment was provided for a rash during those visits. A December 1976 clinical record reflects treatment for jock rash, for which Zeasorb was prescribed. The Veteran waived undergoing a physical examination in December 1979, prior to his separation from active service. Post service, VA medical records dated from 2005 to 2012 reflect treatment for psoriasis. July and September 2005 clinical records show a reported 20-year history of plaque psoriasis. According to a November 7, 2007 record, the Veteran reported that his psoriasis started in military service in Germany and was treated with different creams. Upon VA examination in January 2008, the Veteran gave a history of a rash, described as psoriasis, that started in approximately April 1978 as a small rash on his right lower shin in the area of his boot strap. It started expanding and spreading to the left leg and then to his thighs, arms, body, and now his scalp. It was progressive and constant. The diagnosis was psoriasis. Signed statements from the Veteran's mother and wife, dated in May 2008 and March 2009, respectively, and from F.C., G.C. and O.S., dated in April and May 2008, respectively, are to the effect that, prior to entering service, he did not have a noticeable rash but had one on his lower extremities in late 1979 and 1980, shortly after his discharge from active service. In a March 2009 signed statement, the Veteran noted his VA medical treatment for psoriasis (skin rash) and indicated that he had stopped seeking treatment because the medical facility was far from his home and he could not afford it. In October 2012, the Veteran underwent a VA examination performed by the chief of dermatology at a VA medical center. According to the examination report, the examiner reviewed the medical records and performed a clinical evaluation. The Veteran gave a history of having an itching rash on his lower extremities in Germany in the late 1970s. He reported that boot strap irritation may have led to it. His condition persisted since then and was treated with topical medications and narrowband ultra violet (nbUVB) phototherapy. The diagnosis was psoriasis. The VA examiner remarked that the Veteran's history was consistent with his having psoriasis vulgaris since service. Then the VA examiner commented that review of the claims file cannot establish direct documentation of psoriasis documentation during the Veteran's service, thus, the examiner "cannot be certain about this." However, in a clarifying statement dated the following day, the Compensation and Pension Medical Director who is a VA staff physician, noted the dermatologist's comments and said that "based upon the fact that there is no documentation of psoriasis in the [claims file], it is less likely than not that the Veteran's psoriasis is related to the Veteran's service." Here, the service treatment records do not provide evidence of a skin disorder in service. However, the Veteran has asserted that, while receiving treatment for warts of the right hand he also complained of skin problems and was given topical ointment. The Board finds it plausible that such complaints could have been raised in service without being officially notated in the records reflecting treatment for warts. This is especially so given the lay evidence of other service members attesting to the Veteran's in-service skin symptoms. The Board has no basis for discrediting such lay evidence. Thus, the record is at least in equipoise as to an in-service incurrence of skin problems. The record also clearly establishes a current diagnosis of psoriasis, noted to have a history of symptoms dating back at least 20 years. Moreover, in this case, the lay evidence from the Veteran and his service comrades is found sufficient to support the later-documented medical diagnosis of psoriasis. See Jandreau v. Nicholson, 492 F. 3d. at 1377. Accordingly, the record is deemed to reflect psoriasis both during service and at present, with the Veteran's competent observations of his recurrent symptoms serving to link the two. Again, despite the holding in Walker, the Board finds that, pursuant to 38 C.F.R. § 3.303(d) and Jandreau, an allowance of service connection is warranted on the facts presented in this case. In allowing the claim, the Board acknowledges the negative opinion provided by the VA examiner in October 2012. However, such opinion was accompanied by an inadequate rationale. Indeed, the sole basis for the examiner's opinion appears to be the absence of documented in-service treatment. This, standing alone, is an impermissible basis for providing a negative opinion. Dalton v. Peake, 21 Vet.App. 23 (2007). In sum, the evidence is deemed to be at least in equipoise as to whether the currently diagnosed psoriasis is related to the Veteran's active service. As such, grant of service connection is warranted. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a skin disorder (claimed as a body rash) is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs