Citation Nr: 1307903 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 05-03 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a skin disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1967, which includes service in the Republic of Vietnam. This matter initially came before the Board of Veterans' Appeals (Board) from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In that decision, the RO denied entitlement to service connection for a skin disease. The RO in Montgomery, Alabama currently has jurisdiction over the Veteran's claim. In March 2009, December 2010, and June 2012, the Board remanded this matter for further development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and considered as part of this appeal. In its December 2010 and June 2012 remands, the Board noted that the Veteran had raised the issues of entitlement to an earlier effective date for the grant of service connection for depressive disorder, entitlement to an increased rating for depressive disorder, and entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). These issues have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's current skin disease did not have its clinical onset in service, is not presumptively related to herbicide exposure in service, and is not otherwise related to active duty. CONCLUSION OF LAW The Veteran's current skin disease was not incurred or aggravated in service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1113(b), 1116, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Under the VCAA, 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) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a pre-adjudication letter dated in February 2004, the RO notified the Veteran of the evidence needed to substantiate his claim of service connection for a skin disease. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The claimant's Veteran status has been substantiated. He was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in a March 2006 letter. The timing deficiency with regard to this letter was cured by readjudication of the claim in a July 2007 supplemental statement of the case. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records, pertinent service personnel records, and some of the identified relevant post-service VA treatment records. The Veteran has not reported, and the evidence does not otherwise reflect, that he has received any post-service private medical treatment for a skin disease. In addition, he was afforded VA examinations to assess the nature and etiology of his current skin disease and opinions have been obtained concerning the etiology of this disease. In its March 2009, December 2010, and June 2012 remands, the Board instructed the AOJ to, among other things: send the Veteran a VCAA notice letter informing him of the disability rating and effective date elements of his claim, obtain any additional relevant VA treatment records dated from before October 1998 (including those from the VA Medical Center in Birmingham, Alabama (VAMC Birmingham) dated from 1998 to 2003 and since November 2004) as well as all available treatment records from the VA Medical Center in St. Louis, Missouri (VAMC St. Louis), obtain any available Social Security Administration (SSA) disability records, afford the Veteran a VA examination to assess the nature and etiology of his claimed skin disease, and obtain opinions as to the etiology of the disease. The Veteran was informed of the disability rating and effective date elements of his claim in a March 2009 letter. Also, he was afforded VA examinations in March 2011 and June 2012 and opinions were obtained concerning the etiology of his claimed skin disease. In June 2012, the AOJ contacted the SSA and requested all available disability records. The SSA responded that it was not in possession of any medical records because either the Veteran did not file a claim for disability benefits or no medical records were obtained in relation to any such claim. In August 2012, the Veteran was notified of the unavailability of SSA records, he was asked to submit any such records in his possession, and he was notified that his claim could be decided within 10 days if no further evidence was received. He specifically reported in August 2012 that he was not in possession of any SSA disability records. Thus, the AOJ determined that any further efforts to obtain SSA disability records would be futile and VA has no further duty to assist in obtaining any available SSA disability records. 38 C.F.R. § 3.159(c)(2) (2012). In January, March, and June 2012, the AOJ requested all available treatment records from the VA Medical Center in Dallas, Texas (VAMC Dallas) dated prior to October 1998, all available treatment records from VAMC Birmingham dated prior to October 1, 1999, and all available treatment records from VAMC St. Louis. All available VA treatment records from VAMC Dallas and VAMC Birmingham have been obtained and associated with the claims file. In February 2012, VAMC Dallas responded that a search of its archived records was conducted, but that no treatment records prior to October 1998 had been found. The Veteran was notified in a March 2012 letter that such records from VAMC Dallas were not available, he was asked to submit any such records in his possession, and he was notified that his claim could be decided within 10 days if no further evidence was received. Moreover, the only available treatment record from VAMC St. Louis that was obtained is dated in June 1993 and pertains to treatment for shoulder problems. Hence, any further efforts to obtain additional VA treatment records from the above identified facilities would be futile. Id. Thus, the AOJ has substantially complied with all of the Board's relevant January, March, and June 2012 remand instructions pertaining to the issue decided herein. VA has no further duty to attempt to obtain any additional records or conduct additional examinations. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Analysis Service connection will 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. Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) (2012) is through a demonstration of continuity of symptomatology. See 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. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429, at *6 (Fed. Cir. Feb. 21, 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). 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). A veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected even though there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation. 38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Medical records reveal that the Veteran has been diagnosed as having various skin diseases. For example, a July 2004 VA surgical pathology report, a November 2006 VA dermatology consultation note, and VA examination reports dated in March 2004 and June 2012 include diagnoses of folliculitis, eczema, dyshidrosis, and spongiotic dermatitis. Thus, a current skin disease has been demonstrated. As the Veteran served in Vietnam, he is presumed to have been exposed to herbicides, including Agent Orange. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. However, his current skin diseases are not conditions listed in 38 C.F.R. § 3.309(e). Presumptive service connection on the basis of his presumed exposure to herbicides is, therefore, not warranted. 38 C.F.R. § 3.309(e); see also 68 Fed. Reg. 27,630-41 (May 20, 2003) (stating that the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted). The Veteran contends that he began to experience a skin rash while serving in Vietnam and that such problems have continued in the years since that time. He is competent to report observable symptoms of a skin disease in service, as well as a continuity of symptomatology. However, his reports must be weighed against the objective evidence and their credibility must be assessed. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. Service treatment records include a December 1965 report of treatment for a rash between the legs which had been present for 3 weeks and was associated with an itching sensation. Examination revealed that there were no other serious sores elsewhere. There is no other evidence of any complaints of or treatment for skin problems in the Veteran's service treatment records and his September 1967 separation examination was normal other than for scars. The objective evidence otherwise indicates that the Veteran's current skin disease did not manifest until many years after service. The first post-service clinical evidence of a skin disease are VA treatment records dated in June 1998 which include reports of a 2 month history of a rash on both forearms and hands which was associated with itching and flaking of the skin. Such symptoms had also reportedly occurred one year prior to the June 1998 evaluation. The Veteran was diagnosed as having dermatitis and possible eczema. There is no clinical evidence of any earlier skin symptoms following service. The absence of any evidence of skin symptoms for decades after service weighs the evidence against a finding that the Veteran's current skin disease was present in service or in the year or years immediately after service. Moreover, there are some varying lay statements as to the history of the Veteran's skin problems. For example, he has contended on numerous occasions that his skin rash has persisted ever since service. However, he reported in his December 2003 claim (VA Form 21-526) that his skin disease had begun in 1998. In a November 2006 letter, A.C and C.C. reported that they had observed an apparent allergic reaction on the Veteran's hands, wrist, and lower arms in August 1998. His skin symptoms consisted of rough, scaly, and swollen skin. Also, in a December 2006 letter, the Veteran's brother reported that he had realized something was wrong with the Veteran "as far back as the summer of 1969." For example, his skin "began to break out in rashes." In light of the absence of any evidence of complaints of or treatment for skin problems in service other than the December 1965 treatment for a rash between the legs, the fact that the Veteran's September 1967 separation examination was normal other than for scars, the absence of any reports of or treatment for skin problems for decades after service, and the varying lay statements concerning the history of his skin symptoms (particularly the Veteran's inconsistent statements as to their onset), the Board concludes that the reports of a continuity of symptomatology since service are not credible in this instance. Thus, neither the clinical record nor the lay statements of record establish a continuity of symptomatology in this case. Nevertheless, even if the Veteran's reports of a continuity of symptomatology were assumed to be credible, an award of service connection on this basis would nonetheless be precluded because his current skin diseases are not among the chronic conditions listed in 38 C.F.R. § 3.309(a). Service connection on the basis of a continuity of symptomatology may only be granted if a claimed disability is among this list of chronic conditions. See Walker, 2013 WL 628429, at *6. Moreover, the medical opinions of record reflect that the Veteran's current skin disease is not related to service. The physician who conducted a March 2011 VA examination opined that Veteran's current skin disease was not likely ("less likely as not"/"less than 50/50 probability") caused by or a result of service. This opinion was based on the fact that Agent Orange exposure was not known to cause spongiotic dermatitis. The June 2012 VA examination report also includes an opinion that the Veteran's current skin disease was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by any in-service injury, event, or illness. The examiner reasoned that there was no evidence of any spongiotic dermatitis starting in service. Service treatment records only revealed a lice infection and tinea cruris of the groin. These were separate skin conditions that were not etiologies of the type of dermatitis currently experienced by the Veteran. Also, his current dermatitis was not a condition related to Agent Orange exposure. Further, the evidence showed that his dermatitis had its onset beginning in the 1990s and that it was a form of contact or allergic dermatitis which, by nature, did not have latency. VA treatment records suggested that some of the prescriptions for the Veteran's other medical conditions were possible etiologies for his current skin disease. The physician who provided the June 2012 opinion did not explicitly acknowledge and discuss the Veteran's reports of a continuity of skin symptomatology in the years since service in formulating the opinion. However, as explained above, the Veteran's reports of a continuity of symptomatology are not deemed to be credible and an opinion based on such an inaccurate history would be inadequate. See Boggs v. West, 11 Vet. App. 334, 345 (1998); Kightly v. Brown, 6 Vet. App. 200, 205-06 (1994); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The June 2012 opinion was otherwise based upon an examination of the Veteran and a review of his medical records and reported history, reflects consideration of the Veteran's skin problems in service, and is accompanied by a specific rationale that is not inconsistent with the evidence of record. Thus, the opinion is adequate and entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The March 2011 opinion is of limited probative value because it was only based on a conclusion that the Veteran's current skin disease was not known to be related to Agent Orange exposure, it does not reflect consideration of the Veteran's documented skin problems in service, and does not address whether the current skin disease was otherwise directly related to service. Nevertheless, this opinion at least supports the conclusion that the current skin disease is not related to service. The Veteran has expressed his opinion that his current skin disease is related to his skin problems in service and his presumed exposure to herbicides. However, as a lay person, he can only comment as to symptoms and immediately-observable relationships. He lacks the expertise in this case, not involving such an immediately observable cause-and-effect relationship, to conclude that his current skin disease is related to his skin problems or herbicide exposure in service, as opposed to some other cause. Rather, it would require medical expertise to evaluate the disease, consider all the potential causes, and determine that one was a more likely cause than another. Hence, the Veteran's opinion on this question is not competent evidence. 38 C.F.R. § 3.159(a)(1), (2) (2012). Although the Veteran has received treatment from medical professionals for his skin disease, none have attributed this disease to any disease or injury in service, including herbicide exposure. Also, the only medical opinions of record indicate that no relationship exists between the Veteran's current skin disease and service. There is no other evidence of a relationship between the Veteran's current skin disease and service, and neither the Veteran nor his representative have alluded to the existence of any such evidence. Thus, the preponderance of the evidence is against a finding that the Veteran's current skin disease manifested in service or is otherwise related to service. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not for application in this case and the claim of service connection for a skin disease must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for a skin disease is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs