Citation Nr: 1308431 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 10-16 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a skin disorder, claimed as jungle rot and diagnosed as eczema. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from April 1946 to October 1947. This matter came before the Board of Veterans' Appeals (Board) from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In July 2011 and October 2012, the Board remanded the issue for further development. 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 evidence is in equipoise as to whether the Veteran's eczema is related to active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, eczema was incurred in service. 38 U.S.C.A. §§ 101, 1110, 1131, 5103A, 5107 (West 2001 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the fully favorable decision below, a detailed explanation of how VA complied with the VCAA is unnecessary. Pertinent law and regulations 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, 1131. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran's service treatment records are not of record. VA has a heightened duty to assist the Veteran in developing his claim since the records may have been lost. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The case law does not, however, lower the legal standard for proving a claim but, rather, increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46, 51 (1996). Analysis Shedden element (1), current disability, has been met. The medical evidence shows that an August 2011 VA examiner diagnosed eczema. Although the examiner did not make the diagnosis based on findings on physical examination, the doctor did make the diagnosis based on the Veteran's reporting of symptomatology. With respect to Shedden element (2), the Veteran's service treatment records are not of record due to the records being destroyed in a fire at the service department. The appellant reported at the August 2011 VA examination that he was not treated in service for skin symptomatology. The claimant, however, is competent to report that he had skin symptomatology in service, and the Board finds him credible, as apparently the examiner did too. The August 2011 VA examiner diagnosed eczema based on lay evidence of the Veteran's reporting of in-service skin symptomatology. Turning to Shedden element (3), medical nexus, there is conflicting medical evidence provided by the August 2011 VA examiner. In an October 2011 addendum to the examination report, the examiner indicated that without service treatment records in the claims file, he could not determine whether the eczema is related to active service without resorting to speculation. The examiner later opined in a January 2013 addendum to the examination report that the current skin disorder is not caused by or the result of the Veteran's reporting having dermatitis in service. The examiner's rationale was the following: that there were no records of the in-service skin rash, that the appellant used no medication on the rash when it came, that there was no rash at the time of the examination, and that he could not in any way connect a rash that was not present on examination and not documented in service. The Board notes that the claimant's service treatment records are unavailable and that the examiner should have relied on the Veteran's credible reporting of in-service skin symptomatology in determining whether the current skin disorder related to the appellant's reporting of symptomatology. As noted by the Board in its October 2012 remand, a lack of service treatment records is not fatal to his claim if the evidence otherwise establishes a basis for service connection. The Board additionally notes that the examiner was able to diagnose a current skin disorder based on the Veteran's reporting of symptomatology alone and not any physical findings on examination, but one of the reasons for the negative medical nexus opinion is the lack of a physical finding of a rash on physical examination. The October 2012 VA examination report shows that the examiner diagnosed eczema based on the Veteran's reporting of symptomatology since 1946, which was during his period of active service. The Veteran is competent to report his continuity of symptomatology and the Board finds him credible, as the examiner apparently did too. The examiner in essence related the Veteran's reporting of report of skin symptomatology over the years to the current diagnosis of eczema. Given the Board's increased obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant, the Board finds that the evidence is in equipoise as to whether the Veteran's eczema is related to active service. Accordingly, Hickson element (3) is established. In summary, the Board is of the opinion that the Veteran has met all requirements needed to establish service connection for a skin disorder, claimed as jungle rot and diagnosed as eczema. The benefit sought on appeal is accordingly allowed. ORDER Entitlement to service connection for a skin disorder, claimed as jungle rot and diagnosed as eczema, is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs