Citation Nr: 1308715	
Decision Date: 03/14/13    Archive Date: 03/25/13

DOCKET NO.  08-37 395	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
Commonwealth of Puerto Rico


THE ISSUES

Entitlement to service connection for skin condition.



ATTORNEY FOR THE BOARD

A. Novak, Associate Counsel


INTRODUCTION

The Veteran had active military service from March to September 1986, September 1990 to April 1991, and March 2003 to May 2004.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.

In February 2012, the Board remanded the claims of service connection for psoriasiform dermatitis and for lumbosacral degenerative disc disease for additional development.  During the interim, the RO granted the Veteran's claim of service connection for lumbosacral degenerative disc disease and assigned a 10 percent disability rating.  The Veteran has not appealed this decision.  As a consequence, only the claim for psoriasiform dermatitis, claimed as skin condition, is currently on appeal.


FINDINGS OF FACT

The Veteran currently has cholinergic urticaria, a skin condition, which became manifest after his separation from military service and was not caused or aggravated in military service.


CONCLUSION OF LAW

The criteria for service connection for cholinergic urticaria, originally claimed as a skin condition and as psoriasiform dermatitis, have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA Duties to Notify and Assist

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The Board has given consideration to the VCAA.  The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits.  The VCAA also redefines the obligations of VA with respect to its statutory duty to assist a claimant in the development of a claim.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002).

The VCAA alters the legal landscape in three distinct ways: standard of review, notice, and duty to assist.  The Board will now address these concepts within the context of the circumstances presented in this case.

Notice

The VCAA requires VA to notify the Veteran and the Veteran's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim.  As part of this notice, VA is to specifically inform the Veteran and the Veteran's representative, if any, of which portion, if any, of the evidence is to be provided by the Veteran and which part, if any, VA will attempt to obtain on behalf of the Veteran.  See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an Veteran describing evidence potentially helpful to the Veteran, but not mentioning who is responsible for obtaining such evidence, did not meet the standard erected by the VCAA].

After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issue on appeal.

The Veteran was informed of the relevant law and regulations pertaining to his service connection claim in a letter from the RO dated in October 2007.  The RO informed the Veteran of VA's duty to assist him in the development of his claim in the October 2007letter.  Specifically, the letter stated that VA would assist the Veteran in obtaining any relevant records from any Federal agency, including the military, VAMCs, or the Social Security Administration.  With respect to private treatment records, the letter informed the Veteran that VA would make reasonable efforts to obtain such records.  The letter also indicated that a medical examination or opinion would be provided if necessary to make a decision on the Veteran's claim.

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (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.  Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim.  Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 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 the elements of the claim as reasonably contemplated by the application.  This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  The Veteran was also provided with Dingess notice in the October 2007 notice letter.  

Accordingly, the Veteran received proper notice as to disability rating and effective date pursuant to the Court's Dingess determination.  Moreover, in this case, elements (1) and (2) are undisputed, and element (3) is irrelevant.  Additionally, elements (4) and (5), degree of disability and effective date, are rendered moot via the RO's denial of service connection.  In other words, any lack of advisement as to those two elements is meaningless, because a disability rating and effective date were not assigned.  Because, as will be detailed below, the Board denies the Veteran's claim, element (4) and (5) remain moot.

Because there is no indication that there exists any evidence, which could be obtained to affect the outcome of this case, no further VCAA notice is necessary.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran].

Duty to Assist

In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).

In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim and there is no reasonable possibility that further assistance would aid in substantiating the claim.  The evidence of record includes the Veteran's service treatment records, VAMC and private treatment records, and a private medical opinion.  Additionally, the Veteran was provided with a VA medical opinion in March 2012.  The VA medical opinion reflects that the examiner thoroughly reviewed the Veteran's past medical history, documented his current medical conditions, reviewed pertinent medical research, and rendered an appropriate opinion consistent with the remainder of the evidence of record.  The Board therefore concludes that the VA medical opinion is adequate for evaluation purposes.  See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate].  The Veteran and his representative have not contended otherwise.

In summary, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of this issue has been consistent with said provisions.

The Board also observes that all due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2012).  The Veteran has retained the services of a representative, who has presented argument on his behalf.

Accordingly, the Board will proceed to a decision as to the issue on appeal.


II. Applicable Law

The Veteran claims that his psoriasiform dermatitis, originally claimed as a skin condition, was incurred in military service, and he states that it is related to his service in the Persian Gulf.

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(a).  Service connection can be demonstrated for a disease diagnosed after service 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); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (holding that proof of direct service connection may entail proof that exposure during service caused the malady that appeared many years later); Cosman v. Principi, 3 Vet. App. 503, 505 (1992) (holding that service connection can still be established even when a Veteran did not have a particular condition diagnosed during service or for many years thereafter).  

In order to establish service connection, the evidence must generally 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 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).

Alternatively, under 38 C.F.R. § 3.303(b), the second and, in some cases, the third elements can be established through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  The text of section 38 C.F.R. §3.303(b) reads as follows:

(b) Chronicity and continuity. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.

Service connection is also permissible on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a)-(b) (2012).  See also Allen v. Brown, 7 Vet App. 439, 448 (1995).

Section 1154(a) requires VA to give "due consideration" to "all pertinent medical and lay evidence" when evaluating a claim for disability benefits.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Generally, the Board should determine whether the Veteran's particular disability is the type of disability for which lay evidence is competent, and, if so, weigh that evidence against the other evidence of record in making its determinations.  Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011).

The United States Court of Appeals for the 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."  Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  Lastly, a layperson may also be competent to testify to the manifestations of a chronic condition during service or a presumptive period or to continuity of symptomatology.  Hickson, 12 Vet. App. at 253.

Once evidence is determined to be competent, the Board must determine whether the evidence is credible.  In assessing the credibility of the evidence, the Board may properly consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, as well as, if applicable, the demeanor of the witness if oral testimony is given.  Caluza, 7 Vet. App. at 511.  The Board may also consider the effect of self-interest.  Pond v. West, 12 Vet. App. 341, 345 (1999).

The Board is responsible for evaluating the evidence of record and assigning due probative weight.  Madden v. Grober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); see also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005); Owens v. Brown, 7 Vet. App. 429, 433 (1995).  Upon weighing the evidence, if 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 a veteran.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

III. The Facts

The Veteran claims that his psoriasiform dermatitis, originally claimed as a skin condition, was incurred in military service.  In his substantive appeal to the Board, he reported that during his time in Iraq, he was exposed to high temperatures related to climate and sun, and pointed out that he also was exposed to the heat related to the equipment and machines with which he worked on a daily basis. He specifically pointed to his work in a laundry unit where he was exposed to dryers and heaters that operated at high temperatures.  He also points out that he had direct contact with thousands of dirty uniforms during the process of cleaning them and he did not know what kind of contamination he was exposed to through that contact.  He reports that sun exposure and bathing in hot water activates a rash and itch on the upper part of his body.  

The Veteran's service treatment records (STRs) are negative for complaints or diagnosis of a skin disease or an allergic reaction during service.  In March 2003, he was given a smallpox vaccination.  At this time, he was asked on a waiver form whether he had eczema or atopic dermatitis, usually involving an itchy, red, scaly rash; he answered in the negative.  He also reported that he did not have psoriasis, burns, impetigo, uncontrolled acne, shingles, chickenpox, or other skin conditions.  In November 2003, he again indicated that he did not have any skin problems.

The first evidence of complaints associated with the skin is shown in September 2005, about sixteen months after his separation from active military service.  A September 2005 a treatment record from the VA Medical Center (VAMC) in San Juan, Puerto Rico, shows the Veteran had pruritic red bumps on his back, arms, and chest.  He had experienced the bumps for about three or four weeks, and also had an inflammatory area around his nipples that were releasing a secretion.  He was prescribed an antihistamine (Atarax) and an insecticide treatment (Kwell) for lice and scabies.  In December 2005 at a subsequent appointment at the San Juan VAMC, the physician indicated that he had scabies.

The records of the Veteran's treating dermatologist dated between September 2005 and March 2006 show diagnoses of atopic dermatitis.  In September 2005, the Veteran was prescribed Elimite (permethrin), an insecticide and treatment for scabies.  The Veteran continued to receive treatment from this practitioner for the next six months and atopic dermatitis was consistently diagnosed.

The Veteran was seen by a private dermatologist in March 2007 who provided a diagnosis of psoriasiform dermatitis.  The dermatologist indicated that he had chronic nummular (coin-shaped) dermatitis and noted acute spongiosis (fluid buildup in the skin).

In January 2008, the Veteran had a VA allergy consultation at the San Juan VAMC.  According to the report, the Veteran reported itching after being exposed to intense heat in Iraq.  He was treated afterward as if he had scabies, although no one else in his family had similar symptoms and he did not improve.  He had hives the size of an eraser, especially on exposure to heat or exertion.  Skin tests showed allergic reactions to mites, cockroaches, shrimp, and crabs.  He was diagnosed with cholinergic urticaria, and was instructed to avoid heat and to take Claritin before exertion.  The examiner found that the condition "may have[] been developed after intense heat exposure at Iraq" since he did not have a family history or personal history before his tour of duty.  

In a lay statement submitted in December 2008, the Veteran indicated that while he was stationed in Iraq, he was exposed to high temperatures, as well as from laundry machines, showers, and other high-temperature equipment.  He also had exposure to the dirty uniforms and clothing of thousands of soldiers, which may have been contaminated.  Currently, his skin condition became worse when he was in a hot environment, and he even had trouble bathing in hot water as it activated a rash and itching on the upper part of his body.

A lay statement by the Veteran's wife indicated that he had "constant itching" on different parts of the body, and he scratches until he tears his skin.  She wrote that he had seen several dermatologists and they have not been able to establish the cause of the itching.

The Veteran was examined by VA in March 2012.  The examiner reported that the Veteran had taken Claritin, an antihistamine, for six weeks or more but not constantly.  He also used Aveeno moisturizers for his cholinergic urticaria.  His episodes responded to treatment.  The examiner concluded that the Veteran did not show any psoriasiform dermatitis.  He had a milder cholinergic urticaria than he used to have, which was present mostly during sweating from exertion and heat exposure.  The condition was well-controlled with the occasional use of Claritin.  "He developed cholinergic urticaria more than a year after discharge with no complaints or evidence of a skin disease during military service," the examiner wrote.  Cholinergic urticaria, an immediate type of allergic reaction, had not been associated to a late-onset appearance due to high heat or chemical exposure.  As a consequence, the skin condition was "less likely than not" incurred in or caused by his military service.

IV. Analysis

The Veteran claims that his skin condition is service connected.  As indicated above, a claim for service connection generally involves (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.  In the present case, because the Board finds that the Veteran has not shown the in-service incurrence or aggravation of a disease or injury, this claim for service connection must be denied.

As an initial matter, it is clear that the Veteran suffers from a chronic skin condition, which had been previously characterized as psoriasiform dermatitis.  Dermatology records indicate that the condition appear to have started in the late summer of 2005, more than a year after his separation from military service after he returned from a trip.  He was treated with insecticides for a possible scabies infestation, but his condition, which was characterized as small bumps on his trunk, arms, and back, apparently did not subside.  The Veteran's treating dermatologist referred to the condition as "atopic dermatitis" between September 2005 and March 2006, but in January 2008 an allergy test showed that the Veteran had allergies to mites, cockroaches, shrimp, and crabs.  His March 2012 VA examination diagnosed him with "a milder cholinergic urticaria" (a form of hives that occurs after sweating or heat exposure) than the psoriasis that he had had previously.  This evidence tends to show that the Veteran has a current chronic skin disorder.  The first criteria of service connection has been established.  

However, the Veteran has not shown that he had an in-service incurrence or aggravation of a skin condition, the necessary second requirement of service connection.  His STRs are negative for complaints of a skin condition in service.  In March 2003, he completed a detailed survey of his skin conditions before receiving a smallpox vaccine, which, according to the form, is not given to persons with eczema or other chronic skin problems.  He answered in the negative to all of the questions.  More than six months later, in November 2003, he again answered that he did not have any skin problems.  His self-reported statements of no skin issues are particularly difficult to overcome and negatively impact his claim.  These reports were made in the context of a medical procedure in service.  There are two reports made at different times during service and both are to the effect that there were no problems with the Veteran's skin.  These in-service statements are more credible than the later statements made by the Veteran in connection with his claim where pecuniary interest is involved.  

Additionally, the first reports of a chronic skin condition were in September 2005, about sixteen months after his final separation from active duty.  He reported to his treating physician that he had had symptoms for about a month after returning from a trip, and he was placed on insecticides for a possible scabies infestation.  However, his condition did not improve and did not spread to other family members.  He subsequently had a positive allergy test and was noted to have eraser-sized hives.  His March 2012 VA examination related his condition to an allergic reaction to heat or sweating.  There simply is no indication that this condition arose during military service.  Here, the evidence indicates that the onset of the condition was first demonstrated during the summer of 2005.  

Undoubtedly, the Veteran was exposed to extreme temperatures and certain irritants and chemicals during his time in the Persian Gulf and this exposure is conceded.  However, the March 2012 VA examiner considered these factors and ultimately concluded that they were not the cause of the Veteran's condition.  The examiner indicated that cholinergic urticaria was an immediate allergic reaction, and it is not known to have a delayed onset as a result of any heat or chemical exposure.  The examiner's conclusions are persuasive based on the evidence available in the present case.

The Veteran has essentially argued that he has experience a skin problem since service and this allegation must be considered under the provisions of 38 C.F.R. 3.303(b).  This regulation, as noted above, provides that when a chronic disease is either shown in service, or such a diagnosis can be identified through symptoms in service, then any later manifestation of the chronic disease at any later date will be service connection unless there is an intercurrent cause that can be clearly attributable to the chronic disease.  Section 3.303(b) is constrained by section 3.309(a) which provides a list of chronic diseases recognized by VA.  The Veteran's various skin conditions are not on this list and consideration under this regulation is not warranted.  

As a final matter, although the Veteran served in the Persian Gulf, he does not possess the elements of Gulf War Undiagnosed Illness.  Undiagnosed illness entitles a former service member to disability compensation if he or she exhibits objective indications of a chronic disability and if by history, physical examination, and testing, the disability cannot be attributed to any known clinical diagnosis.  38 C.F.R. § 3.317(a)(1).  To qualify for this presumption, the unidentified symptoms must become manifest by December 31, 2016.  Id.  In cases of Gulf War Undiagnosed Illness, there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).  Lay persons are competent to report objective signs of illness.  Id.

While the Veteran's diagnoses of his skin condition have changed, he most recently had a diagnosis of cholinergic urticaria (heat-related hives) that the VA examiner found developed subsequently to his military service.  The condition flared after hot showers or exposure to high humidity, and the Veteran had additional allergies to shellfish and insects.  Because the Veteran's condition is related to a firm diagnosis, although its severity has been irregular over the course of the Veteran's medical history, he does not meet the criteria for Gulf War Undiagnosed Illness.  

The Veteran has not shown that he had an in-service event or injury that related to a skin condition.  His STRs show that he had no complaints of a skin condition in service, and his condition was first diagnosed as atopic dermatitis more than a year after service.  He possesses a diagnosis of cholinergic urticaria, and not the type of chronic, disconnected symptoms characteristic of Gulf War Undiagnosed Illness, but there is no indication that this condition arose during service.  Consequently, because the preponderance of the evidence is against a finding of service connection in this case, the benefit of a doubt doctrine is not for application.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).


ORDER

Service connection for a skin condition is denied.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs