Citation Nr: 1312228 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 10-28 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a skin disorder other than radiation induced dermatitis and shingles. 2. Entitlement to service connection for locking of joint/multiple joint conditions to include bilateral conditions of the hands. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from April 1943 to December 1945. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran filed a claim of service connection for a skin disability. The initial claim was denied and this appeal ensued. The appeal was remanded in May 2011 to fulfill the Veteran's request to appear for a personal hearing at the RO in St. Petersburg, Florida before a traveling Veterans Law Judge; however, the Veteran subsequently withdrew his request for the hearing and the matter was returned to the Board. In March 2012 and August 2012, the appeal was remanded again for additional development of the record. Before the appeal was most recently returned to the Board, the RO issued a rating decision in December 2012. In that decision, the RO granted service connection for radiation induced dermatitis as well as hyperpigmentation changes in the groin area; and assigned noncompensable disability ratings for both disabilities, effective from January 26, 2009. The RO issued a Supplemental Statement of the Case (SSOC) in December 2012. The SSOC addressed the issue of entitlement to service connection for locking of joint/multiple joint conditions to include bilateral conditions of the hands. The December 2012 SSOC did not address the issue of entitlement to service connection for a skin disorder other than radiation induced dermatitis and shingles because it considered the Veteran's "skin" condition as granted in full by way of the December 2012 rating decision which granted service-connected for radiation-induced dermatitis and hyperpigmentation changes in the groin area. However, the Veteran has always maintained that he has a rash affecting areas other than the groin area; and, various medical professionals have diagnosed various skin conditions affecting parts of the Veteran's body other than the groin area. As such, the claim of service connection for a skin disorder other than radiation induced dermatitis and shingles remains in appellate status and before the Board at this time. The issue of entitlement to service connection for a skin disorder other than radiation induced dermatitis and shingles is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. In October 2012, the Veteran submitted a statement from his private cardiologist who confirmed that the Veteran was under his care as a cardiac patient. According to the cardiologist, the Veteran's first "PCI" under his care was dated February 4, 1999; and, the second PCI was dated April 20, 2007. The Veteran's Cover Letter submitted with that doctor's statement indicated that the statement was submitted in support of his ongoing claim; and, that the stress from the length of time that it was taking for a decision on his [pending] claim had caused diabetes and high blood pressure. As the Board does not currently have jurisdiction to address these issues, the issues of entitlement to service-connection for diabetes and high blood pressure are referred to the RO for appropriate action. 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 Veteran's current locking of joint/multiple joint conditions to include pain, and bilateral conditions of the hands, are not related to any disease, injury or event in service. CONCLUSION OF LAW An orthopedic disability manifested by multiple joint conditions to include pain, locking of joints and bilateral hand conditions was not incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated April 2009. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a service connection claim, and the relative duties of VA and the claimant to obtain evidence. The letter also notified the Veteran of how initial disability ratings and effective dates are assigned for all grants of service connection, pursuant to the holding in Dingess. The Veteran responded to the RO's letter later that same month. In his response, which was received at the RO in May 2009 he indicated that he has no additional evidence to submit regarding his claim. The RO attempted to obtain records from the Social Security Administration (SSA) but it was ultimately determined that no records from SSA were available. The RO made a formal finding in this regard in November 2009. The Veteran was informed by way of a November 2009 letter, in accordance with 38 C.F.R. § 3.159(e), that the SSA records could not be obtained, the efforts that were made to obtain the records, and that the Veteran should submit the records if he had a copy in his possession or that a decision would be made within 10 days based on the evidence of record. The Veteran was then afforded another series of VA compensation and pension examinations in May 2010. The matter was remanded to afford the Veteran a hearing before a Veterans Law Judge at the RO, but the Veteran subsequently withdrew his request for a hearing and the case was sent back to the Board. The Board, however, determined that additional development was necessary and remanded the case in March 2012. The Veteran appeared for the scheduled VA examination in March 2012. Following that examination, the RO sent another letter to the Veteran notifying him that some of his service treatment records had been destroyed during the NPRC fire in 1973 and were therefore not available for review. The Veteran was notified by way of an April 2012 letter, in accordance with 38 C.F.R. § 3.159(e), that the RO attempted to obtain missing service treatment records in particular those pertaining to radiation therapy, that the National Personnel Records Center informed that records were damaged due to a fire, and if he had the records or knew the location thereof, he should submit the records or report the location thereof. He was informed to submit the additional evidence or information within 10 days otherwise a decision might be made after 10 days. He was also informed of alternate sources of evidence that could substitute for missing service treatment records, including statements from military medical personnel, buddy statements, state or local accident and police reports, employment physical examinations, other medical evidence where treatment was sought after separation, letters written during service, pharmacy prescription records and insurance examinations. The Veteran submitted a copy of a private treatment record from April 2012 and he informed the RO that he had been treated at the Tampa VA Medical Center and the Port Richey VA Clinic. The RO subsequently attached these records to the Veteran's virtual VA folder which has been reviewed by the Board. The Veteran's case was re-adjudicated and he was issued a supplemental statement of the case in May 2012, which included consideration of VA medical records uploaded to Virtual VA. In August 2012, the Board denied service connection for shingles, and remanded the other issues on appeal because at that point, there remained some unanswered medical questions leaving the record inadequate to render an informed decision as to these issues. On remand, the Veteran was afforded a comprehensive VA examination that adequately addressed the remaining unanswered medical questions. The examination is adequate as the examiner reviewed the claims file, and extensively reviewed all of the medical evidence of record. The examiner's opinions are highly probative because they are based on sound medical principles, in conjunction with an examination of the Veteran and a review of the record. The agency of original jurisdiction (AOJ) substantially complied with the remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Moreover, in light of the notices sent to the appellant, as discussed above, the duty to notify has been met. As noted above, VA has obtained service treatment records, to the extent that they are available, and not destroyed by fire. VA has assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the likely etiology of joint pain and locking, and if there is any relationship between any current joint disorder and service. The Veteran was afforded an opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. There has been compliance with the remand instructions insofar as the VA examiner specifically opined as to the likelihood of any relationship between any current disability, any in-service disability and claimed lichen planus. Moreover, VA attempted to obtain additional service treatment records and obtained additional VA treatment records in accordance with the Board's directives. Accordingly, there has been substantial compliance with the remand. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file have been reviewed, and all relevant records are either duplicative of the evidence in the paper claims file or are separately identified and summarized below. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Service Connection The Veteran seeks service connection for joint pain and locking of multiple joints, including, but not limited to the hands. The Veteran essentially maintains that he developed a skin rash in service, and subsequently developed joint pain at the same locations where the skin rash erupted. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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). Competent and credible lay evidence may establish the presence of observable symptomatology and, in certain circumstances, may provide a basis for establishing entitlement to service connection. When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh the lay testimony and make a credibility determination as to whether it supports service connection. See, e.g., Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Medical evidence is therefore not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Nonetheless, although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, separated shoulder, pes planus (flat feet), tinnitus (ringing in the ears), varicose veins, etc., they are not competent to provide evidence on more complex medical questions beyond simple observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (indicating 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). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). Even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases. Id at 1337. See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The lack of contemporaneous medical evidence is also relevant; however, the mere lack of such evidence may not constitute the sole basis for discrediting the lay evidence. Id. At a VA examination in May 2010, the Veteran reiterated that he developed a rash in service that has continued to the present day. In addition, the Veteran explained that he also developed joint pain in the areas where the rash had occurred. The examiner referred to a September 2009 primary care clinic note which indicated that the Veteran's hand x-rays were negative for any signs of a destructive arthritis such as RA (rheumatoid arthritis) though his blood work showed positive antibodies. The note also indicated, however, that positive antibodies did not mean he had the disease of rheumatoid arthritis. It was suggested that if the Veteran was in a lot of pain, that he should be referred to the rheumatology clinic in Tampa for evaluation. The Veteran was offered this referral but he declined. On examination in May 2010, the examiner noted pain in the bilateral hands, wrists, knees. The examiner found degenerative joint disease of the knees, and chronic bilateral wrist strain, with evidence of an old injury to the left wrist. The examiner concluded that there is no evidence that lichen planus or shingles causes any type of joint pain. Also, the examiner pointed out that the Veteran had a positive Rheumatoid Factor, but noted that this is commonly false positive in elderly individuals; and, moreover, other more specific testing indicates that there is no evidence that the Veteran actually has Rheumatoid Arthritis or any other type of autoimmune disease. The Veteran's complaints of joint pain were addressed at a VA examination in September 2012 which covered an examination of the Veteran's ankles, hands/fingers, knees/lower legs, shoulders/arms, and wrist. The examiner diagnosed degenerative joint disease of the ankles, knees and shoulders as well as bilateral trigger finger, osteoporosis, tendonitis of the writs and a left wrist posttraumatic injury. The examiner opined that the claimed joint conditions were less likely than not incurred in or caused by the in-service skin disorder. The examiner reasoned that there was no objective evidence demonstrating a linkage between any joints examined and the Veteran's active duty service, to include claimed skin conditions and/or claimed radiation therapy. The STRs, which the examiner conceded may be incomplete, did not document injury to these joints during service. Further, the examiner noted that the Veteran's separation examination from December 1945 listed "no joint abnormalities" and "none" under "Musculoskeletal Defects noted." The examiner also observed that the Veteran did not claim any joint conditions, nor were any documented, in his initial VA disability claim filed circa 1946. The examiner also stated that according to up-to-date medical literature, none of the Veteran's claimed conditions, including lichen planus/dermatophytosis, were known for causing joint damage/destruction. Similarly, according to the examiner, the Veteran's claimed history of radiation therapy could not account for his current joint conditions, which were widespread, and mild in degree, as far as degenerative joint disease is concerned. The examiner's opinion is entitled to probative weight as it is based on a review of the history, a physical examination and as sufficient information was provided to allow the Board to render an informed determination. There is no evidence to the contrary. The medical evidence shows a positive link between the Veteran's age and his current joint pain. The Board has considered the Veteran's assertions that he has current joint disorders that are related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, which involves the etiology of disorders such as arthritis and strain, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Moreover, even if the Veteran were so qualified, his statements if presumed to be credible and probative, are outweighed by the medical examiner's opinion. The examiner conducted a review of the history and provided a medical opinion supported by a rationale. As the medical examiner has expertise in diagnosing joint disorders and assessing the etiology of disorders, the Veteran's statements are outweighed. While arthritis is a presumptive disorder pursuant to 38 C.F.R. § 3.309(a), arthritis was not demonstrated in service, since the separation examination was normal and current arthritis has not been linked to service. Hence, the preponderance of the evidence is against the claim of service connection for locking of joint/multiple joint conditions to include bilateral conditions of the hands; there is no doubt to be resolved; and, service connection is not warranted. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. ORDER The claim of service connection for locking of joint/multiple joint conditions to include bilateral conditions of the hands is denied. REMAND The Veteran seeks service connection for a disability manifested by a skin disorder with accompanying pain in the areas where the skin eruption exists, or existed at one time. The Veteran asserts this disability began in service, and affected his fingers, legs, penis, rib areas, wrists and knees. The Veteran has been treated with multiple creams but without any complete relief. Notwithstanding the establishment of service connection for residual disability in the groin area, the Veteran continues to maintain that he has additional skin disability in other areas of his body that is related to the in-service skin disability. However, when the RO granted service connection for radiation induced dermatitis and hyperpigmentation changes in the groin area in December 2012, they did not also consider the Veteran's claim in its entirety. The Veteran has always maintained that he has a skin rash covering many body parts, including hands, legs, and feet. The medical evidence of record indicates that the Veteran has multiple diagnoses of various skin conditions; and the Veteran's claim has never been limited to a rash/condition in the groin area. As such, the December 2012 rating decision granting service connection for radiation induced dermatitis [in the groin area] with hyperpigmentation changes [in the groin area] was only a partial grant of benefits on appeal, and not a complete grant, as the RO stated on the December 2012 rating decision. As a supplemental statement of the case was not issued on the claim which remains pending it would prejudice the Veteran if the Board were to proceed in this matter. Given this finding, the RO must consider the Veteran's claim of service connection for a skin disability covering other parts of the body, including, but not limited to the upper extremities, feet, arms and legs. If the claim remains denied, a supplemental statement of the case must be issued. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Following completion of any additional development deemed warranted, readjudicate the Veteran's claim for a skin disorder including xerosis, tinea unguim, tinea pedis, eczema and dermatitis affecting the upper extremities, lower extremities and rib area. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) which considers evidence added to the record since the last SSOC on this claim was issued in May 2012, and an appropriate period of time allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs