Citation Nr: 1312831 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 05-07 736 ) 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 disability, other than psuedofolliculitis barbae. 2. Entitlement to service connection for a heart disability. 3. Entitlement to an initial evaluation in excess of 70 percent for major depressive disorder and anxiety disorder. 4. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from December 1971 to April 1975. This case comes before the Board of Veterans' Appeals (the Board) on appeal from August 2003 and August 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a May 2009 decision, the Board denied service connection for diabetes mellitus type II, hypertension, erectile dysfunction, a skin disability, and memory loss. The Veteran timely appealed the Board's May 2009 decision on these issues to the United States Court of Appeals for Veterans Claims (Court). The Board's May 2009 decision also remanded the issues of entitlement to service connection for right knee disability and heart disability for additional evidentiary development. In May 2010, the RO issued a rating decision which granted service connection at 10 percent initial evaluation for degenerative joint disease, right knee, effective June 2003. This decision resolved the Veteran's appeal of this issue. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). In October 2010, the Board remanded the issue of service connection for a heart disability for additional evidentiary development. In an April 2011 Memorandum Decision, the Court affirmed the Board's denial of the Veteran's claims seeking entitlement to service connection for diabetes mellitus type II and hypertension. The Court also set aside the Board's denial of entitlement to service connection for a skin disability and for memory loss, and remanded both of these issues for proceedings consistent with the Memorandum Decision. In November 2011, the Board recharacterized the Veteran's memory loss claim as entitlement to service connection for an acquired psychiatric disability, other than posttraumatic stress disorder, to include depression and a disability manifested by memory loss. The Board then remanded this issue, along with the issues of entitlement to service connection for a skin disability and a heart disability to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for additional evidentiary development. In August 2012, the AMC issued a rating decision which granted service connection at a 70 percent initial evaluation for major depressive disorder and anxiety disorder, effective June 2003. In February 2013, the RO issued a rating decision which granted service connection at a noncompensable evaluation for psuedofolliculitis barbae (PFB), effective June 2003. As the Veteran has not appealed either the evaluation or effective date assigned to this condition, those matters are not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In recognition of this partial grant, the Board recharacterized the Veteran's skin disability claim as entitlement to service connection for a skin disability, other than PFB. In its March 2013 Written Brief Presentation, the Veteran's representative expressed disagreement with the initial evaluation assigned to the Veteran's major depressive disorder and anxiety disorder; and further claimed entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU benefits). A request for TDIU benefits is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, entitlement to TDIU benefits is listed as an issue on appeal. The issues of entitlement to service connection for a heart disability, entitlement to an initial evaluation in excess of 70 percent for major depressive disorder and anxiety disorder, and entitlement to TDIU benefits are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran currently has a skin disability, other than PFB, related to his military service. CONCLUSION OF LAW The criteria for service connection for a skin disability, other than PFB, have not been met. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This 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). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (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. 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. The RO's July 2003 letter advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). With respect to the Dingess requirements, the Veteran was not provided with a separate notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. However, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the claim for service connection for a skin disability, other than PFB; and any questions as to the appropriate disability rating or effective date to be assigned are moot. The RO has obtained all of the Veteran's available service treatment records and identified VA and private medical treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In January 2013, a medical opinion was obtained from a VA physician that had interviewed and examined the Veteran, and reviewed the Veteran's claims file, his inservice and post service treatment records, and prior examination reports. The VA examiner then provided opinions as to the relationship between the Veteran's current skin disabilities and his military service, and included a rationale for the conclusions reached. These medical opinions are adequate for the purpose of rendering a decision in this case. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Neither the Veteran nor his representative has claimed that this medical opinion was inadequate. The Board remanded this matter in November 2011 for a VA medical opinion concerning the etiology of any skin disability found during the course of this appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that a current disability exists if the diagnosed disability is present at the time the claim is filed or during the pendency of the claim, even if the disability resolves prior to adjudication). As noted above, VA medical opinions concerning the etiology of the Veteran's current skin disabilities were obtained in January 2013. Accordingly, the Board's remand directives have been accomplished. See Stegall v. West, 11 Vet. App. 268 (1998). There is no sign in the record that additional evidence relevant to the issue being addressed is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance affects the outcome, any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when 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. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran served on active duty in the Air Force from December 1971 to April 1975. A review of his service treatment records revealed a January 1975 report of hospital treatment for a penis infection which resulted from a laceration he had suffered a couple of weeks earlier. The report noted a diagnosis of cellulitis of the penis. It also noted that the Veteran was placed on bed rest and antibiotics, and that the "inflammation resolved rapidly." Subsequent treatment records do not reflect residual complaints or treatment for this condition. Although a March 1975 medical history report noted his having received hospital treatment for a "skin disease on penis," the Veteran's March 1975 separation examination noted that his skin, lymphatics, genitourinary system, and feet were all be normal. In May 2003, a VA Agent Orange registry examination was conducted. The report of this examination noted rashes on the inguinal area, scaly plantars and webs. It concluded with a diagnosis of dermatophytosis of the inguinal and feet. In June 2003, the Veteran filed his present claim seeking entitlement to service connection for a skin rash. On his application form, he reported that this condition began in 1999. VA treatment reports, dated in October 2004 and February 2007, noted that the Veteran denied having any skin rashes or lesions. The February 2007 VA treatment report noted that physical examination of the skin was normal. An August 2009 VA list of medications noted that the Veteran had been prescribed a topical medication for fungal infection. In December 2011, a VA examination for skin was conducted. The Veteran indicated that he first developed a skin problem with his feet after stepping into a leaking chemical pool which saturated his feet while stationed in the Philippines. He indicated that his feet became irritated, and required treatment. He further indicated that the condition resolved; that he did not recall having any symptoms at the time of his discharge from the service; that he began to experience peeling and redness on the soles of his feet and in between his toes ten years later; and that his bilateral great toes became brittle and discolored. The report concluded with diagnoses of tinea pedis and onychomycosis, bilateral feet. In a February 2012 addendum, the VA examiner noted that the Veteran's claims file had been reviewed. In January 2013, a second VA examination for skin was conducted. The VA examiner noted that the Veteran's claims file had been reviewed. The examination report noted the Veteran's history of having stepped into a leaking chemical, which saturated his boot and soaked his feet. This irritated his skin and resulted in his having to obtain treatment. The Veteran also reported an inservice history of an infection on his penis in 1975. Physical examination of the genital/groin area revealed no swelling or symptoms of cellulitis of the penis. The VA examiner noted mild red rash to the groin area, which was tinea cruris. Physical examination of the bilateral feet and toes revealed dry scaly skin, mostly to the plantar area, with discolored, thickened and brittle hypertrophic toenails on all toes, bilaterally. It also revealed mild, moist and pinkish rash between the toes of both feet, which the VA examiner noted was tinea pedis/onychomycosis. As for the Veteran's tinea pedis and onychomycosis, the VA examiner opined that it was less likely than not related to the Veteran's military service. In support of this opinion, the VA examiner noted that despite the Veteran's claims of having received multiple treatments for this condition during service, his service treatment records were completely silent as to any treatment for or diagnosis of either condition. The report also noted that this condition was normal on his March 1975 separation examination. As for his tinea cruris, the VA examiner opined that it was less likely than not related to the Veteran' military service. In support of this opinion, the VA examiner noted that there was no current evidence of cellulitis of the penis; and no evidence of tinea cruris during the Veteran's military service. The Veteran is competent to state that he sought treatment for a skin disability involving his feet and groin during service. The Board, however, finds the probative value of the Veteran's statements and testimony to be outweighed by the other evidence of record. The January 1975 hospitalization report noted that inflammation of the cellulitis of the penis resolved rapidly, and no subsequent treatment was indicated. The Veteran's service treatment records are completely silent as to any treatment for a skin disability of the feet. The Veteran's March 1975 separation examination noted normal findings concerning his skin, lymphatics, genitourinary system, and feet. During his December 2011 VA examination of the skin, the Veteran reported that his inservice skin disability of the feet had resolved after he had sought treatment, and that he did not recall having any symptoms of this condition at the time of his separation from service. He also indicated that the symptoms did not reappear until ten years later. The VA examiner in January 2013 opined that the Veteran's tinea pedis and onychomycosis of the bilateral feet were less likely than not related to his military service. The VA examiner further opined that the Veteran's tinea cruris was not related to his military service, and that there was no current evidence of cellulitis of the penis. In addition, the Board notes that the first post service complaint or reference of any kind skin disability was in 2003, over 27 years after the Veteran's discharge from the service. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). To the extent that the Veteran contends that service connection for a skin disability, other than PFB, is warranted based on a continuity of symptomatology since service, 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), which does not include tinea pedis, onychomycosis, or tinea cruris. See Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013). Finally, none of the Veteran's skin disabilities are entitled to a presumption of service connection based upon exposure to Agent Orange. 38 C.F.R. 3.307, 3.309 (2012). Under these circumstances, the Board must conclude that service connection is not warranted for a skin disability, other than PFB. In reaching this decision, the Board has considered the doctrine of reasonable doubt, but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Service connection for a skin disability, other than PFB, is denied. REMAND The Veteran is seeking service connection for a heart disability. He is also seeking entitlement to an initial evaluation in excess of 70 percent for major depressive disorder and anxiety disorder; and entitlement to TDIU benefits. Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In August 2012, the RO issued a rating decision which granted service connection at a 70 percent initial evaluation for major depressive disorder and anxiety disorder, effective from June 2003. In its Written Brief Presentation, the Veteran's representative argued that the Veteran's service-connected psychiatric disability aggravated his claimed heart disability. In support of this contention, the Veteran's representative submitted medical articles from the internet, one of which that indicated: The most consistently shown biological abnormality in major depression is increased activation of the hypothalamic-pituitary-adrenal axis. Hypercortisolism is known to decrease bone mineral density and to redistribute body fat, increasing the risk of coronary artery disease. ... Depression is an illness with major social, psychological, and biological consequences. Clinicians are well aware of the potential cardiac impact of tricyclic antidepressants, but for too long we have ignored the important physical sequelae of depression itself. Under these circumstances, the RO must schedule the Veteran for a new examination to provide an opinion as to whether any current heart disability was caused or aggravated by his service-connected major depressive disorder and anxiety disorder. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Jandreau v. Nicholson, 492 F.3d. 1372, 1377, n.4 (Fed. Cir. 2007) (holding that a layperson is competent to identify observable symptoms). In August 2012, the RO issued a rating decision which granted service connection at a 70 percent initial evaluation for major depressive disorder and anxiety disorder, effective from June 2003. In its March 2013 Written Brief Presentation, the Veteran's representative filed a notice of disagreement contesting the initial evaluation assigned to this condition. As the RO has not yet issued a statement of the case addressing this issue, the Board must remand this issue for the RO to issue a statement of the case and to provide the Veteran and his representative an opportunity to perfect an appeal of such issue. Manlicon v. West, 12 Vet. App. 238 (1999). The issue of entitlement to TDIU benefits was also raised in the March 2013 Written Brief Presentation. The RO has not yet sent a notification letter to the Veteran concerning this issue, and has not yet adjudicated it. Therefore, the issue must be remanded to the RO for proper notification to be sent to the Veteran, followed by an initial adjudication of this issue. Rice v. Shinseki, 22 Vet. App. 447, 453 (2011). Accordingly, the case is REMANDED for the following action: 1. A proper notice letter concerning the Veteran's claim seeking entitlement to TDIU benefits must be sent to the Veteran. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). 2. Request that the Veteran identify, and then obtain, any updated treatment records relating to his disabilities on appeal since April 2011. If any identified records cannot be obtained, a letter should be sent to the Veteran informing him of the steps taken to obtain the records, listing alternative sources, and requesting him to furnish any such records in his possession or to identify the possible location of such records. 3. Schedule the Veteran for an examination to consider the etiology of his current heart disability. All indicated tests and studies should be performed. The entire claims file (i.e. both the paper claims file and any medical records contained in Virtual VA) should be made available to and be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any treatment records contained in Virtual VA file must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current heart disability was incurred or aggravated during his military service. If not, the examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's heart disability has been aggravated (i.e., increased in severity beyond the natural progress of the condition) by his service-connected major depressive disorder and anxiety disorder. A complete rationale must be provided for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination, and to cooperate in the development of his claims. The consequences for failure to report for an examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and placed in the claims file which shows that notice scheduling the examination was sent to the last known address and whether any notice that was sent was returned as undeliverable. 5. After completing the above, and any other development as may be indicated, re-adjudicate the issues on appeal. If any claim remains denied, provide the Veteran and his representative with a supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs