Citation Nr: 1313591	
Decision Date: 04/23/13    Archive Date: 05/03/13

DOCKET NO.  11-06 198	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a skin disability.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and R. E.


ATTORNEY FOR THE BOARD

M. Mac, Counsel



INTRODUCTION

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).

The Veteran served on active duty from July 1953 to May 1955.

This matter comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 

A hearing before a Decision Review Officer (DRO) was held in June 2010.  A transcript of the hearing has been associated with the claim file.

A review of the Virtual VA paperless claims processing system does not reveal any 
additional documents pertinent to the present appeal.

In February 2013, the Board remanded the issue for further development.  As the requested development has been completed, no further action to ensure compliance with the remand directive is required.  Stegall v. West, 11 Vet. App. 268 (1998).

In the February 2013 remand, the Board noted that during the June 2010 hearing, the Veteran may have raised a claim of entitlement to compensation under 38 U.S.C.A. § 1151 for bleeding sustained from a VA colonoscopy and referred it to the RO for appropriate action, however the issue remains unadjudicated.  In April 2013, the Veteran appeared to raise a claim of service connection for a stress disorder.  The Board refers both issues 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 does not have a skin disability as a result of VA treatment.  


CONCLUSION OF LAW

The criteria for compensation under 38 U.S.C.A. § 1151 for a skin disability have not been met.  38 U.S.C.A. § 1151 (West 2002 Supp. 2012); 
38 C.F.R. §§ 3.102, 3.159, 3.361, 17.32 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

Duty to Notify

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. 

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  

The VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: (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 VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The RO provided a pre-adjudication VCAA notice by letter dated in July 2009.  The Veteran was notified of the evidence needed to substantiate the claim of entitlement to compensation under 38 U.S.C.A. § 1151, as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claim.  

Duty to Assist

VA has fulfilled its duty to assist in obtaining all identified and available evidence needed to substantiate the claim.  All identified VA medical records, non-VA medical records, and lay statements have been associated with the claims folder.  Further, a VA opinion was obtained in March 2013, which addresses whether the Veteran has an additional skin disability caused by VA treatment and is based on a fully adequate rationale.  Thus, with respect to the Veteran's claim, there is no additional evidence which needs to be obtained.  

Legal Criteria

The law provides that compensation may be paid for a qualifying additional disability not the result of the Veteran's willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the Veteran when the proximate cause of the disability was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not recently foreseeable.  38 U.S.C.A. § 1151.

VA regulations provide that benefits under 38 U.S.C.A. § 1151(a) for claims received by VA on or after October 1, 1997, as in this case, for additional disability due to hospital care, medical or surgical treatment, examination, require actual causation not the result of continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished, unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress.  38 C.F.R. § 3.361.

If additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met.  In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the Veteran's additional disability.  See 38 C.F.R. § 3.361(c)(1).

In addition, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause.  38 C.F.R. 
§ 3.361(d).  It must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability, and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the informed consent of the Veteran or the Veteran's representative. 

To establish the proximate cause of an additional disability or death, it must be shown that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination. Whether the proximate cause of a veteran's additional disability or death was an event not recently foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen.  38 C.F.R. § 3.361(d).

Analysis

The Board has an obligation to provide adequate reasons and bases supporting its decision, however there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the issue on appeal.  Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

In statements and testimony, the Veteran stated that he has a skin disability due to cardiac testing that he underwent in March 2008.  He contends that VA's treatment constituted carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical care, such that he had complications, resulting in his dermatitis.  The Veteran claims that dyes injected during a nuclear stress test on March 27, 2008 at the VA Medical Center in Murfreesboro caused his skin condition.  In a statement in August 2010, the Veteran asserted that the VA nuclear stress test caused his face to burn.  After the tests, his face continued to burn and his hands turned "blood red".  During the DRO hearing in June 2010, the Veteran testified that his face continued to burn, as well as his arms and back, he lost pigment in his skin, and experienced itching.  The Veteran acknowledged that forty years earlier he had a reaction to some kind of substance that caused pigment to fade from his fingers.  He testified that a VA lead patient advocate with the Tennessee Valley Health Care System, R.S., told him that the solution used during his cardiac testing caused his skin condition.  

At the outset, the Board notes that the Veteran is competent to describe what he has personally experienced, including the symptoms he has experienced and the medications he has used.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Under certain circumstances, a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Here the etiology of his skin disability is a complex medical matter beyond the ken of a layperson.  Jandreau v. Nicholson, 492 F.3d 1372 (2007).  Whether the Veteran has a skin disorder that is related to the nuclear stress test or medication requires specialized training for a determination as to causation, and is therefore not susceptible of lay opinion.  In this regard, a medical professional has greater skill. 

The threshold question in this case is whether there is an additional skin disability that resulted from VA treatment.  VA records show that on March 27, 2008, the Veteran underwent cardiac testing, to include a cardiovascular stress test and myocardial perfusion study.  The examiner noted the Veteran had a history of hypertension and complained of exertional dyspnea.  He was injected with 11.0 mCi of Tc 99 tetrofosmin at rest and 30.9 mCi during a 6 minute adenosine infusion of 70.6 mg.  Prior to the testing, on the same date, the Veteran signed a consent form indicating that he was advised of the nature, risks, and possible complications of his nuclear stress test.  

VA treatment records show that in August 2008, the Veteran reported a burning feeling of the skin.  He stated that he did not have this problem until he started taking calcium with vitamin D.  The Veteran reported that he had a rash for the past month accompanied by itching, burning, and change in pigment.  The record also shows that the Veteran had multiple areas of erythematous patches that were worse in sun-exposed areas, but also on the back.  His hands and parts of his arms were without pigment.  The physician concluded that his dermatitis was a suspected reaction to Lisinopril, prescribed for blood pressure, and discontinued its use. 

VA records in January 2009 show that the Veteran reported that he had a rash due to a dye used during a MRI, however the examiner noted that the records indicate that the Veteran was referring to a nuclear stress test.  In July 2009 the records show the Veteran had hypopigmentation due to unknown etiology.  

Dermatological records from November 2008 to February 2009, show the Veteran had a skin disorder essentially diagnosed as seborrheic dermatitis affecting his upper body and scalp, which was manifested by hypopigmentation, rash, telangiectasia, and pruritus.  

In March 2013, an opinion was obtained from a VA physician, who reviewed the claims folder and noted that the Veteran's skin disability has been diagnosed as seborrheic dermatitis.  The examiner found that there was no negligence, inappropriate delay in treatment/diagnosis, carelessness, lack of proper skill, or other apparent instance of fault on the part of VA in evaluating the Veteran's heart condition, administering drugs at the time of the nuclear stress test or in prescribing Lisinopril.  The examiner's rationale was that there is no known or pathophysiologically plausible association between seborrheic dermatitis and Lisinopril or Tc 99m tetrofosmin or adenosine, which were injected during the March 2008 nuclear stress test.  In providing the rationale, the examiner cited to an article on Seborrheic Dermatitis published in the American Family Physician (Schwartz, RA, Janusz CA, Janniger CK.  Seborrheic dermatitis: An Overview.  Am. Fam. Physician.  2006 July 1;74(1): 125-30).  The VA examiner concluded that there is no evidence for causality between any VA treatment and the Veteran's current skin condition.  

In sum, the Veteran acknowledged that pigment faded from his fingers over forty years ago.  The March 2013 VA examiner ultimately opined that VA treatment did not cause any additional skin disability.  The Board finds the examiner's opinion to be significantly probative as the examiner in proffering the opinion considered the history and nature of the Veteran's skin disability, to include the Veteran's lay statements and the relevant clinical findings.  The VA examiner's opinion was based on medical principles and applied the facts of the case.  Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008).  While the Veteran has reported that a VA patient advocate employee told him that the solution used during the cardiac testing caused his skin condition, there is no documentation of such opinion in the record.  The Veteran was provided an opportunity to submit additional evidence and did not.  The Board finds that the March 2013 VA opinion, rendered by a medical doctor, to be more probative than the Veteran's lay report of an opinion rendered by another health care provider.  We also find that his relating of what he was purportedly told by a patient advocate is not within the parameters of Jandreau since there is no indication that a patient advocate is medically competent.  

The Board also notes that he has reported that he noted skin problems during his stress testing.  However, this statement is inconsistent with his initial report for treatment purposes that he did not have a rash until the prior month.  Clearly, he is an inconsistent historian.  Regardless, we find the report for treatment purposes to be far more probative than a report in support of a claim for monetary benefits.  

Therefore, weighing the evidence of record, after careful consideration of all procurable and assembled data, the Board finds that the preponderance of the evidence is against compensation under 38 U.S.C.A. § 1151 for an additional skin disability.  There is no doubt to resolve.  Accordingly, the claim is denied.


ORDER

Compensation under 38 U.S.C. § 1151 for a skin disability is denied.




____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs