Citation Nr: 1314428 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 11-15 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a skin rash of the hands. 2. Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from August 1953 to August 1959. This appeal arises from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran provided testimony before the undersigned Veterans Law Judge at a hearing in Houston, Texas, in September 2012; a transcript of that hearing is of record. A rating decision in March 2013 granted the Veteran's claim for service connection for a respiratory disability, claimed as chronic obstructive respiratory disorder. The Veteran has not disagreed with the ratings or effective date assigned, thus that matter is not on appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 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). FINDINGS OF FACT 1. Competent medical evidence does not establish that the Veteran has had a skin disability that is the result of in-service exposure to chemicals and solvents, to include a rash of the hands, at any time during the period on appeal. 2. The evidence of record is at least in equipoise as to whether the Veteran's lumbar spine disability, diagnosed as degenerative disc disease of the lumbar spine, is due to service. CONCLUSIONS OF LAW 1. A skin rash of the hands was not incurred in or aggravated by his active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. Lumbar disc disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in letters sent in April 2009 and February 2010. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The letters also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disabilities under consideration, pursuant to the holding in Dingess v. Nicholson, 19 Vet App 473 (2006). The claims were readjudicated in the March 2013 supplemental statement of the case. The Veteran was afforded a hearing before the Board, at which he presented oral testimony in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Veterans Law Judge sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims, to include medical opinions and records in support of the claims. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has any prejudice been identified in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims for service connection, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The claims file shows that the Veteran's service treatment records were destroyed in a fire at the National Personnel Records Center, and are unavailable. The Veteran was notified that his service treatment records were unavailable and the Veteran has had an opportunity to submit any records in his possession. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Because of missing records, the analysis below has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The claimant was provided the opportunity to present pertinent evidence. The Virtual VA file and available private and VA treatment records have been obtained. In addition, he has been provided with VA examinations in connection with his present claims. He has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. Service connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection must be considered on the basis of the places, types and circumstances of a Veteran's service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Skin Rash of the Hands The Veteran contends that he has a skin rash of the hands as a result of exposure to chemicals and solvents, including aniline and acetic acid, in service. After a full review of the record, including the medical evidence and statements made by and on behalf of the Veteran, the Board finds that the claims for service connection for a skin rash of the hands must be denied. As a layperson, the Veteran is certainly competent to testify to symptomatology such as a skin rash. Lay assertions may serve to support a claim for service connection when they relate to the occurrence of events that are observable as a lay person or the presence of a disability or symptoms of a disability that are subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the existence of a disability even when not corroborated by contemporaneous medical evidence). However, while the Veteran's testimony is competent, it fails to demonstrate entitlement to service connection. At the outset, the Board notes that the Veteran's service treatment records are not available and have been certified as having been lost in a fire by the National Personnel Records Center. In cases where records once in the hands of the Government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991). After service, there is no medical evidence of treatment for a skin condition affecting the hands, or residuals of exposure to chemicals and solvents. The Veteran underwent a VA skin disorders examination in January 2013. He reported a history of dermatitis, described as a rash or allergic reaction affecting the hands, due to in-service exposure to chemicals and solvents in late 1954. Reportedly his hands blistered and peeled after he inadvertently attempted to remove the chemical with another chemical. He reported he did not need medication or treatment for the condition at the time. The Veteran denied treatment within the previous 12 months. On examination, the Veteran's skin was normal and the examiner found no evidence of a visible skin condition. The examiner described the Veteran as a fair 77 year old male with normal skin changes that occurred with aging. There was no evidence of scars, rash, or burns. While he had reported irritation on the back of the hands in service, no signs or irritation or scarring remained. The examiner concluded that there was no physical evidence of residuals from any type of skin condition that may have occurred in service. The Veteran was not under medical treatment for a skin disorder and there was no evidence of residuals of the in-service injury incurred 50 years earlier. Significantly, neither the Veteran nor his representative has presented or identified any existing medical opinion evidence that, in fact, supports the claim. The record does not show that the Veteran has experienced a chronic skin condition of the hands since service or at any time during the period on appeal. To the extent that the Veteran complains that his hands have been wrinkled, thin-skinned and frequently crack, the examiner concluded that the Veteran's hands were normal and showed changes consistent with aging. There was no evidence of scars, rash, or burns, consistent with residuals of exposure to chemical and solvents. Congress has specifically limited entitlement to service-connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110. Hence, in the absence of competent evidence of the chronic skin disability of the hands for which service connection is sought, there can be no valid claim for service connection for that disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Under these circumstances, the Board must conclude that the claim for service connection for a skin condition of the hands, to include a rash caused by in-service exposure to chemicals and solvents, must be denied. In reaching this conclusion, the Board notes that, under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be given to the claimant in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim in this case, and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lumbar Spine Disability The Veteran asserts that his current lumbar spine disability, diagnosed as degenerative disc disease, was incurred when he injured his back in service. Initially, as previously noted, the Board notes that the service treatment records could not be recovered from the National Personnel Records Center and are presumed to have been destroyed in a fire. The Veteran served as a missile launch crewman during service. In statements and at hearing, he reported injuring his back in service, sometime in 1956 or 1957, while attempting to remove a spare tire from the wheel well of a bus. Reportedly he was told by a physician at that time that x-rays revealed a ruptured disc. He was treated for a week with braces. Thereafter he resumed his duties, but continued to seek back treatment once or twice a week. The Veteran is both competent to describe his in-service accident and its resultant injuries, and the Board finds his descriptions to be credible. An in-service incurrence of a back injury is conceded. Following his release from service in 1959, the Veteran claims he sought medical treatment in 1962, at which time his back was treated with traction for a week. Reportedly, the Veteran underwent lumbar disc surgery in 1963. The treatment records from 1962 and 1963 are no longer available. The claims folder includes a record of surgery for herniated lumbar disc in 1989. Lending credibility to the Veteran's reported symptoms and treatment both during and after service is a 1990 medical treatment record that noted a history of lumbar disc surgery in 1963 that relieved right sciatica. It was also noted that a he had undergone a partial hemilaminectomy and discectomy at L4-5 level in 1989. The Veteran underwent a VA spine examination in January 2013. Following an examination of the Veteran the examiner diagnosed degenerative disc disease of the thoracolumbar spine and opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran's service treatment records and records documenting surgical treatment in 1963 for an acute herniated nucleus pulposus, were missing. Without at least the 1963 treatment record, the examiner stated that he was unable to determine whether service had caused the Veteran's back problems. Despite the examiner's opinion, the Board concludes that the Veteran's current back disability is related to his in-service accident. The Board finds that the examiner failed to consider the Veteran's credible report of a back injury in service. While the examiner also cited the lack of corroborative medical evidence since the Veteran's service detailing his back pain and treatment, the Veteran has consistently stated that he was treated for his back by private physicians whose records are no longer available. The Veteran has also stated that he suffered from back pain since the accident, and there is no indication of subsequent injuries to his back that could account for his pain. While the records for treatment rendered in the years following discharge from service are no longer available, the available medical records, specifically the 1990 medical treatment record, detail a history of lumbar disc surgery in 1963, which corroborates the Veteran's reports of symptomatology related to the back following discharge from service, as well as his reports of continued medical treatment since service. The Board notes that because the Veteran is competent and credible to report a back injury during active duty in 1956/57; back symptoms and treatment in service; recurrent back symptomatology and related treatment, to include lumbar disc surgery in 1963, since service; and current symptoms that form the basis for diagnosis of disability; and as there is competent, credible evidence that corroborates the Veteran's account of treatment after service, such evidence tends to relate the current degenerative disc disease of the lumbar spine to the Veteran's in-service injury. Resolving all reasonable doubt in the Veteran's favor, the Board concludes that the Veteran's back disability, lumbar disc disease, was incurred in service. ORDER Service connection for a skin rash of the hands is denied. Service connection for disc disease of the lumbar spine is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs