Citation Nr: 1316193	
Decision Date: 05/16/13    Archive Date: 05/29/13

DOCKET NO.  09-47 386	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for eczema of the arms. 

2.  Entitlement to an evaluation in excess of 10 percent for degenerative arthritis, thoracolumbar spine.


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

C. Bosely, Counsel




INTRODUCTION

The Veteran had active service from August 2001 to May 2004. 

This matter originally came before the Board of Veterans' Appeals (Board) on appeal from July 2008 and June 2012 rating decisions of the Department of Veteran's Affairs (VA) Regional Office (RO) in Roanoke, Virginia. 

The Veteran testified before the undersigned Acting Veterans Law Judge in a hearing at the RO in July 2011.  A transcript of the hearing has been associated with the claims file. 

In June 2012, the Board remanded the matter for further development.  

Regarding the claimed eczema of the arms, the Board in June 2012 explained that the appeal is limited in scope to that disorder alone.  Thus, the scope of the appeal does not reasonably encompass a claim of service connection for eczema of any other area of the body other than the arms or any other skin condition(s) more generally.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 86-88 (2009).  The Veteran was advised, and is again reminded, that he remains free to file a new and separate claim of service connection for a skin condition other than eczema of the arms, if he so wishes. 

Following the Board's remand, a rating decision was issued in December 2012 granting service connection for: (1) patellofemoral dysfunction, right knee; and (2) patellofemoral dysfunction, left knee.  Each disability was assigned an initial 20 percent disability rating effective July 11, 2007.  The Veteran was informed of this decision in February 2013.  At present, he has not filed a notice of disagreement (NOD) expressing dissatisfaction with any aspect of the December 2012 rating decision.  Accordingly, that matter is no longer before the Board.   See 38 C.F.R. §§ 20.200, 20.201, 20.302; Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (explaining that where a claim of service connection is granted during the pendency of an appeal, a second NOD must thereafter be timely filed to initiate appellate review concerning the compensation level or the effective date assigned for the disability).

In the June 2012 decision, the Board referred to the Agency of Original Jurisdiction (AOJ) a claim of entitlement to a total disability rating based on individual unemployability (TDIU).  However, the RO did not develop or adjudicate the claim of entitlement to a TDIU.  Therefore, the Board again does not have jurisdiction over the claim, and it is once more referred to the AOJ 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).

The issue of entitlement to an evaluation in excess of 10 percent for degenerative arthritis, thoracolumbar spine, currently 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.


FINDING OF FACT

The weight of the probative evidence is in relative equipoise on the question of whether eczema of the bilateral arms was incurred coincident with the Veteran's service. 


CONCLUSION OF LAW

By resolving all reasonable doubt in the Veteran's favor, his disability manifested by eczema of the bilateral arms is due to disease or injury that was incurred coincident with active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).  



REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that service connection is warranted for eczema of the arms, particularly his elbows.  

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service, including any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.38 U.S.C.A. § 1131; 38 C.F.R. § 3.303 (2012).  

Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999).  

Certain chronic diseases, listed in 38 C.F.R. § 3.309(a), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  If a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  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.  Id.  However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)."  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

(Because eczema is not a chronic disease listed in 38 C.F.R. § 3.309, the provisions above, regarding chronicity shown during service or continuity of symptoms after discharge, pursuant to 38 C.F.R. § 3.303(b), are not applicable in this case.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases.").  

In the instant case, the Board finds, after careful consideration of the evidence, that service connection is warranted for eczema of the bilateral arms, for the following reasons.

First, the Veteran testified at the July 2011 Board hearing that he was seen during service for his complaints and was treated with hydrocortisone cream.  The Veteran's service treatment records (STRs) do not confirm this testimony, but the Board finds that the Veteran's own assertions are competent and credible evidence of such.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay evidence is competent and sufficient evidence of a diagnosis if the layperson is reporting a contemporaneous medical diagnosis).  

Moreover, the Veteran has competently and credibly testified that his symptoms have continued, albeit intermittently, after service.  Id.  

Finally, the Veteran's post-service VA treatment records confirm a present diagnosis of eczema of the arms.  In particular, the Veteran was treated at VA in February 2008 for symptoms he reported as an eczema flare.  The physician diagnosed eczema, bilateral arms.  The Board observes that this diagnosis, especially when considering the symptoms described, is consistent with the Veteran's competent and credible testimony establishing a materially identical diagnosis during service.  

The Board finds that the above records are persuasive evidence, when considered collectively, of ongoing eczema since the Veteran's active duty service.  As such, the evidence is at least in a state of relative equipoise in showing that eczema of the arms was as likely as not incurred coincident with service.  38 C.F.R. § 3.303(d).  

The Board is mindful that the Veteran underwent a VA examination in June 2012 to address the medical questions raised by the case.  At the examination, the Veteran gave a history of itching and dry skin on both lateral forearms in the areas near the elbow, as present during service.  The VA examiner made a diagnosis of eczema, but opined that it is less likely as not (i.e., there is at least a 50 percent probability) that eczema of the arms had its onset during service or is otherwise causally related to any event or circumstance of his service.  The VA examiner reasoned that she was unable to locate any medical notes in the STRs that document eczema.  The examiner explained that although the Veteran did have a different skin condition, tinea versicolor while in service, this resolved and is not the same condition that he is claiming as eczema of the lateral aspect of elbows.  The VA examiner summarized that there is no diagnosis of eczema in service and no chronicity is documented, and the Veteran does not have evidence of any eczema during the instant examination.  

The Board finds that this VA examination, while probative, does not outweigh the favorable evidence discussed above.  To the contrary, the VA examiner relied substantially on a lack of documented evidence in-service and after service.   The VA examiner did not address the Veteran's own statements of such, and the examiner did not otherwise discuss why lack of documentation of the symptoms was medically significant.  As such, the VA examiner's opinion has reduced probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Buczynski v. Shinseki, 24 Vet.  App. 221, 223-24 (2011); Kahana, 24 Vet. App. at 440 (2011) (Lance, J., concurring) (setting forth the factual and analytic predicate for finding that an absence of evidence is substantive negative evidence).    

In conclusion, the Board finds, after resolving all reasonable doubt in the Veteran's favor, that the evidence is at least in a state of relative equipoise on all material elements of the claim.  Accordingly, service connection is warranted and the claim is granted.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303; .  Fagan v. Shinseki, 573 F.3d 1282, 1287 (2009).

As a final matter, the Board observes that the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Here, the disposition is fully favorable to the Veteran.  Therefore, the Board finds that all notification and development action necessary to render a fair decision on the matter has been accomplished.  


ORDER

Service connection for eczema of the bilateral arms is granted.  


REMAND

In July 2012, the RO issued a rating decision denying a claim of entitlement to an increased disability rating for degenerative arthritis, thoracolumbar spine.  In August 2012, the RO sent the Veteran a letter recognizing his disagreement with the determination made in the July 2012 rating decision.  Although the actual notice of disagreement (NOD) is not presently associated with the claims file, the Board must acknowledge the RO's August 2012 letter.  Accordingly, the matter is in appellate status before the Board.  However, a decision may not be made on the issue at this time.  

In cases before the Board in which a claimant has timely filed a NOD with a determination of the agency of original jurisdiction (AOJ) on a claim, but the record reflects that the AOJ has not subsequently granted the claim in full and has not furnished the claimant with a Statement of the Case (SOC), the Board must remand the claim to the AOJ with instructions to prepare and issue a SOC.  38 CFR § 19.9(c) (2012); see also Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).  

Consequently, under the circumstances of this case, the Board has no discretion but to remand this issue to the RO for the issuance of an SOC.  38 CFR § 19.9(c); see also Manlincon, 12 Vet. App. at 240-41.

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) (2009).  Expedited handling is requested.)

The RO must take the appropriate steps to issue the Veteran an SOC addressing the issue of entitlement to an evaluation in excess of 10 percent for degenerative arthritis, thoracolumbar spine.  The SOC must include (a) a summary of the evidence in the case relating to the issue; (b) a summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination; and (c) the AOJ's determination on the issue and the reasons for each its determination.  The SOC should also include a complete description of the Veteran's rights and responsibilities in perfecting an appeal on this issue, and afford him an appropriate time period to respond.  

Thereafter, if the Veteran files a timely substantive appeal (VA Form 9) on the issue, the RO should undertake any further action indicated, including readjudication the claim in light of the entire evidentiary record, as appropriate.

The Veteran has the right to submit additional evidence and argument on the matter the Board is remanding.  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. 2009).




______________________________________________
S.C. KREMBS
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs