Citation Nr: 1316727 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 10-43 683 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to service connection for a body rash. REPRESENTATION Veteran represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and Observer ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from July 1976 to August 1976, and from November 1980 to September 1992. The Veteran also served in the United States Army Reserve through June 1995. He served in Southwest Asia from January 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the VA RO in St. Louis, Missouri. The Board notes that the Veteran indicated on his January 2010 notice of disagreement (NOD) that he also disagreed with the December 2009 denial of his claim for service connection for index finger right hand cut. However, the RO granted service connection for status post laceration, index finger, right hand in a September 2010 rating decision. This decision was a complete grant of benefits with respect to this issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Therefore, this issue is no longer on appeal. In March 2013, a Travel Board hearing was held before the undersigned Veterans Law Judge (VLJ) at the St. Louis, Missouri, RO. A transcript of that proceeding has been associated with the claims folder. The Board notes that, 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) (2012) requires that the VLJ/Decision Review Officer (DRO) 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, the VLJ fully explained the issue on appeal during the hearing. Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claim. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). FINDING OF FACT The evidence of record does not show a body rash to be etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW A body rash was not incurred in or aggravated by active service, and may not be presumed to be related to service in the Persian Gulf. See 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.317 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim for service connection, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and 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. A VCAA letter dated in April 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, this letter notified the Veteran as to how appropriate disability ratings and effective dates are assigned. With regard to the duty to assist, the result of the RO's development indicates that some of the Veteran's service treatment records are unavailable. VA has a heightened duty to assist in these cases. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board concludes, however, that the heightened duty to assist has been met. Exhaustive attempts were made to obtain the Veteran's complete service treatment records. The RO made a formal finding, in September 2009, that the complete service treatment records could not be obtained and outlined the efforts that had been made to attempt to obtain them. The Veteran was notified in a September 2009 letter that some of his service treatment records, specifically his entrance and separation examination reports, could not be located and to submit them if he had them. No additional service treatment records were obtained. The claims file contains all available evidence pertinent to the claim, including certain personnel records, available service treatment records, and VA medical records. Additionally, the Board acknowledges that the Veteran indicated at the March 2012 hearing that he sought treatment at Phelps County emergency room the first time that he experienced this rash. However, he further indicated that no diagnosis was rendered at that time and he was simply recommended to take Benadryl. The Board notes that the Veteran was specifically informed in the April 2009 VCAA letter that it was his responsibility to submit any treatment records related to his claimed condition or to submit an Authorization and Consent to Release Information form if he would like VA to attempt to obtain any records. The Veteran has submitted no such form. Moreover, he has given no indication that he would like VA to obtain these records or that he believes these records would be pertinent to his claim. As such, the Board finds that all records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim, and VA has fulfilled its duty to assist. With regard to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran was provided a VA examination for his claim in May 2012. The examiner reviewed the claims file, considered the Veteran's assertions, and thoroughly examined the Veteran. The Board finds this examination report and opinion to be thorough and complete. Therefore, the Board finds this examination report and opinion are sufficient upon which to base a decision with regard to this claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. 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. When all the evidence is assembled, 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the present case, the Veteran is seeking service connection for a body rash as a result of his active duty service, to include as due to an undiagnosed illness resulting from his service in the Persian Gulf region during the Persian Gulf War. Such claims are governed by 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. A Veteran must present some evidence (1) that he or she is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a) (2012); 76 Fed. Reg. 81834 (Dec. 29, 2011); see Neumann v. West, 14 Vet. App. 12, 22 (2000), vacated on other grounds, 14 Vet. App. 304 (2001) (per curiam order). Unlike service connection on a direct basis, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 do not require competent medical nexus of a link between the qualifying chronic disability and military service. Service connection is presumed unless there is affirmative evidence to the contrary. See 38 C.F.R. § 3.317(c); Gutierrez v. Principi, 19 Vet. App. 1 (2004). Section 3.317 explicitly acknowledges that a claimant's "signs or symptoms" need not be shown by medical evidence; however, the regulation does specifically require some "objective indications" of disability. See 38 C.F.R. § 3.317(a) (2012). "'Objective indications of chronic disability' include both 'signs,' in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical, indicators that are capable of independent verification." 38 C.F.R. 3.317(a)(2) (2012); Neumann, supra. Thus, although medical evidence of signs or symptoms is clearly not required to grant a claim, the regulation does require that there be some objective, independently verifiable evidence of the symptoms. Id. A Persian Gulf Veteran is a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317. The Veteran's military records document that he served in Southwest Asia during the pertinent time period. In cases where a Veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. §§ 1110 and 1131 is warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (specifically addressing claims based on ionizing radiation exposure). Thus, the presumption is not the sole method for showing causation. However, as noted above, where the issue involves a question of medical diagnosis or causation, as presented here, a claimant must establish the existence of a disability and a connection between the Veteran's service and the disability. Specifically, the Veteran asserted in his January 2010 notice of disagreement (NOD) that his body rash is not associated with poison ivy that he was treated for in April 1986. The Veteran asserted that his rash is due to exposure to unknown chemicals while on duty during Desert Storm. At the March 2013 hearing, the Veteran asserted that his poison ivy does not resemble his current body rash in any way. A review of the Veteran's service treatment records reveals that the Veteran denied having any skin disease in his September 1980 Report of Medical History. In July 1981, the Veteran complained of a skin rash times 1 week. It was noted that he had a rash on both arms, and he was diagnosed with poison ivy. In August 1981, the Veteran complained of a skin rash on his left cheek times 7 days, which was assessed as acne. The Veteran was noted as having a cystic lesion of his right cheek in March 1982 and an abscess on his right check in June 1982. In April 1986, the Veteran was noted as having a rash on his neck area times 3 days and was assessed as having a poison ivy rash. In June 1986, the Veteran was noted as having left forearm poison ivy. VA treatment records document a diagnosis of dermatitis, not otherwise specified. An October 2010 VA treatment record documented the Veteran's complaints of experiencing hives all over his body every 3 to 4 months. The Veteran underwent a VA examination in May 2012. The examiner reviewed the claims file. The examiner noted that the Veteran had a diagnosis of poison ivy dermatitis, with an unknown date of diagnosis, first documented in 1981, and urticaria, with a 1990s date of diagnosis. The Veteran reported the onset of episodes of hives beginning in late 1992 or early 1993, several weeks to months after separation from the Army. He recalled that he was doing construction work at the time and that the first episode occurred then while at work. He would break out in hives on his whole body. He did not seek medical care at the time as far as he can recall. The Veteran indicated that he first went to a doctor about it several years later in Rolla, around perhaps the later 1990s. He was treated with Benadryl. He has continued to have this occur about 2-3 times per year on average. It occurs randomly with no known triggers or cause identified in the years since it started. It usually is an extensive outbreak of hives for one day and then starts going down back to normal over the course of a few days after taking Benadryl that has been prescribed for this. The examiner noted that the photographs in the claims file are pictures that were taken during an episode of hives. The Veteran also reported having poison ivy. The first episode he recalled of this was in 2002, and he stated that he does not remember ever reacting to poison ivy or similar contact reaction prior that. He has had a few episodes of this since 2002 when there has been contact with poison ivy vegetation and which he treats with calamine lotion. The poison ivy rash occurs in isolated skin areas only and he stated that it is very easy for him to tell the difference between this and the episodes of hives that he gets as described above and that there is no relation between the two in regards to when they occur and what the symptoms are like. The examiner determined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran does not suffer from any residual disability related to episodes of poison ivy during service. The service treatment records show that he was treated for poison ivy on several occasions between 1981 and 1986. A diagnosis of poison ivy was given on July 14, 1981, during his first year of service when he had it on his arms. He had treatment for poison ivy dermatitis as well in April and June 1986. The Veteran did not recall these episodes or any other episodes of poison ivy prior to about 2002. Based on this history and the service treatment records, the Veteran is sensitive to poison ivy and has most likely been so for decades but there is no relationship to the condition and his active duty service. Poison ivy occurs upon contact with the plant material and individual may have varying reactions to it over the years, as apparently is the case in this Veteran. This allergic skin reaction is related to genetic predisposition or sensitivity to it. He may have had initial episodes when young and then perhaps there were many years when he did not have contact or noticeable rash, and then in the past 10 years again had a few episodes of this condition. In any case, there is no residual disability or relation to active duty service. With regard to the Veteran's diagnosed urticaria, the examiner also determined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The Veteran's first episode of urticaria occurred after his separation from the military. There is no documentation as to when this occurred exactly but the Veteran very clearly remembers that it happened while at work in a construction job he had at the time after his military service. As is often the case, the Veteran's urticaria condition does not have a known cause or trigger. There are hundreds of possible causes and this will likely never be known if it is not by now. In any case, the initial episode would not have occurred months to years after a possible contact during Desert Storm. The Veteran recalls getting a letter or seeing something about hives being caused by chemical or contact during Desert Storm, and this is his concern, as voiced to the examiner, but if that were the case, the initial episode would not likely have occurred while doing construction work months to years later. For these reasons, the examiner determined that the Veteran's urticaria condition is less likely as not related to his active duty service. In a June 2012 VA treatment record, the Veteran expressed concern about an ongoing rash on his upper extremities and face and scalp since being in Iraq. He was diagnosed with chronic dermatitis. With regard to granting service connection on a presumptive basis under 38 C.F.R. § 3.317, the Veteran was diagnosed at the May 2012 VA examination with poison ivy dermatitis and urticaria. Therefore, as the Veteran has been noted as having a diagnosed skin disability, service connection for a body rash as due to an undiagnosed illness cannot be granted on a presumptive basis under 38 C.F.R. § 3.317. With regard to granting service connection on a direct basis, there is no medical evidence of record indicating that the Veteran has a body rash of any kind that was caused or aggravated by his active duty service. Moreover, the only medical opinion of record on the matter specifically reflects that it is less likely than not that the Veteran's poison ivy dermatitis and urticaria were incurred in or caused by the claimed in-service injury, event, or illness. In rendering this opinion, the May 2012 VA examiner took into account the Veteran's in-service complaints of poison ivy and discussed the Veteran's concern over chemical exposure during Desert Storm, and his post-service development of urticaria. However, after consideration of all relevant evidence of record, to include the Veteran's assertions, this examiner determined that the Veteran's diagnosed skin disabilities are not related to service. The claims file contains no medical opinions to the contrary. The Board acknowledges the Veteran's lay contention that his body rash is a result of chemical exposures during his active duty service. With specific regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Regarding nexus, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology. See id., at 1376-77. In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Here, the Veteran's diagnosed disabilities of poison ivy and urticaria are certainly capable of lay observation, in so far as to establish that the disability exists. The Veteran can see the rash that appears on his body. However, the Board finds that the cause of these disabilities is not capable of lay observation. Specifically as the Veteran has described it, the rash he gets just appeared sometime after he separated from service. He has offered no reason for believing it is tied to specific exposures he had while in the service, nor has he indicated that he was afflicted with the rash at the time of those exposures. As the cause of such skin disabilities involves the complex cellular workings of the body, and has not surfaced at the same time as any particular exposure, the Board finds that the Veteran is not competent to opine as to why he has this rash. As such, his opinion is afforded little weight in the analysis of whether service connection is warranted. By contrast, the medical professional who examined the Veteran and reviewed his medical and military histories has offered an opinion with supporting explanation as to why in his judgment, the rash is not related to service. As explained above, that opinion is supported by the record. For these reasons, the Board places significant weight on the medical opinion of record, which finds against service connection. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for a body rash, and the benefit-of-the-doubt rule is not for application. ORDER Entitlement to service connection for a body rash is denied. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs