Citation Nr: 1316735 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 11-22 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for psoriasis (skin disability). 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD)/emphysema (respiratory disability). REPRESENTATION Appellant represented by: American Legion ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran had active service from February 1955 to August 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection. A notice of disagreement was received in July 2010, a statement of the case was issued in June 2011, and a substantive appeal was received in August 2011. The Veteran's notice of disagreement also initiated appeals on the issues of service connection for hearing loss and tinnitus. However, service connection for these two disabilities was granted by rating decision in June 2011. 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 service connection for a respiratory disability is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's skin disability is not causally related to his active duty service. CONCLUSION OF LAW A skin disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The record shows that in a September 2009 VCAA letter, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the Veteran in September 2009, which was prior to the April 2010 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, the notice requirements apply to all five elements of a service connection claim: 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). In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection. The September 2009 letter also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. Service treatment records (STRs) and pertinent treatment records are associated with the file. Additionally, the Veteran was afforded VA examinations in March 2010 and May 2011. Thus, the Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. Legal Criteria The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in 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. § 1131; 38 C.F.R. § 3.303. 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). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Factual Background Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran contends that he developed psoriasis as a result of working in the boiler room in service. He has also claimed that it is related to sunburn during service. A service enlistment examination was negative for any complaints or diagnoses. A June 1957 service treatment record (STR) noted the Veteran was treated for a sunburn, which resolved. That same month, the Veteran was also seen for a heat rash. He was given calamine lotion. On August 1957 service separation examination, it was reported that his skin was evaluated as clinically normal. Private treatment records from 2006-2009 show continued complaints related to the skin, including diagnoses and treatment for psoriasis. A January 2009 record includes history that the psoriasis started three years before. The Veteran was afforded a VA skin examination in March 2010. The Veteran was diagnosed with chronic, severe psoriasis. The examiner stated that he was unable to determine whether this was related to service without resort to mere speculation. Another VA skin examination was obtained in May 2011. Psoriasis was again diagnosed and the examiner opined that it is less likely than not related to military service. The examiner noted the Veteran's treatment in service for a first degree sunburn and heat rash, which both resolved. He indicated that there are no other records of skin issues while in the military. Additionally, the examiner pointed out that, "The cause of psoriasis isn't fully known, but it's thought to be related to the immune system and its interaction with the environment in people who have the genetic susceptibility." Mayo Clinic. Accordingly, the examiner concluded he could find no reason to believe the Veteran's psoriasis was caused by or occurred on active duty. Analysis The record reflects that the Veteran has a current diagnosis of psoriasis. What is left for determination is whether this disability is related to service. The STRs contain only two notations related to the skin, both of which were found to have resolved. Significantly, on separation examination, the Veteran's skin was clinically evaluated as normal. This demonstrated that military medical personnel after examining the Veteran were of the opinion that no skin disorders were present at that time. The Board acknowledges the Veteran's assertions that he developed psoriasis related to service. The Veteran is competent to report the types of symptoms he has experienced and continuity of symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). However, a VA medical examiner, with full knowledge of the Veteran's reports of psoriasis as related to service, was nevertheless of the opinion that the Veteran's current psoriasis is not causally related to service. The examiner specifically noted that psoriasis is thought to be related to the immune system and to have a genetic component. No medical evidence of record contradicts the May 2011 VA examiner's analysis addressing the nature and etiology of the Veteran's current psoriasis, or otherwise relates this disability to service. Additionally, while not determinative by itself, it is also significant that there is no evidence of a skin disability for approximately 50 years after service. This lengthy period without complaints or treatment after service also suggests that there has not been a continuity of symptomatology. See Maxon v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). To the extent that the Veteran may be contending that his skin disability began during service and has continued to the present time, the Board does not find such contentions to be credible when considered with the other evidence of record. Not only is there no supporting evidence of a continuity of symptoms since service, but it appears from a January 2009 medical record that the Veteran furnished a history to the examiner that the psoriasis began three years earlier. After a thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's claim for a skin disability. Therefore, the appeal in this matter must be denied. ORDER Entitlement to service connection for a skin disability is not warranted. To this extent, the appeal is denied. REMAND A preliminary review of the record discloses a need for further development prior to appellate review of the respiratory disability issue. In this regard, the Board observes that the Veteran's contentions in pursuing a claim for service connection for a respiratory disability have implicitly raised a claim of entitlement to service connection for hypertension and heart disease. The Veteran's representative contends that if a heart disability is service connected, then the question of aggravation of COPD is raised. See April 2013 brief presentation. The Board notes that the March 2010 VA examination report indicates that the Veteran's "respiratory condition is most likely secondary to his cardiac condition." Thus, these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 138 (1991). Therefore, proper appellate review of the respiratory disability issue on appeal cannot proceed until the proper adjudication of the service connection for hypertension and heart disease claim is accomplished. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should take appropriate action to furnish VCAA notice and develop the new claims of service connection for hypertension and heart disease. The RO should then formally adjudicate these claims and furnish notice to the Veteran and his representative, including notice of appellate rights and procedures. 2. If, and only if, service connection is granted for hypertension and/or heart disease, the RO should take action to further develop and adjudicate the respiratory disability claim to under a secondary service connection theory (to include by aggravation.) 3. After completion of the above, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. The case should then be returned to the Board for appellate review of all issues which may properly be in appellate status at that time. The appellant has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs