Citation Nr: 1317324 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 07-24 261A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a skin condition. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from June 1981 to July 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran had a video hearing before the Board in June 2009 and the transcript is of record. The case was brought before the Board in October 2009 and August 2011, at which times the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim, to include affording him a VA examination. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. FINDING OF FACT The Veteran's currently diagnosed vitiligo, tinea corporus, and eczema were not manifested during service and are not otherwise attributable to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a skin condition have not been met. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Assist and Notify Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that the duty to notify was satisfied by pre-adjudication letters sent to the Veteran in December 2005 and March 2006 as well as a March 2007 letter addressing the Veteran's claim that his skin condition may be related to in-service asbestos exposure. The letters addressed all of the notice elements and the issue has since been readjudicated many times, most recently in a June 2012 Supplemental Statement of the Case (SSOC). The duty to assist was also met in this case. The Veteran's service treatment records are in the claims folder. All pertinent VA treatment records and identified private treatment records have been obtained and associated with the file to the extent possible. A VA examination with respect to the issue on appeal was obtained in February 2010 and the examiner also provided an addendum opinion in August 2011. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination and addendum opinion obtained in this case adequate. The examiner thoroughly examined the Veteran, offered diagnosis opinions, and reviewed the claims file. Within the August 2011 addendum opinion, the examiner more specifically addressed the Veteran's contentions and provided a nexus opinion with a complete rationale stated, considering and noting all pertinent evidence of record. Thus, the Board finds that VA has satisfied the duty to assist the Veteran and may proceed to consider the merits of the claim. Service Connection (Skin) Service connection may be established for disability resulting from personal injury suffered or disease contracted in the 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. §§ 1110. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Here, the Veteran claims he first noticed white "spots" on his waist and bilateral upper arms during his military service. He says he spoke to a physician about it during his separation examination from the military where the physician told him it was likely a reaction to the laundry detergent used on board the Naval ship and will likely go away. The Veteran claims the spots never went away, but rather progressed. Service treatment records, however, are completely silent as to any complaints, diagnoses or treatment for skin related problems. The July 1984 separation examination notes a scar on the Veteran's chest at time of separation, but otherwise found no skin abnormalities. The examination also makes no mention of the Veteran's concern of white spots on his waist or upper arms at time of separation. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Visser v. Packer Engineering Assoc., Inc., 924 F.2d 655, 659-60 (7th Cir.1991) (lay assertion cannot be "flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from [the witness's] experience;" witness not competent to describe motive because testimony too much like psychoanalysis, for which witness not qualified). As explained above, where a condition is readily identifiable, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr, 21 Vet. App. at 309 (emphasis added). The Board concludes the Veteran is, at the very least, competent to observe various skin abnormalities on his body. Skin diagnoses, however, are not considered "chronic conditions" under 38 C.F.R. § 3.309(a) and, therefore, service connection cannot be established merely because the Veteran claims continuous symptoms since service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a)). After service, the Veteran testified at his hearing that although the spots never really went away, it was years before he actually sought out treatment simply because they did not bother him very much. In fact, the claims folder does not contain evidence of any post-service treatment until January 2006, over two decades after service. At that time, the Veteran sought treatment for "bleach spots" on his legs, lower stomach and arms, indicating a history of 20 years. The Veteran was diagnosed with vitiligo. A February 2006 private treatment record indicates bleaching spots on the bilateral arms and bilateral legs that the Veteran self-reported started in the Navy 23 years ago. The physician at that time felt the problem was clinically benign, and merely diagnosed the Veteran with "questionable scarring." In April 2006, private treatment records indicate a diagnosis of depigmentation of the shins and forearms, to include the abdomen and feet in the summer months. VA outpatient treatment records show the Veteran sought out treatment in 2009 for "spots" on his skin with a 25 year history, beginning in the military. A VA dermatologist, in September 2009, diagnosed the Veteran with ill defined scattered hypopigmentation. Although the VA physician noted the Veteran's contention that he was told in service that the spots were related to laundry detergent, the physician opined the hypopigmentation is not related to exposure from detergent 25 years ago. The VA dermatologist also diagnosed the Veteran with tinea cruris, but did not address its etiology. The Veteran was afforded a VA examination in February 2010 where the examiner noted the Veteran's contentions regarding when the spots began and being told it was likely due to the laundry detergent used aboard the naval ship. In fact, the examiner noted the initial response was probably wise given the complained problem was in spots of elastic on underwear and shirt. The examiner further noted the Veteran's contention that the spots never really went away. After a through physical examination, the examiner diagnosed the Veteran with: tinea corporus, active, vitiligo - depigmentation (benign, but progressive), and active eczema. Etiology was addressed in both the February 2010 examination report and a subsequent August 2011 addendum (where the examiner specifically considered the Veteran's lay statements). The examiner found it unlikely that any of the skin diagnoses were related to his military service because, based on the relevant medical literature, tinea corporus may be gained from exposure to readied skin no matter the occupation, military or civilian, and vitiligo and eczema are typically immune system and dermatological self-developed conditions. Although the examiner considered the Veteran's lay statements regarding the spots he observed in service, the examiner found the fact that the service treatment records were completely silent to a diagnosed skin condition, particularly the July 1984 separation examination, more probative. The examiner found the Veteran's statements of signs and symptoms simply do not equate to a medical diagnosis and no such medical diagnosis is confirmed in his service-treatment records. For those reasons, the examiner found it not likely that the Veteran's current skin diagnoses were incurred in or otherwise attributable to any incident of his military service. The Board finds the VA examination and addendum opinion persuasive. In the aggregate, the examiner's opinions are based on a thorough physical examination, a complete review of the claims folder, and consideration of the Veteran's lay statements, to include in-service observation of skin abnormalities. As an aside, the Board notes the Veteran at one point indicated he was exposed to asbestos while on board the USS Enterprise in the Navy. While he does not if his skin condition was caused by asbestos or not, he does believe, at the very least, he was exposed to asbestos. Skin disabilities have not been identified by VA as a disease likely to result from exposure to asbestos. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, 9. Further, the Veteran was asked to provide information regarding his claimed exposure to asbestos in a March 2007 letter. He was also submitted many letters asking him to identifying any medical records pertinent to his claim, to include linking his skin condition to asbestos exposure. The Veteran did not respond with any such evidence. No medical professional has ever linked any of the Veteran's skin diagnoses with claimed in-service exposure to asbestos. In short, the Veteran indicates he first observed skin abnormalities in the form of white spots on his waist and upper arms prior to his separation from the military, but was told the spots were likely a reaction to the soap or laundry detergent used on board the naval ship. The Board has no reason to doubt the Veteran's credibility, but despite his observations, his service treatment records are silent as to an actual diagnosed skin disability at that time. After service, the Veteran was diagnosed with various skin conditions, such as vitiligo, eczema, and tinea corporus, over two decades after service. No medical professional has ever linked any current diagnosis to any incident of his military service, to include soap, laundry detergent, or asbestos. Indeed, there are medical opinions to the contrary. While the Veteran's lay statements were considered, the Board finds the medical evidence in this case more persuasive. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) ("VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to...."). The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for the Veteran's claimed skin condition is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for a skin condition is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs