Citation Nr: 1318097 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 05-38 195 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for dermatitis on the lower extremities, groin, buttocks and torso, to include as due to exposure to herbicides or as secondary to a service-connected fungal infection of the feet. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to service connection for dermatitis on the lower extremities, groin, buttocks and torso, to include as due to exposure to herbicides or as secondary to a service-connected fungal infection of the feet. The claims folder has since been transferred to the Cleveland, Ohio RO. Hearings on this matter were held before a Decision Review Officer in May 2007, and before the undersigned Veterans Law Judge sitting at the RO in April 2008. Copies of the hearing transcripts have been associated with the file. In July 2008 and February 2010, the Board remanded this issue to the RO (via the Appeals Management Center (AMC)) for further evidentiary development. The case is back before the Board for further appellate action. FINDING OF FACT Dermatitis on the lower extremities, groin, buttocks and torso did not have its clinical onset in service and is not otherwise related to active duty or a service-connected disability. CONCLUSION OF LAW Dermatitis on the lower extremities, groin, buttocks and torso, to include as due to exposure to herbicides was not incurred in or aggravated by active military service and is not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in August 2004 that addressed all notice elements and was issued prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. A letter dated August 2008 informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in an August 2008 communication, and the claim was thereafter readjudicated in, most recently, October 2011. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The provisions of 38 C.F.R. § 3.103(c)(2) imposes, two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the Veteran's hearings, the issues were identified and the Veteran was asked about treatment, medical opinions, and his service; in order to determine whether there was additional evidence that could substantiate the claim. The Veteran was additionally represented by Veterans Service Officer who questioned the Veteran thoroughly. The Board notes that the RO/AMC did not fully comply with the most recent remand in regards to obtaining a sufficient medical opinion to determine the Veteran's claim. Stegall v. West, 11 Vet. App. 268 (1998). However, the Board requested an opinion from a VA physician and the April 2013 opinion which was obtained provided sufficient information and analysis to decide the Veteran's claim. Thus, the Board need not remand for further development. Thus, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the Veteran's statements in support of the claim are of record, including testimony provided at an April 2008 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, direct service connection may not be granted without medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, the regulations provide that service connection is warranted for disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Additionally, a veteran who had active service in the Republic of Vietnam from January 9, 1962, to May 7, 1975, is presumed to have been exposed to an herbicide agent during that service. When such a veteran develops chloracne to a degree of 10 percent or more within the specified period, the disorder shall be presumed to have been incurred during service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2012). In evaluating the claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts historically had held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). However, in certain instances, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have generally been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran contended, most recently in May 2013, that he has had dermatitis over much of his body since his time in Vietnam during active service. The Veteran also claims that his dermatitis is secondary to his service-connected fungal infection of the feet with residual deformity of the toenails in the alternative. The Veteran (as of October 2010) is rated at 60 percent for service-connected fungal infection of the feet with residual deformity of the toenails. Turning to the evidence, the Veteran's separation report of medical history, completed by the Veteran, dated July 1967 indicates that he had no skin disability and no boils. However, a July 1966 treatment note, from Fort Meade, Maryland, indicates that the Veteran had athlete's feet. The claims file contains the Veteran's treatment records from a private physician dating from July 1969 to June 1987. The first notation of athlete's foot is dated July 1969. There is no notation of skin problems except on the Veteran's feet. A letter dated April 1997 from this physician indicates that six weeks after he left service, the Veteran presented himself for treatment of an interdigital raw open fungus infection to the dorsum of the feet bilaterally with similar lesions on the legs and other areas of the body. The physician indicated that the condition went from acute to chronic with very little or no symptoms after treatment. A March 1993 private treatment note indicates that the Veteran had an acute allergic reaction to lubricating oil which he was exposed to at his job. A February 1996 VA examination indicates no dermatitis except for fungal infection on both toenails. The Veteran was service-connected for a fungal infection of the feet by a rating decision in March 1996. The Veteran submitted a notice of disagreement dated April 1996, indicating that the jungle rot covers his whole body. An April 1996 VA treatment record indicates that the Veteran had a long history of tinea and had scaly lesions of the torso, groin and feet. A May 1996 letter from a private physician indicates that the Veteran had been off work due to a severe fungal infection, jungle rot to the lower extremities. An August 1996 hearing transcript (before a RO hearing officer) indicates that the Veteran and his spouse reported that he had a skin condition since service. A January 1998 VA skin examination indicates that the Veteran had no active skin disease on examination. However, he had eczematous dermatitis and possibly tinea pedis according to his treatment records. A September 1996 VA treatment note indicates that the Veteran complained of a chronic rash of the lower extremities since service. Additional VA treatment records indicate various treatments for skin conditions with a reiteration of the Veteran's allegations concerning a nexus between his conditions and service. The Veteran was provided a February 2005 VA examination. The examiner indicated that the Veteran's history was limited by his (the Veteran's) understanding; further noting that even though his treatment records indicate diagnoses of tinea pedis, onychomycosis and folliculitis from both yeast and bacterial organisms, the Veteran understood all of these problems as being "skin conditions" which onset during his tour of duty in Vietnam. There was no evidence of active disease at that time although there were residuals from previous episodes of folliculitis. The examiner indicated that a punch biopsy taken in October 2001 indicated acute supparitive folliculitis. The Veteran submitted a letter from a private physician dated August 2005. The physician indicated that the Veteran had suffered from dermatitis since the Vietnam War; further indicating that the Veteran had described in the past having inflammatory nodules which have been seen in people exposed to Agent Orange. The physician indicated that it was impossible for him to link the two (the Veteran's skin condition and Agent Orange exposure), but that some of what the Veteran described could be consistent with prior exposure. A February 2007 VA examination for diabetes diagnosed the Veteran with eczema, noting intact skin with no ulcers or open areas. A VA examination was completed in August 2008. The claims folder was not made available to the examiner as ordered in the July 2008 remand. Eczema was diagnosed; no etiology opinion was offered. The Veteran received another VA examination in November 2008. The examiner noted that records were reviewed in VA's Computerized Patient Record System (CPRS) was reviewed; thus, while it appears that the pertinent VA medical records were reviewed by the examiner, there is no indication that the claims folder, which includes a great deal of lay evidence and evidence submitted by private treatment providers, was made available. The Veteran's lay statements as to in-service onset of his skin disorder were noted. On physical examination, papules, macules, and areas of hyperpigmentation were noted on various parts of the Veteran's body. Folliculitis was diagnosed, based in part on the results of an October 2001 punch biopsy of the Veteran's lesions. No etiology opinion was offered. In September 2009, the examiner offered an addendum to her November 2008 examination report, finding that there was a "less than 50 percent probability" that the Veteran's folliculitis was related to his service, as folliculitis is "normally an acute process and the patient had limited disease that was not suggestive of systemic chemical exposure." She went on to note that the Veteran's onychomycosis (fungal infection of the feet) was related to his period of active service; however, the Veteran is already service-connected for onychomycosis. The examiner did not offer the requested opinion as to whether the Veteran's diagnosed folliculitis is secondary to his service-connected onychomycosis. An addendum was requested by the AMC pursuant to the February 2010 remand. The addendum, dated May 2011, mainly reiterated the September 2009 addendum, with the examiner copying and pasting the verbiage and indicating agreement. The examiner did add that the Veteran's folliculitis is not secondary to his onychomycosis; however, there is no rationale proffered for such opinion. The Board requested a medical opinion from a VA dermatology specialist. The April 2013 opinion indicated that the Veteran's claims file was reviewed. The specialist reiterated the aforementioned history. The specialist opined that there is a less than fifty percent likelihood that the Veteran's current dermatological issues onset during active service or are related to active service to include the presumed herbicide exposure. Additionally, she indicated that the Veteran's dermatological issues are not a consequence of tinea pedis or onychomycosis and are not aggravated by the service-connected onychomycosis. The rationale for the opinion was that the Veteran's folliculitis and intertrigo pruritis are not fungal in nature, as opposed to the onychomycosis and tinea pedis. She also indicated that the Veteran's eczema present at discharge was an allergic reaction to the macerated tinea pedis or fungal infection of the feet, but was acute as the foot rash is controlled and is no longer oozing or open. Additionally, the specialist indicated that the Veteran's severe eczema of the 1990's is strongly correlated (more than fifty percent likelihood) with the acute exposure to the chemicals in his workplace rather than a remote exposure to herbicides in Vietnam. She went on to indicate that chronic contact dermatitis is a common industrial exposure problem that accounts for the severe eczema flares which gets worse with time and continued exposure. The Board notes at this juncture that the Veteran had documented service in the Republic of Vietnam, from October 1966 to July 1967 according to a reply from the National Personnel Records Center dated December 2001 and receives compensation for diabetes mellitus on that basis. But there is no indication that the Veteran has ever had a diagnosis of chloracne and no indication that he is claiming such condition. However, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). The continuity of symptomatology avenue to service connection under the regulation creating presumption of service connection for chronic diseases manifesting during service and then again at any later date is available only for chronic diseases enumerated in the only regulation listing named chronic. See 38 C.F.R. §§ 3.303, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To the extent the Veteran's lay testimony can establish the presence of chronic skin disability since service, it is not convincing. As noted by the February 2005 VA examiner, the Veteran equated his foot and other skin problems as "skin conditions" that had their onset in the Republic of Viet Nam. However, the record reflects that while foot fungus was associated with service and noted in the years following service, the dermatitis was not identified until much later. It seems apparent that if the dermatitis/folliculitis was present at the time, it would have been noted along with the foot fungus. The case turns on the medical evidence of record and whether there is a nexus between the currently claimed skin disability and service or any incident of service. The Board notes that there are various VA examinations along with a specialist's opinion of record; none of the examiners linked the Veteran's current skin conditions (not already service-connected) to active service, herbicide exposure, or the Veteran's service-connected skin condition. However, an August 2005 private provider indicates that some of what the Veteran described skin problems could be consistent with prior exposure. In this regard, the Board observes its duty to assess the credibility and weight to be given to the evidence. See Wood v. Derwinski, 1 Vet. App. 190 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Board finds the opinion of the VA examiners to be more probative as they had an opportunity to review the Veteran's claims file, including the opinions of the private physician. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (an opinion that is based on review of the medical evidence is more probative than an opinion that is based on the veteran's reported history). Additionally, the VA examiners' opinions provided a thorough rationale for the opinions and are not speculative in nature like the private opinion (indicating that it was impossible for him to determine a link between the Veteran's skin condition and herbicide exposure). See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. at 23 (medical opinions which are speculative or inconclusive in nature cannot support a claim). The Veteran himself believes that his skin disability is related to active service. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, due to the passage of time, the reported delayed onset of diagnosis, and the systemic nature and the number of etiologies possible for the variously diagnosed skin disorders, the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address etiology in the present case. In sum, taking into account all of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's claimed skin disorders are related to active service, to any incident of active service, or is secondary to or aggravated by any service-connected disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for dermatitis is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs