Citation Nr: 1318282 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 07-24 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a skin disorder. 2. Entitlement to service connection for a respiratory disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) in the United States Marine Corps Reserve from June 1985 to September 1985. The Veteran then served on active duty in the United States Marine Corps from July 1986 to September 1986. An Abstract of Service (Abstract) indicates that an additional unconfirmed period of ACDUTRA service occurred between July 1988 and an unknown end date, but not later than June 1989, at which time the Abstract indicates that a period of Drill Pay Status concluded. The Abstract further indicates that the Veteran had a period of ACDUTRA service from June 17, 1989 to June 29, 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. This matter was previously before the Board in January 2011, when it remanded the case for additional development of the evidence of record. As an initial matter, the Board notes that when its remand orders are not complied with, it errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the instant case, the Board remanded the claims in order to obtain pertinent personnel records, confirm the Veteran's dates of ACDUTRA service in 1988, and provide the Veteran with a VA examination of his respiratory condition. Appropriate attempts were made to obtain personnel records and confirm dates of ACDUTRA service, and the Veteran twice failed to report to scheduled VA examinations. The Board finds that there has been effective compliance with the Board's remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance.) FINDINGS OF FACT 1. The competent evidence of record does not support a finding that a relationship exists between the Veteran's currently-diagnosed skin disorder and his military service. 2. The competent evidence of record does not support a finding that a relationship exists between the Veteran's currently-diagnosed respiratory disorder and his military service. CONCLUSIONS OF LAW 1. The Veteran's skin disorder was not incurred or aggravated by the Veteran's active duty military service. See 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.102, 3.303 (2012). 2. The Veteran's respiratory disorder was not incurred or aggravated by the Veteran's active duty military service. See 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). 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 Veteran. 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, the Board 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 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). Proper VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The VCAA 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). 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. 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. Id. at 486. In July 2006, VA provided the Veteran with the above notice. The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. The Board also concludes VA's duty to assist has been satisfied. As noted above, the evidence suggests that the Veteran has at least one other period of ACDUTRA service that has not been verified. Specifically, the Veteran had a period of ACDUTRA service that began in July 1988 and ended on an unknown date. The Board's January 2011 remand instructed the RO to attempt to confirm the Veteran's dates of ACDUTRA service and obtain associated personnel records. In January 2011, the VA Appeals Management Center (AMC) sent a request for the Veteran's 1988 ACDUTRA records to the National Personnel Records Center (NPRC). Later in January 2011, the NPRC provided service personnel records that may address the Veteran's 1988 service. Unfortunately these records were illegible, but the NPRC indicated that they were the best-quality documents available. The AMC submitted an additional request for information to the Defense Finance and Accounting System (DFAS) in September 2011; this request identified the wrong dates of service for the Veteran, indicating that VA needed confirmation of the Veteran's service in 1998, rather than 1988. In February 2012, the AMC corrected the desired dates of service with the DFAS. In March 2012, the DFAS provided information relating only to the Veteran's service in 1985 and 1986. In April 2012, the AMC informed the Veteran of the steps that it had taken to obtain records relating to his 1988 ACDUTRA service, and it requested that the Veteran provide any information in his possession relating to this service. To date, the Veteran has not responded to this request. In May 2012, the AMC issued a Formal Finding of Unavailability detailing the efforts that it had undertaken to confirm the Veteran's dates of ACDUTRA service. With respect to the Veteran's missing personnel records, the Board observes that when records are unavailable, "VA has no duty to seek to obtain that which does not exist." Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993) (noting that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile). The Board finds that with the above efforts, the RO has attempted to develop the record as much as possible, and any further efforts to obtain the Veteran's service treatment records and personnel records would be futile. As such, the Board finds that VA has fulfilled its duty to assist in obtaining such records. The Board has kept this unfortunate situation in mind while addressing the Veteran's claims, and it is mindful that it has a heightened obligation both to explain its findings and conclusions and to carefully consider the benefit of the doubt doctrine. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). With regard to the Veteran's skin condition, the Veteran has not been afforded a VA examination because such an examination is unnecessary. The Veteran has contended broadly that his skin condition is related to active duty service. The Board observes no complaint or treatment for a skin condition during the Veteran's periods of service. Moreover, the record does not suggest a link between the Veteran's skin condition and any in-service event, disease, or injury. Accordingly, the Board finds that a VA examination is not required. See 38 C.F.R. § 3.159(c)(4) (2012); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the Veteran's respiratory condition, the Board's January 2011 Remand instructed the AMC to provide the Veteran with an examination of his respiratory condition. Pursuant to the Board's directive, the AMC scheduled the Veteran for a respiratory examination in January 2011. The Veteran failed to appear for this examination and provided no explanation for his failure to appear. The AMC again scheduled the Veteran for an examination in March 2011, and the Veteran again failed to appear for this examination without explanation. The Board observes that when entitlement to a benefit cannot be established or confirmed without a current VA examination or re-examination and a veteran, without good cause, fails to report for such examination, the claim shall be rated based on the evidence of record. See 38 C.F.R. § 3.655(a), (b) (2012). Accordingly, with no explanation at all regarding the Veteran's failure to appear for these examinations, and with the Veteran's representative, in February 2013 acknowledging the Veteran's failure to appear, the Board will decide the Veteran's claim based on the existing evidence of record. In April 2007, the Veteran participated in a hearing before a Decision Review Officer, and a transcript of that hearing has been associated with the record. In June 2007, the Veteran requested a videoconference hearing before a Veterans Law Judge. The Veteran was scheduled for a videoconference hearing in April 2010. In March 2010, the Veteran withdrew his request for such hearing. The Veteran's hearing request has been deemed withdrawn. See 38 C.F.R. § 20.702 (2012). The Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file, and it is not contended otherwise. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service Connection Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303(a), 3.304 (2012). The term "active military, naval, or air service" includes active duty, any period of ACDUTRA during which the veteran was disabled or died from an injury or disease incurred or aggravated in the line of duty, and any period of inactive duty for training (INACDUTRA) during which the veteran was disabled or died from an injury incurred or aggravated in the line of duty. See 38 U.S.C.A. § 101(24) (West 2002). For certain chronic diseases set forth in 38 C.F.R. § 3.309, a continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. See 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that a "continuity of symptomatology" as specified in 38 C.F.R. § 3.303(b) affords an alternative route to service connection only for specific chronic diseases). The Veteran's conditions of bronchospasm and eczema are not among the listed conditions in this regulation, and the Veteran thus cannot demonstrate entitlement to service connection based upon a continuity of symptomatology alone. Instead, in order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Regarding the first Hickson element, medical evidence of a current disability, the record suggests that the Veteran has been diagnosed with bronchospasm and an eczematous rash. The first Hickson element is therefore met. Regarding the second Hickson element, in-service disease or injury, with regard to the Veteran's claimed respiratory condition, in an October 1988 Report of Medical Examination, an examiner noted that the Veteran suffered from mild asthma. Though, as noted above, the Veteran's period of ACDUTRA service from 1988 has not been confirmed, for the purpose of this opinion alone, the Board will afford the Veteran the benefit of the doubt and find that the second Hickson element, in-service disease or injury, is met with respect to the Veteran's claimed respiratory condition. With regard to the Veteran's claim for service connection for a skin condition, the Board observes no treatment for a skin condition during the Veteran's active duty service, and none of the Veteran's Reports of Medical Examination document a skin condition. Though the Veteran noted in October 1988 that he had a history of "skin diseases," the Board finds that the evidence does not support a finding that the Veteran suffered from a skin condition in service. While the Veteran is competent to attest to experiencing symptoms such as itching skin, the Veteran has made no specific assertions that he experienced a skin condition in service. Indeed, in his April 2007 hearing, he denied that he was treated for any skin conditions in service. Accordingly, the Board finds that the second Hickson element, in-service injury or disease, is not met, and the Veteran's claim for direct service connection fails on this basis alone. Regarding the third Hickson element, competent evidence of nexus, the Board observes no medical evidence linking the Veteran's current skin disorder and respiratory disorder to the conditions that the Veteran experienced during service. As noted above, VA has twice scheduled the Veteran for examinations, and the Veteran failed to appear for both of those examinations. The record otherwise contains no private medical records establishing a nexus between the Veteran's current conditions and his military service. To the extent that the Veteran himself believes that his conditions are related to his military service, the Board acknowledges that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge. See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Indeed, the Board's January 2011 Remand attempted to afford the Veteran with a VA examination of his respiratory condition based on the competency of the Veteran's observations. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, namely, the etiology of a skin condition and respiratory condition, the issue of causation of such conditions is a medical determination outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Furthermore, the Board observes no evidence of record suggesting that the Veteran has specific expertise to discuss the origins of his skin and respiratory conditions. Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's conditions are related to his military service, the Board finds that these lay opinions alone are an insufficient basis upon which to grant service connection. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the claims. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The preponderance of the competent and probative evidence of record indicates that the Veteran's conditions are not related to his military service. The benefits sought on appeal are accordingly denied. (CONTINUED ON NEXT PAGE) ORDER Service connection for a skin disorder is denied. Service connection for a respiratory disorder is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs