Citation Nr: 1320223 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-50 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a skin disability (claimed as rash of the face, chest, and back). REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The record shows that the Veteran requested a hearing in his March 2010 substantive appeal to the Board. VA notified the Veteran of his scheduled hearing date. The Veteran failed to appear for this hearing and has not requested another hearing. As such, the request for a hearing is deemed withdrawn. 38 C.F.R. § 20.702 (c), (d). In September 2012, the Board remanded this case for further evidentiary development. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal except as to VA treatment record obtained and considered by the RO pursuant to the Board's September 2012 remand decision. FINDING OF FACT A skin disability is not shown at any time during the appeal period. CONCLUSION OF LAW The criteria for service connection for a skin disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5701 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA satisfied its duty to notify. VA sent to the Veteran all required notice in a January 2007 letter, prior to the rating decision on appeal. The Board notes that the letter informed the Veteran of the respective duties of VA and the Veteran, and the evidence or information necessary to establish his claim. VA further satisfied its duty to assist the Veteran. VA obtained the Veteran's service treatment records (STRs) along with all other relevant medical treatment records identified by the Veteran to include those medical records associated with a claim for Social Security Administration (SSA) benefits. These records have been associated with the claims files. VA attempted to provide the Veteran with an examination, but he failed to report for the scheduled examination without good cause, as discussed below. VA's duty to assist in the development of a claim is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA cannot assist in regard to obtaining an examination when the Veteran is unwilling to present for an examination. Therefore, the Board finds that VA's duty to assist in this regard has been met. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Board previously reviewed the record and determined that VA should obtain all updated VA treatment records along with a VA examination and a medical opinion. The Board remanded the case for this purpose. The record shows that the updated treatment records were obtained and associated with the Veteran's Virtual VA electronic claims file. As the Veteran cancelled his VA scheduled appointment for examination of the skin and failed to return a phone call from VA personnel regarding the rescheduling of this appointment, the Board believes that remand again for this purpose would be futile as the Veteran's cooperation is essential and he has not communicated with VA since cancelling his examination appointment. See Wood, supra. As such, the Board finds substantial compliance with the requirements articulated in the Board's prior remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board will address the merits of the claim. II. Service Connection for Skin Disability The Veteran submitted in November 2006 a VA claim for compensation for a skin condition that began in 1969-1970. The Veteran reported treatment from 1969 to present day. He reported "unk[nown]" for treatment facilities or doctor. In an October 2007 statement, the Veteran reported that he was unable to obtain his medical private medical records, but noted that he had been treated since 2007 through the Hines VA Medical Center. In December 2009, the Veteran reported exposure to herbicide agents in service. He noted that his navy ship USS Kitty Hawk was in the Gulf of Tonkin which was full of herbicide agents. In support of his claim, the Veteran submitted duplicate copies of STRs. 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); 38 C.F.R. § 3.102 (2012); 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. Legal Criteria Initially, the Board notes the Veteran does not assert that his claimed problems are a result of combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not for application in this matter. Also, the Board notes that record shows no medical evidence of a skin disease that may be presumptively associated with Agent Orange exposure, such as chloracne or other acneform disease consistent with chloracne; therefore, the provisions of 38 C.F.R. § 3.309(e) are not for application. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Failure to Report for VA Examination 38 C.F.R. § 3.655(a) provides that when entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, VA must take action in accordance with 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. Id. Under 38 C.F.R. § 3.655(b), when a veteran, without good cause, fails to report for a VA examinations in an original claim, the claim must be decided on the basis of the evidence of record. Here, the Veteran cancelled his appointment for a VA examination scheduled for April 2013. Subsequently, also in April 2013, the RO attempted to contact the Veteran by phone and left a voice message for him to return the call as this concerned his cancelled VA examination. The Veteran did not return the phone call and, to date, has not communicated with VA any desire to reschedule his examination date. As indicated above, the Board believes that remand again for this purpose would be futile as the Veteran's cooperation is essential and he has not communicated with VA since cancelling his examination appointment. See Wood, supra. Also, the Board observes that the Veteran has not responded to the most recent Supplemental Statement of the Case (SSOC), noting that his claim was decided based on the evidence of record as he did not report for VA examination. The record shows that the SSOC was sent to the Veteran's last known address of record and that it was not returned as undeliverable. To date, the Veteran has not cited good cause for failing to report to the scheduled examination or a desire to reschedule his skin examination. Indeed, there has been no correspondence received from the Veteran since the Board's September 2012 remand. Therefore, as this matter arises from an original claim for benefits, the claim will be decided based on the evidence of record. See 38 C.F.R. § 3.655(b). Analysis Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for a skin disability. A chronic skin disability is not shown in service; a skin disease subject to presumptive service connection under the presumptive provisions based on herbicide disorder is not shown; and none of the skin disorders documented during the appeal period are etiologically related to service. STRs include a "Food Service Physical Examination" dated in September 1968, which shows that the Veteran was evaluated for open lesions on hands, face or neck, including severe acne, or history of skin diseases. None were found and he was deemed qualified for food service. In December 1970, the Veteran presented for an erythematous rash of 6-8 months duration over "malar eminence." Exam was normal except for rash. The impression was "possible L.E. [lupus erythematosus." Evaluation was deferred until return to Albany, Georgia. Treatment notes dated in February 1971 reflect rash on face, assessed as seborrheic dermatitis, and treated with Sebtone, Sebalex. He was advised to return if not improved. There are no subsequent documented complaints or findings in the STRs. Report of service separation examination dated in June 1972 reflects normal examination of the skin. No defects or diagnoses were listed on this exam. Private treatment records dated in August, September, and November 2006 reflect that inspection of the skin showed normal color and tugor. VA treatment records show that the Veteran has serious medical problems to include heart disease and diabetes mellitus. It was noted in March 2007 that the Veteran had lost his private insurance and no longer had private medical care. These records further show that "lipoma of other skin and subcutaneous tissue" was cited on a problem list. Also, a December 2010 note reflects under the heading "skin problem" that there were no wounds, pressure ulcers or other skin problems. A subsequent note, also dated in December 2010, shows findings for bilateral foot rash (petechial) since his edema worsened. A skin assessment and reassessment dated in January 2013 reflects normal skin color an tugor, warm temperature, and dry skin; but no wounds, pressure ulcers, or other skin problems. This evaluation appears to have been conducted as part of the (diabetic) ulcer prevention protocol. There are no dermatological treatment records or consultation requests. In summary, the evidence of record shows a face rash in service diagnosed as dermatitis and no findings for a face rash during the appeal period of this claim. The evidence of record shows a history of lipoma and findings for bilateral foot rash, but there is no indication that these conditions are related to service, to include the diagnosis of dermatitis of the face in service or alleged herbicide exposure in service. See 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (VA regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service; stated differently, a regulatory presumption is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure). The Board has considered the Veteran's contentions and statements. The Board finds that the Veteran is competent to report his symptoms and treatment. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet.App. 398, 405 (1995). Furthermore, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). However, the evidence does not demonstrate a current diagnosis of a condition explicitly recognized as chronic under 38 C.F.R. § 3.309(a) so as to allow for consideration of the theory of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Furthermore, to the extent that the Veteran suggests in-service onset of any skin conditions shown during the appeal period or continuity of his rash symptoms since service, the Board finds that he is not credible because the conditions shown during the appeal period are not shown in the STRs or anytime soon after service, and because any assertion of continuity of symptoms is simply incongruous with the normal clinical evaluation on separation examination in 1972 and the normal skin evaluations post service. Therefore, the Veteran's statements have diminished probative value. Caluza, supra. Additionally, although the Veteran is competent to describe symptoms such as a skin rash, he is not competent to diagnosis a specific skin disease. Jandreau v. Nicholson, 492 F.3d. 1372 (2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As noted, the Board did attempt to obtain a VA examination to explore the nature and etiology of his claimed skin condition, but the Veteran failed to cooperate by attending such an examination. Ultimately, the Board finds that there is no competent evidence of a currently diagnosed skin disorder that has been shown by credible evidence to have had its onset in service and to have continued thereafter, or to otherwise be related to service. Accordingly, because the weight of the evidence is against the claim, the claim is denied. There is no doubt to resolve as the evidence is not roughly in equipoise. Gilbert, supra. ORDER Service connection for a skin disability is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs