Citation Nr: 1320451 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 97-13 532A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for alopecia (claimed as hair loss). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1974 to February 1977, September 1990 to May 1991, and with the U.S. Army Reserve Training from June 12, 1993 to June 25, 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed the above issue. The Board notes that in November 2011, the Board determined that service department records which existed prior to the December 1995 rating decision, which initially denied the Veteran's hair loss claim, were associated with the claims file in December 2004; therefore, the Veteran's hair loss claim was to be considered on a de novo basis and not as a new and material evidence claim. See 38 C.F.R. § 3.156(c) (2012). That initial claim for service connection stems from a January 1994 claim. This case was remanded for further development in November 2011. That development having been completed, the case has been returned to the Board for further appellate review at this time. The previous November 2011 remand also included claims of service connection for a psychiatric disorder, sinusitis, right leg peroneal nerve compression, gastritis, hepatitis C, and headaches. During the pendency of that remand, service connection for all of those conditions was awarded in a December 2012 rating decision. As of this time, no notice of disagreement has been received with regards those awards of service connection; however, the Board notes that the appeal period for that decision remains open at this time. As the benefits sought with regards to those previously-appealed claims-namely, the award of service connection-have been granted, the Board considers those claims to be final at this time, and they will no longer be addressed at this time. FINDINGS OF FACT 1. The Veteran is competent to state that he has hair loss or falling hair episodes, but he is not competent to render a diagnosis thereof. 2. The March 1994 provisional diagnosis of "falling hair episodes" is not a final or conclusive diagnosis and does not reflect a condition that the Veteran was diagnosed with during the appeal period such that a claim of service connection can be predicated. 3. The Board does not find the Veteran's lay evidence that he has hair loss or "falling hair episodes" to be particularly credible or probative in light of the lack of treatment for that condition throughout the appeal period and the lack of findings by October 2001, June 2005 and December 2011 examiners. 4. There is no evidence throughout the appeal period, particularly since January 1994, that the Veteran has a current diagnosis of alopecia, hair loss, or "falling hair episodes." CONCLUSION OF LAW The criteria establishing service connection for alopecia (claimed as hair loss) have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (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. 2011); 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, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this 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. Id. at 486. 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 September 2007 that 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. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. 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 Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. 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, his statements in support of the claim are of record. 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 herein decided. The Board recognizes that this claim was remanded in November 2011 in order for a VA dermatological examination to be obtained; such was performed in December 2011, and will be discussed in further detail below. Therefore, the Board finds that its remand order has been substantially complied with, and it may proceed to adjudicate upon the merits of this case. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical 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); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection 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) (2012). On appeal, the Veteran avers that he has hair loss that is the result of military service, and specifically his Persian Gulf War service. The Board notes that his service personnel records demonstrate Persian Gulf War service during his 1991 period of military service, and therefore concedes that type of service. The Board has reviewed the Veteran's service treatment records and that there is no evidence of any hair loss or alopecia during military service. The Veteran's April 1991 separation examination does not demonstrate any hair loss, nor does the Veteran complain of such at that time. The Veteran filed his claim for alopecia/hair loss in January 1994. A review of the claims file, including all VA and private treatment records since January 1994, does not demonstrate any treatment for or diagnosis of alopecia/hair loss. The Veteran sole complaint of hair loss is in March 1994, when the Veteran sought treatment for "hair falling episodes since returning from" the Persian Gulf. He was provisionally diagnosed with "hair falling episodes." It does not appear that any formal examination was completed at that time and there is no final or conclusive diagnosis with respect to the Veteran's complaints at that time. The Veteran underwent a VA general medical examination in October 2001, at which time no hair loss or alopecia was diagnosed; the Veteran did not report any hair loss problems at that time. The Veteran underwent a Gulf War examination for undiagnosed illnesses in June 2005. No hair loss or alopecia was noted during that examination. Again, the Veteran did not report any hair loss during that examination. Following the most recent remand in November 2011, the Veteran was sent a letter on November 23, 2011 noting that he was being scheduled for examinations. The RO/AMC initiated examinations for hair loss and several other claimed conditions on that day, including sending the set of the Board's remand instructions which the examination request at that time. The Veteran underwent a VA examination for his claimed hair loss in December 2011. During that examination, the Veteran reported hair loss in the temporal and occipital regions since 1993. He had not received any treatment for that condition. On examination, the examiner noted that there was no hair loss seen during the examination. The examiner concluded that there was no hair loss noted on the examination and that he could not render an opinion as instructed by the Board on the basis of this fact. The Veteran's representative noted in its informal hearing presentation, dated May 2013, that the claims file contained a VA examiner's opinion from a November 23, 2011 examination report in which the examiner "opined that the claimed hair loss was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness." The Board has extensively reviewed the claims file, including the Virtual VA efolder, and finds no November 23, 2011 VA examination or report thereof in the claims file. Based on the above, the Board finds that service connection for alopecia/hair loss is not warranted. First, the Board notes that while there is a provisional diagnosis of "falling hair episodes" in March 1994, there does not appear to have been any actual examination of the Veteran at that time. No final or conclusive diagnosis was made at that time. The Board does not find that a provisional diagnosis of "falling hair episodes" is a diagnosis for service connection purposes. Instead, the Board notes that there has not been any diagnosis of, treatment for, or complaint of alopecia, hair loss, or "falling hair episodes" since March 1994. While the Veteran is certainly competent to state that he has hair loss or that he has experienced falling hair episodes, the Veteran is not competent to render a diagnosis of hair loss or alopecia. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Moreover, given the lack of any treatment or complaints for that condition other than in March 1994, the Board finds the Veteran's statements to be not credible or probative with respect to his hair loss. The Board additionally notes the October 2001, June 2005 and December 2011 examination reports and finds those examinations of the Veteran to be extensively more probative with respect to whether he has a current diagnosis of hair loss or alopecia. None of those examiners noted any hair loss on examination of the Veteran, and curiously, he did not even report any hair loss during the October 2001 or June 2005 examinations. In light of the above, the Board finds that the Veteran does not have a current diagnosis of alopecia or hair loss. The Board specifically notes that the Veteran's "failing hair episodes" were merely a complaint asserted by the Veteran in March 1994 and that such was a provisional diagnosis. It does not appear that the Veteran was even examined at that time and no actual diagnosis of any condition was made at that time. The balance of the private and VA treatment records in the claims file do not demonstrate any diagnosis of, treatment for, or complaint of alopecia or hair loss. The Veteran is competent to state that he has hair loss symptomatology, but the Board finds those statements to be not credible or probative when weighed against the other evidence or record, including the three examination reports by qualified medical professionals which did not demonstrate any hair loss or alopecia symptomatology during those examinations. Finally, the Board notes that the Veteran's representative has asserted that a November 23, 2011 examiner opined that the Veteran's hair loss was the result of military service. The Board notes that there is no November 23, 2011 examination report in the claims file, and more importantly, notes that the Veteran was scheduled for his examinations-one such examination being for hair loss-on that date. Instead, the Board finds that it is more likely that the Veteran's representative is referring to the VA examination request which was sent on that day, which included the Board's previous remand instructions from the November 2011 Board remand. Such a request for a medical opinion ordered by the Board has absolutely no probative value. The Board specifically notes that the Veteran's claims file was processed through the Appeals Management Center on November 23, 2011 and that the Veteran was sent a letter that day stating that examinations were being requested. Therefore the Board finds that it is extremely unlikely that a dermatological examination was conducted on the same day as such processing took place, considering that an examination would not be ordered for an appellate issue prior to the processing of that remand back through the Appeals Management Center. Thus, the Board specifically finds that it does not need to remand this case in order to search for a November 23, 2011 examination report, because the Board has determined that such does not exist. The report referred to in the informal hearing presentation does not exist in the claims file, in the Virtual VA efolder, and the Board does not find that evidence of record exists at this time which leads the Board to believe that there is outstanding evidence in light of the issuance of the letter to the Veteran and the scheduling of the examination on the day the Representative claims the hair loss examination was conducted. The Board has determined that what the Veteran's representative is referring to is the request for an opinion from the examiner, and not an actual opinion; the actual opinion from the examiner was obtained in the December 2011 examination, which noted that there was no hair loss seen during that examination. Accordingly, the Board finds that there is no evidence to support a finding of a current diagnosis at any time during the appeal period, and particularly since January 1994, for alopecia or hair loss. Therefore, the Board must deny the Veteran's claim of service connection for alopecia (claimed as hair loss) at this time. See 38 C.F.R. §§ 3.102, 3.303; Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of the claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim."). In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for alopecia (claimed as hair loss) is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs