Citation Nr: 1322530 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 08-18 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a skin disorder of the hands and feet. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from July 2002 to July 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2010 and March 2013, the Board remanded the issue remaining on appeal. FINDINGS OF FACT A skin disorder of the hands and feet is not attributable to service. CONCLUSION OF LAW A skin disorder of the hands and feet was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1110, 1154 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304. 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). VCAA letters were sent in August 2007 and July 2010. The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claim and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence. The letters also notified the Veteran that a "downstream" disability rating and an effective date for the award of benefits would be assigned if service connection was granted, in compliance with Dingess. Regarding the duty to assist, VA also satisfied this obligation in terms of obtaining all potentially relevant evidence concerning the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records (STRs), VA medical treatment records, and identified private medical records were obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication that any additional evidence, relevant to these claims, is available and not part of the claims file. The case was remanded for the Veteran to be provided a VA compensation examination, including for a medical nexus opinion concerning the etiology of the claimed skin disorder and any potential relationship with military service. However, the Veteran did not report for this examination, as discussed below. The records taken as a whole, to the extent possible given that the Veteran did not report for his examination, satisfy 38 C.F.R. § 3.326. The Board is also satisfied there was compliance with this remand directives, on VA's part. See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with a remand directive and that the Board, itself, commits error in failing to ensure this compliance). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", though not "exact", compliance with a remand directive). In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). When, for example, 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. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. 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" such as actual treatment records). The Veteran is competent to report the Veteran can observe and feel through the senses. See Layno. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Once evidence is determined to be competent, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value. See Layno (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")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims ("the Court") similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he/she has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Combat Status The Veteran served in combat during the Persian Gulf War. His DD Form 214 confirms that he was awarded the Combat Action ribbon (CAR). This is prima facie evidence of his combat service, meaning conclusive evidence he participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and did not instead only serve in a general "combat area" or "combat zone" but did not himself engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). This determination is made on a case-by-case basis. See also Moran v. Peake,525 F.3d 1157 (Fed. Cir. 2008). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Federal Circuit has held that, in the case of a combat veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish entitlement to service connection, however, there still must be evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Merits of the Claim A review of the STRs shows that there were no complaints, findings, treatment, or diagnosis of a skin disorder. In fact, the Veteran specifically denied having a skin disorder. See May 2005 Post-Deployment Health Assessment and May 2006 exit physical. Post-service, VA medical records dated in May 2008 document the Veteran's complaints of dry skin which he stated that he had experienced since his service in Iraq. The diagnosis was hand dermatitis and seborrheic dermatitis. The Veteran also submitted additional private treatment records of blood panel results and notations indicating the presence of scleroderma. In April 2009, the Veteran complained of having dry skin to a VA provider. It was noted that private records showed positive findings for scleroderma. However, this examination indicated that the positive findings for scleroderma were suspected to be false. It was noted that in the absence of any symptoms or signs of scleroderma or other connective tissue disease, the positive lab findings were not likely to be clinically significant. In addition, the absence of Raynaud's symptoms was particularly reassuring as Raynaud's almost always is a part of scleroderma. The examiner stated that it was felt that the Veteran had a prior false positive testing. As noted above, the Veteran served in combat and had post-service diagnoses. For that reason, the Board determined that he should be afforded a VA examination. However, the Veteran did not report for that examination. Correspondence of record showed that the Veteran was aware of the examination, but was contemplating withdrawing his claim. Ultimately, there is no withdrawal of the claim of record and neither the Veteran nor his representative has requested a new examination. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. When a veteran fails without good cause to report for a VA examination requested by VA in conjunction with a claim, VA is not obliged to attempt to provide another. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a). The Veteran did not make any attempt to show good cause or explain why he missed his VA examination. While VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with the VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). VA's duty must be understood as a duty to assist the Veteran in developing his claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). The Board has no legal recourse, but to decide the Veteran's claim on basis of the existing record. 38 C.F.R. § 3.655. Turning to the existing record, according to the Reeves case, the Board is required to apply the section 1154(b) presumption to whether the claimed skin disorder occurred as well as the separate issue of whether the Veteran suffered the claimed ensuing disability while on active duty. For example, once establishing that the claimed disorder occurred, a Veteran would then only have had to show that the disability he incurred in service was a chronic condition that persisted in the years following active duty. This basically establishes that the disorder in service resulted in permanent disability. See generally Reeves. However, in this case, the Veteran was also competent during service to state whether he had a skin disorder. He repeatedly stated that he did not. The Reeves case is not analogous in that there were not repeated inservice denials of the disability at issue, as in this case. The Veteran's current statements that he had a skin disorder during service are in direct conflict with his statements made and recorded in the STRs. The Board finds the prior, inservice statements to be more credible as they were contemporaneous to the inservice combat service and otherwise to service. Moreover, the Veteran did report other medical problems; thus, it is reasonable that he would have reported a skin disorder had it occurred. While the Veteran is certainly competent to report a skin disorder, during service, he denied having one. In the Board's most recent remand, it was noted that the Veteran had post-service diagnoses of a skin disorder which he stated had been in existence since service, dermatitis as well as seborrheic dermatitis (possible scleroderma had not been noted to be present since service by the Veteran). The post-service diagnoses were made in 2008, after the Veteran was separated from service. Also, the Board noted that since the Veteran denied having a skin disorder during service as shown in the STRs, a VA examiner must provide an opinion to resolve this matter. To that end, the Board observes that although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the Veteran is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Since the Veteran denied inservice skin problems, has since changed his account of that report, and has various diagnoses, the current claim involves medically complex questions which are beyond the scope of the Veteran's lay opinion. Thus, a competent opinion by a medical professional is necessary. However, the Veteran failed to report for his scheduled VA examination and the record reflects that he was aware that he had missed that examination, but provided no reason other than a possibility that he would withdraw the claim. The Veteran's failure to cooperate in attending the examination has left the record devoid of any competent medical opinion as to whether he has a skin disorder that was incurred in or related to his active military service. 38 C.F.R. § 3.655(b). This case, as noted, requires the medical opinion due to the fact that the Veteran has provided conflicting statements regarding whether he had a skin disorder during service. Moreover, his inservice statements are more probative since they were made contemporaneous to service and thus better reflect the status of his medical state at that point. As such, the Board must afford more probative value to the inservice reports denying a skin disorder. Accordingly, the Veteran's current statements that a skin disorder had its inception during service are not credible, given the inservice reports. Thus, there is no credible evidence establishing a nexus between post-service diagnoses of a skin disorder, made after service separation, to service itself. Therefore, the criteria for service connection are not met in this case and service connection must be denied. ORDER Entitlement to service connection for a skin disorder of the hands and feet is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs