Citation Nr: 1323466 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 08-29 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for dermatitis. 2. Entitlement to service connection for seborrheic keratosis and basal cell carcinoma. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran, his wife, and daughter ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from October 1957 to March 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. In June 2011, the Veteran presented testimony relevant to the appeal at a Board hearing before the undersigned Acting Veterans Law Judge, which was held at the RO (i.e., Travel Board hearing). A transcript of the hearing is associated with the record. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. At the June 2011 Board hearing, the undersigned Acting VLJ identified the issue of service connection for dermatitis, and the Veteran provided testimony regarding in-service gun residue resulting in the onset of skin rash during service and the continued symptoms of skin rash since service. See June 2011 Board hearing transcript, page 13; see also Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (Court was convinced that appellant had demonstrated actual knowledge of the information and evidence necessary to establish the claim). During the course of the hearing, the Acting VLJ asked the Veteran several questions regarding past medical treatment received for the skin rash in order to determine whether all relevant treatment records had been obtained. Subsequent to the Board hearing, additional treatment records were received and considered in the evaluation of the Veteran's appeal. In consideration of the foregoing, the Board finds that the duties under 38 C.F.R. § 3.103(c)(2) have been satisfied. In November 2011, the Board remanded the appeal for further evidentiary development. Although additional development is needed regarding the Veteran's service connection claim for seborrheic keratosis and basal cell carcinoma for reasons addressed below, the Veteran's service connection claim for dermatitis is ready for disposition. The issue of service connection for seborrheic keratosis and basal cell carcinoma is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran was exposed to gun residue during active service. 2. There was no complaint, finding, or treatment for skin rash during service. 3. The Veteran's skin rash manifested many years after service separation. 4. The Veteran's currently diagnosed nummular eczema/dermatitis, which is manifested by skin rash, did not have its onset during active service and is not otherwise causally or etiologically related to active service. CONCLUSION OF LAW The Veteran's dermatitis was not incurred during active military service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims 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, 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA 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. 38 C.F.R. § 3.159(b)(1). This 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). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In the October 2007 notice letter sent prior to the initial denial of the claim, the RO apprised the Veteran of the information and evidence necessary to substantiate the claim, which information and evidence that he was to provide, and which information and evidence that VA would attempt to obtain on his behalf. In this regard, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits, and described the types of information and evidence that the Veteran needed to submit to substantiate the claim. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim. The RO further explained how VA determines the disability rating and effective date once service connection is established. For these reasons, the Board finds that the October 2007 notice letter satisfied VCAA notice requirements with respect to the claim adjudicated herein and no further notice is needed. Regarding VA's duty to assist in claims development, the Board notes that the record contains all available evidence pertinent to the appeal. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to make a decision on the appeal. The Veteran's complete service treatment records are included in the claims file. Pertinent post-service treatment records adequately identified as relevant to the appeal have been obtained or otherwise submitted and are associated with the record. Additional pertinent treatment records found in the Veteran's Virtual VA file were considered by the RO via the AMC in the first instance. Although the Veteran, in a May 2012 written statement, reported that he received a social security check, he has not indicated that he is in receipt of social security disability benefits due to a skin disability at any time during the course of the appeal. The Board also notes that the February 2013 VA medical examiner checked "No" when asked if the Veteran's skin condition impacted his ability to work; therefore, the Veteran did not indicate at the VA skin examination that his skin disability has negatively impacted his ability to work, and the VA medical examiner did not so find. In consideration of the foregoing, the Board finds that records from the Social Security Administration (SSA) are not relevant to the Veteran's claim; therefore, a remand to attempt to obtain SSA records is not necessary. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). In November 2011, the Board remanded the claim for the following evidentiary development: 1) to obtain VA treatment records pertaining to the hospitalization of the Veteran in or about May 1972 at the VA hospital in Dallas, Texas, VA treatment records from the early 1970s from the VA medical facility located in Fayetteville, Arkansas, and VA treatment records not already of record dated since 2009; 2) to obtain written authorization from the Veteran and, thereafter, attempt to obtain all examination and treatment records compiled during the course of the Veteran's post-service employment at Southern Airways from any successor entity of that organization for inclusion in the claims folder; 3) to provide the Veteran with a medical examination and obtain a medical opinion regarding the likelihood that the skin disability originated during, or were otherwise attributable to, military service or any event thereof, to include in-service exposure to toxic substances; and 4) and, thereafter, to readjudicate the claim. Pursuant to the November 2011 Board's remand order, the Veteran's VA treatment records dated from May 1972 to December 1978 from the Fayetteville, Arkansas VA Medical Center (VAMC) were obtained, and updated VA treatment records were added to the Veteran's Virtual VA file. A request for VA treatment records for the Veteran's hospitalization in or about May 1972 through the North Texas Health Care System yielded a negative response. Also, the AMC sent a letter to the Veteran in November 2011 asking him to complete and return the enclosed VA Form 21-4142, Authorization and Consent to Release Information, so that VA could obtain examination and treatment records from his former employer, Southern Airways. The Veteran neither responded to the letter nor submitted the requested VA Form 21-4142. In April 2012, the Veteran's representative, in response a call earlier that month placed by a VA employee asking for the Veteran's former employer's address and treatment records, explained that Southern Airways was no longer in business. The representative further stated that the Veteran had nothing additional to send in support of the appeal. In February 2013, the Veteran was afforded with a medical examination in connection with the appeal. The February 2013 VA medical examiner interviewed the Veteran and considered the history of skin symptomatology and its onset as reported at the examination and documented in the record. The February 2013 VA medical examiner also considered the Veteran's report of exposure to gun residue in-service, and post-service treatment for skin symptomatology as documented in the record and, thereafter, provided a medical opinion regarding the likelihood that the Veteran's currently diagnosed nummular eczema was causally related to active service. The VA medical examiner had sufficient facts and data on which to base a medical opinion, and the medical opinion was supported by adequate rationale. For these reasons, the Board finds that the February 2013 VA medical examination provided and medical opinion obtained are adequate; therefore, no further medical examination or medical opinion is needed. In consideration of the foregoing development, and because the claim was readjudicated in April 2013, the Board finds that there has been substantial compliance with the Board's November 2011 remand directive. D'Aries v. Peake, 22 Vet. App. 97 (2008). Neither the Veteran nor the representative has made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in the appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim adjudicated herein. In view of the foregoing, the Board will proceed with appellate review. Service Connection Legal Criteria The Board has thoroughly reviewed all the evidence in the record. The analysis below focuses on the most relevant evidence and on what this evidence shows, or fails to show, on the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran's currently diagnosed nummular eczema is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service Connection Analysis The Veteran seeks service connection for dermatitis. At the June 2011 Board hearing, the Veteran testified that he first noticed a skin rash during service after firing a gun from the ship during the summer. He stated that thick gun residue fell on him and the rash started two to three hours later. He reported that the rash never went away and has continued since that time. See June 2011 Board hearing transcript, page 13. The Veteran also once asserted that the skin rashes may be due to exposure to aviation fuel during service. See April 2008 Report of Contact. Initially, the Board notes that the Veteran's DD Form 214 identifies the Veteran's military occupational specialty (MOS) as stock clerk. The DD Form 214 specifically notes that the Veteran's MOS was clerical in nature and does not indicate that the Veteran received any training other than that required to perform those duties. However, the Veteran has provided a competent account of having assisted in the firing of five-inch guns by loading gun powder during service, and there is no clear indication that the account is not credible. Therefore, the Board finds that the Veteran was exposed to gun residue during service. After review of the lay and medical evidence of record, however, the weight of the evidence is against finding that the Veteran's currently diagnosed skin disorder of nummular eczema/dermatitis, which is manifested by a skin rash, had its onset during service or is otherwise causally or etiologically related to service, to include in-service exposure to gun residue. The Veteran's service treatment records are complete and show that he sought medical treatment for a number of ailments throughout service, to include during the summer months. However, there is no complaint, finding, or treatment for a skin rash during service, and the Veteran's skin was clinically evaluated as normal at the March 1960 service separation examination. At the Board hearing, the Veteran testified that he self-treated the skin rash and did not seek medical treatment for the skin rash during service; however, it is unlikely that the Veteran would have sought treatment for several other medical problems during service and not have sought treatment for, or even mentioned, a skin rash during service, if such a rash was then present as the Veteran has now alleged. Also, given the fact that the Veteran sought medical treatment a number of times throughout service for various ailments, it is unlikely that a skin rash would not have been detected at some point during service by a service medical examiner. Buczynski v. Shinseki, 24 Vet. App. 221, 226-27 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). Because the service medical evidence was generated during service and is likely to reflect accurately the Veteran's skin condition, or lack thereof, it is of great probative value and outweighs the Veteran's recent assertion that his skin rash had its onset during service, which was first made in connection with the current claim for VA benefits and is more likely to have been influenced by the desire for pecuniary gain. The Veteran's post-service treatment records provide further evidence against the claim. At the June 2011 Board hearing, the Veteran indicated that he received medical treatment through VA in 1972 or 1973 for his skin rash while being treated for a hip disability. However, the assertion is not supported by the evidence. VA treatment records dated from 1972 to 1973 show that the Veteran was hospitalized and treated for a self-inflicted gunshot wound to the lower abdomen in May 1972, not a hip disability, and include no complaint, finding, or treatment for a skin rash. In fact, a November 1973 VA treatment record reveals that the Veteran's skin was clinically evaluated as normal and demonstrated no rash, lesions, or pigmentation at that time. Although the Veteran is shown to have received treatment for various ailments through VA from May 1972 to December 1978, there is no complaint, finding, or treatment for a skin condition during the period. This evidence not only weighs against the credibility of the Veteran's assertion that he was treated for a skin rash through VA in the early 1970s, but also weighs against the assertion that the skin rash has been present since service. Also, the earliest documentation of skin rash is shown in 2000, approximately four decades after service separation. In September 2000, the Veteran reported that he had had a skin rash for "some time" but made no mention of active service. Similarly, when the Veteran presented for emergency treatment of the skin rash in December 2001, he reported that the rash had been present intermittently for 18 months and made no mention of active service. Thus, when seeking medical treatment for a skin rash in the early 2000s, the Veteran did not report that the skin rash had been present since active service, to include any event or incident therein. The Veteran's vague assertion in September 2000 that the skin rash had been present for "some time" is insufficient to link the onset of the symptomatology to service. See also April 2008 VA treatment record (showing that the Veteran told a treating medical provider that he had had skin rash and related problems for at least 35 years). It is likely that the Veteran would have mentioned having had a skin rash since having had gun residue fall on him during service when seeking medical treatment, particularly in light of the hearing testimony that the skin rash manifested within hours of the exposure. The fact that the Veteran did not mention service or prior exposure to gun residue to any medical provider when seeking treatment for skin rash prior to filing the current claim weighs against the credibility of the assertion that he has had skin rash since service. Furthermore, the medical opinion evidence of record is against the Veteran's assertion that the skin rash is related to active service. When the Veteran underwent a VA skin examination in February 2013, the VA medical examiner cited the absence of skin rash shown in the service treatment records and opined that it was less likely than not that the Veteran's currently diagnosed nummular eczema was incurred in or caused by active service. The February 2013 VA medical examiner provided adequate rationale for the medical opinion and had adequate data on which to base the medical opinion. There is no contrary medical opinion of record. In consideration thereof, the Board finds that the February 2013 VA medical opinion is of significant probative value. Also, the Veteran's VA treatment records from 2003 to 2009 show that treating VA medical providers have identified the Veteran's skin rash as an allergic reaction to certain medications. Earlier treatment records indicate that the Veteran's skin disability was of unknown or unclear etiology. No medical provider has attributed the Veteran's skin disability manifested by rash to his period of active service. It is also notable that, in December 2001, the Veteran's wife reported that the Veteran had recently been seen for the skin rash caused by a reaction to medication, which shows that she and the Veteran believed that the skin rash was an allergic reaction to medication when seeking medical treatment for the skin rash years before filing the current claim. This evidence does not indicate that the Veteran's current nummular eczema/dermatitis is causally or etiologically related to service. Moreover, a July 2009 email exchange and Occupational Safety & Health Administration (OSHA) health guidelines included in the record identify allergic contact dermatitis and skin discoloration as symptoms or illness caused by prolonged inhalation and skin exposure to gun powder. Other medical articles included in the record show that gun powder may cause allergic skin reaction, among other symptoms. Contact dermatitis is defined as acute or chronic dermatitis caused by materials or substances coming in contact with the skin, which may involve either allergic or nonallergic mechanisms. See Dorland's Illustrated Medical Dictionary 447 (28th ed. 1994). In this case, the Veteran was not diagnosed with allergic contact dermatitis or shown to have demonstrated skin discoloration during service. As stated above, service treatment records show no complaints or findings of skin problems, and the skin was clinically evaluated as normal at the service separation examination. He is also not currently diagnosed with allergic contact dermatitis or shown to have skin discoloration that may be due to exposure to gun residue during service. Medical providers have typically identified the Veteran's nummular eczema/dermatitis as an allergic reaction to medication, not a substance that has had contact with the skin. Therefore, the July 2009 emails, OSHA guidance, and medical articles do not provide evidence in support of the appeal. Therefore, in summary, the Veteran's service treatment records are absent of any complaint, finding, or treatment for skin rash despite showing treatment for other ailments during service, and his skin was evaluated as normal at service separation. Also, the Veteran's post-service treatment record show treatment for a number of disabilities after service but do not show treatment for skin rash until 2000, approximately four decades after service separation. Treating medical providers have attributed the Veteran's skin disability to an unclear/unknown etiology or an allergic reaction to medication; however, none have attributed the disability to active service. The February 2013 VA medical examiner opined that it was less likely than not that the Veteran's skin disability was related to service. After considering the above evidence, the Board finds that it outweighs the Veteran's assertion that he developed skin rash in service and has continued to have a skin rash since that time. In consideration thereof, the Board does not find the Veteran's statements asserting ongoing skin rash symptomatology since service to be credible evidence. The Veteran has also asserted that the skin rashes may be due to exposure to aviation fuel during service. As noted above, the DD Form 214 identifies the Veteran's military occupational specialty of stock clerk was clerical in nature and does not indicate that the Veteran received any training other than that required to perform those duties; therefore, the Board finds it unlikely that the Veteran's service duties would have involved exposure to aviation fuel. Aside from the Veteran's unsubstantiated lay assertion, which is not deemed credible in light of the fact that aviation fuel exposure is not consistent with the circumstances and conditions of the Veteran's service, there is no indication in the record that the current nummular eczema/dermatitis manifested by skin rashes is related to exposure to aviation fuel. Although the Veteran has asserted that the currently diagnosed nummular eczema/dermatitis is causally related to service, his statements relating the onset of skin rash to service are not deemed credible when weighed against other, more credible evidence of record, as noted above. Additionally, the Veteran, as a lay person, is competent to report any observable symptoms but does not have the requisite medical training or credentials to be able to render a competent medical opinion regarding the cause of his currently skin disability, which first manifested many years after service separation. Such a medical opinion requires medical knowledge and training. The medical opinion evidence weighs against such a finding, as explained above, and outweighs the Veteran's unsubstantiated lay assertion. Thus, in consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim of service connection for dermatitis and, consequently, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for dermatitis is denied. REMAND In November 2011, the Board remanded the claim of service connection for seborrheic keratosis and basal cell carcinoma, in pertinent part, to afford the Veteran with a medical examination and obtain a medical opinion regarding the likelihood that the disabilities originated during, or were otherwise attributable to, military service or any event thereof, to include in-service exposure to toxic substances. Pursuant to the Board's remand order, the Veteran underwent a VA skin examination in February 2013; however, the VA medical examiner only considered the Veteran's diagnosis of dermatitis/eczema when rendering the medical opinion. The VA medical examiner did not also consider the diagnoses of seborrheic keratosis and basal cell carcinoma or provide a medical opinion on whether the disabilities were causally related to the Veteran's period of active service. For this reason, the Board finds that a remand for a supplemental medical opinion is warranted. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following actions: 1. Obtain a supplemental medical opinion from the February 2013 VA medical examiner (or another appropriate medical professional if the February 2013 VA medical examiner is unavailable), without further medical examination of the Veteran unless needed to provide the requested opinion. All relevant documents, to include the claims file and a copy of this Remand, must be made available to and reviewed by the examiner/reviewer in conjunction with the examination. The examiner/reviewer must confirm that the claims folder was reviewed in the examination report. Based on review of the appropriate records, the examiner/reviewer should state, for the diagnoses of seborrheic keratosis and basal cell carcinoma (claimed as black spots of the head, face, and back), whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that any such disability had its onset during active military service or is otherwise causally or etiologically related to service, to include in-service exposure to toxic substances to include gun residue. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. If the examiner/reviewer cannot answer any question posed without resorting to unsupported speculation, the examiner/reviewer should so state, and explain why that is so. 2. After any additional development deemed necessary is undertaken, the remanded claim should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and the representative should be provided with a Supplemental Statement of the Case and an appropriate time for response. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ THOMAS D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs