Citation Nr: 1324379 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 10-16 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a skin disability, claimed as eczema on the hands. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from July 1996 to June 1997 and from June 2000 to September 2006. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, and was subsequently transferred to the Wichita, Kansas, RO. In October 2012, the Board remanded this matter for further development. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for a lumbar spine disability, claimed a low back pain, was also previously remanded. In May 2013, the Appeals Management Center issued a rating decision granting this claim. Since this grant constituted a full grant of the benefits sought on appeal, this claim is no longer in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). As such, the Veteran's claim for benefit for a lumbar spine disability will not be addressed in this decision. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's current skin disability, claimed as eczema on the hands, is the result of a disease or injury associated with his active service. CONCLUSION OF LAW A skin disability, claimed as eczema on the hands, was not incurred in or aggravated by active military service, and is not otherwise shown to be related to service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act (VCAA) With respect to the appellant's claims decided herein, 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 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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. The notice requirements described above apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In March 2008, the agency of original jurisdiction (AOJ) provided the notices required by 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Specifically, the AOJ notified the Veteran of information and evidence necessary to substantiate the claims for service connection; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The March 2008 letter also provided the Veteran with the notice pursuant to Dingess. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2012) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. The record indicates the VA has unsuccessfully attempted to obtain, to the extent possible, all outstanding medical records identified by the Veteran. The Veteran has at no time referenced additional outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The record indicates that the Veteran was afforded a VA examination in March 2013 pursuant to the Board's Remand. This opinion involved review of the claims file and thorough examinations of the Veteran and the opinion was supported by sufficient rationale. Therefore, the Board finds that the examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim. Additionally, the Board finds there has been substantial compliance with its October 2012 remand directives. The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remands. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claims based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2012). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted arguments and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected. II. Merits of the Claim The Veteran and his representative argue that the Veteran's chronic skin disability had its onset during service. Governing Laws and Regulations Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b) (2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Board notes that the Veteran has been diagnosed with eczematous dermatitis which is not subject to service connection based upon continuity of symptomatology under 38 C.F.R. § 3.309(a). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), 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, (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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although 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 her 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 claims. 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 appellant). 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 appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant 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). Factual Background and Analysis According to the Veteran's in-service treatment records, in April 1997 he complained of itching around the eyes which occurs after showering. He reported he recently changed soaps. He denied blurred vision or discharge from the eyes. An examination revealed no conjunctival redness and the fundoscopic was normal without nicking, cupping, or pappilledema. Redness to the face around eyes and cheeks were noted without any lesions. The Veteran was diagnosed with allergic dermatitis. Other than this April 1997 treatment note, there are no other complaints, treatment or diagnosis for a skin disorder within the in-service treatment records, including all entrance and separation examinations. Specifically, according to the Report of Medical History dated in October 1999, March 2003, and at separation in August 2008, the Veteran stated he did not have any skin diseases and was in excellent health. In a November 2003 post-deployment health assessment, the Veteran indicated the he did not develop any symptoms of skin diseases or rashes during deployment or following. The Veteran's post-service VA treatment records within the record (dated March 2008 to May 2008) are also absent of any complaints, treatment, or diagnosis of any skin disabilities. In a June 2009 treatment record from a private dermatologist, Dr. J. T. W., the Veteran underwent a total body skin examination for a mole check. The Veteran also reported dry skin on his left palm on and off for the past two years. He stated his symptoms started as itchy and bumpy that will drain some clear fluid. There were no other skin complaints. A physical examination revealed scattered benign nevi to trunk and extremities vesicles and mild scaling to the left palm and 4th finger. The Veteran was diagnosed with eczematous dermatitis to the left hand and was instructed to start Clobetasol ointment treatment. There was no etiological opinion that the Veteran's skin disability was related to his military service. Pursuant to the October 2012 Board remand, the Veteran was afforded a VA skin examination in March 2013. The examiner noted that the Veteran was diagnosed with allergic dermatitis in August 1997 during his military service. The Veteran reported that he first noticed change in the left hand while in service and had no skin condition prior to service. The Veteran has not been treatment with any oral or topical medication in the past 12 months for any skin condition, including exfoliative dermatitis or papulosquamous disorders. The examiner noted the Veteran had dermatitis at less than 5 percent of exposed area. There was small dry skin exfoliation 1.5 by 2 mm irregular are on the pad of the 4th finger of the left hand. There was no erythema, blisters, or swelling. Moderate callus on each finger pad was attributed to exercise. The Veteran did not have acne or chloracne, vitiligo, scarring alopecia, alopecia areata, or hyperhidrosis. There was no evidence of benign or malignant neoplasm or metastases related to the Veteran's diagnosis. Upon review of the evidence of record, a physical examination, and the Veteran's lay statements, the examiner opined that it was less likely than not that the current skin disorder incurred in or caused by the Veteran's military service. The examiner determined that although the Veteran was diagnosed with allergic dermatitis in August 1997, the subsequent medical report of October 1999 was negative for a skin condition. Regarding the June 2009 diagnosis of eczematous dermatitis in both hands, the Veteran reported duration of two years. The examiner stated that the present condition represented a minimal variant of the condition in 2009. As such, the examiner concluded that "there is a lack of historical continuity from service to present [.] [T]he condition at present differed from that reported in service in type and localization." For the reasons that follow, the Board finds that service connection is not warranted for a skin disability, claimed as eczema on his hands. Although the Board accepts that the Veteran was treated for allergic dermatitis during service, the record demonstrates a post-service onset of the Veteran's current condition. This is evidenced by the subsequent in-service treatment records, following the diagnosis for allergic dermatitis in April 1997, which are absent for any complaints, treatment, or diagnosis of any skin disability. Significantly, the March 2013 VA examiner opined that the Veteran's current skin disability was less likely as not caused by or a result of his military service as there was a lack of historical continuity and the Veteran's current condition is different from his diagnosis during service. Additionally, to the extent that the Veteran invites the Board to draw the conclusion, based on no medical evidence that his current skin disability is a result of his military service, the Board declines to do so. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (The Board is prohibited from exercising its own independent judgment to resolve medical questions). The Board also notes that the Veteran has not contended that any other incident of his military service led to his currently diagnosed skin disability, and there is no evidence of record which so suggests. The Veteran has been accorded ample opportunity to secure and present medical nexus evidence in his favor. He did not do so. See 38 U.S.C.A. § 5107(a) (It is the claimant's responsibility to support a claim for VA benefits). The Board notes that the only contrary opinion of record comes from the Veteran himself, who believes there is a link between his current skin condition and his military service. The Federal Circuit in Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009), explicitly reiterated that it rejected the view that "competent medical evidence is required ... [when] the determinative issue involves either medical etiology or a medical diagnosis." Id. at 1316 . Federal Circuit held that, when considering evidence supporting a service-connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. Id. (reiterating that "[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. " A layperson may be competent to offer testimony on certain medical matters, such as describing symptoms observable to the naked eye, or even diagnosing simple conditions such as a dislocated shoulder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In this case, however, as a layperson, the Veteran is not competent to assert a causal link between any current skin disorder and service. After considering all of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection. There is no competent medical evidence which supports the Veteran's contention that his skin disability, claimed as eczema on the hands, is related to his military service. In reaching these determinations, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a skin disability, claimed as eczema on the hands, is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs