Citation Nr: 1325778 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 10-06 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a skin rash, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The Veteran served on active duty from July 1956 to July 1960, and from October 1960 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran was afforded a Board hearing, held by the undersigned, in March 2011. A copy of the hearing transcript (Transcript) has been associated with the record. The Board, among other things, remanded the issue on appeal in May 2013 for additional development. The issue of entitlement to service connection for hemorrhoids was also remanded in May 2013. A subsequent June 2013 rating decision, however, granted entitlement to service connection for hemorrhoids. Therefore, the appeal as to this matter has been resolved. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT A congenital skin rash disorder is shown to have been first manifest during active service. CONCLUSION OF LAW The criteria for service connection for a skin rash are met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in January 2006 and December 2008. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to these matters have been requested or obtained. The available record includes a limited number of service treatment records, VA treatment and examination reports, private treatment records, and the Veteran's statements and testimony in support of his claim. The Board notes that the Veteran's file has been rebuilt, and that service treatment reports from his second period of service have been lost. In situations such as these, there is a heightened obligation to assist the Veteran in the development of his case. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The record shows the Veteran was notified that his file had been rebuilt and advised to provide copies of any pertinent documents in his possession. He subsequently provided copies of service treatment records, though not complete, and private treatment record he had in his possession. As the benfit sought on appeal is granted, no further discussion of VA's duties to the Veteran is required. Although a list of VA treatment appoints also shows the Veteran received dermatology treatment during the period from March 1991 to October 1998 and these specific report have not been obtained, there is no indication, in light of the evidence of record, that they could assist the Veteran in substantiating his claim. The development requested on remand in May 2013 has been substantially completed. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. The June 2013 VA medical opinion obtained in this case is adequate as it is predicated on a substantial review of the record and medical findings and considers the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Service Connection Claim Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for diseases that are of congenital, developmental, or familial origin where such disease was first manifest during service or progressed at an abnormally high rate during service. VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45711 (1990). Diseases of allergic etiology may not be disposed of routinely for compensation purposes as constitutional or developmental abnormalities. Service connection must be determined on the evidence as to existence prior to enlistment and, if so existent, a comparative study must be made of its severity at enlistment and subsequently. Increase in the degree of disability during service may not be disposed of routinely as natural progress or as due to the inherent nature of the disease. Seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The determination as to service incurrence or aggravation must be on the whole evidentiary showing. 38 C.F.R. § 3.380 (2012). A veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). The presumption of soundness attaches only where there has been an induction medical examination and where a disability for which service connection is sought was not detected at the time of such examination. Only such conditions as are recorded in examination reports are noted and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of those conditions. Crowe v. Brown, 7 Vet. App. 238 (1994). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). Where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). In order to prevail on the issue of service connection on the merits, there must be (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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2012). In this case, the available service treatment records show the Veteran's July 1956 enlistment examination revealed a normal clinical evaluation of the skin. A February 1974 allergy clinic report noted he had some skin rash, but no hives or eczema. No diagnosis of a skin disorder was provided at that time. In statements and personal hearing testimony the Veteran reported that he developed skin problems during active service, including as a result of Agent Orange exposure. He asserted he had been exposed to Agent Orange while serving aboard ship in the waters offshore of the Republic of Vietnam, but that he did not set foot on land in Vietnam. He stated that he was treated for shin rash during active service. Private medical records submitted in support of the claim show the Veteran was treated for a skin rash all over his body in March 1980. The diagnosis was dermatitis. Subsequent private and VA treatment records show he was treated for rash on several occasions over the years and that various diagnoses were provided. VA examination in June 2013 included a diagnosis of dermatitis and found that the Veteran had genetically dry, irritable skin which tended to run in families with allergies, sinus problems, and asthma. It was noted the Veteran's sister had asthma. The examiner also noted that his past records revealed dermatitis, hyperkeratoses, skin rashes, and other skin disorders that were manifestations of the same disorder, and that the disorder had fluctuated in severity. The disorder was found not to have been manifested during, incurred during, or a result of active service and that it was not likely his exposure to herbicides or other experiences caused or exacerbated his skin disorder. Based upon the evidence of record, the Board finds that the Veteran's congenital skin rash disorder is shown to have been first manifest during active service. The Veteran is presumed to have been sound upon enlistment and the evidence of record shows his skin rash was first manifest during active service. Although the June 2013 VA examiner found the Veteran had genetically dry, irritable skin and a fluctuating skin disorder that was not manifested in service, the Board finds the Veteran's statements as to his treatment for skin problems in service to be consistent with his service and with the findings of a February 1974 allergy clinic report. The June 2013 examiner's opinion is, however, persuasive that the Veteran's present dermatitis is the same disorder for the various rashes for which he was treated over the years during and after service. The disorder is not shown to have subsided over the years upon the removal of an allergen and is demonstrated to be a chronic disability. The Board finds the criteria for service connection for a skin rash are met. Therefore, the claim must be granted. ORDER Entitlement to service connection for a skin rash is granted. ____________________________________________ Tresa M. Schlecht Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs