Citation Nr: 1326093 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 11-13 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for hair loss, to include as due to an undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C.A. § 1117. 2. Entitlement to service connection for skin disorder, to include as due to an undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C.A. § 1117. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from February 1988 to February 1992. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office in Providence, Rhode Island. The issue of entitlement to an increased rating for the Veteran's service-connected anxiety disorder was also on appeal and addressed in the most recent supplemental statement of the case (SSOC) issued in May 2012. In a May 2012 rating decision, the RO increased the Veteran's disability rating from 10 percent to 30 percent. In a subsequent May 2012 statement, the Veteran indicated that he was satisfied with this rating and withdrew his appeal with respect to this issue. Thus, there remain no allegations of errors of fact or law for appellate consideration of this issue. See 38 C.F.R. § 20.204 The Veteran's Virtual VA electronic record has also been reviewed in conjunction with the appeal and primarily includes records that are either duplicate of records already in the claims file or are not pertinent to the issues on appeal. However, it does include additional VA outpatient treatment records dated from May 2011 to December 2011 that were considered by the RO in the May 2012 SSOC. The issue of entitlement to service connection for a skin disorder 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. FINDING OF FACT Hair loss, diagnosed as androgenic alopecia, is not shown to be causally or etiologically related to any disease, injury, or incident in service, to include exposure to environmental hazards in the Southwest Asia theatre of operations. CONCLUSION OF LAW The criteria for service connection for hair loss, diagnosed as androgenic alopecia have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1117, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist 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. 2012); 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: (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). 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) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The Veteran was sent notices in December 2008, March 2009 and April 2009 that fully addressed all notice elements and were sent prior to the initial RO adjudication. The letters advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Moreover, the letters informed the Veteran of 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). In this regard, the claims file contains the Veteran's post-service reports of private and VA treatment, and a VA examination report. Further, a review of Virtual VA includes additional VA treatment records that were considered by the RO in the most recent supplemental statement of the case issued in May 2012. It appears that the Veteran's service treatment records are currently unavailable. In a case in which a veteran's service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist in the development of the claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a veteran in developing facts pertaining to his claim in a case in which service medical records are presumed destroyed includes the obligation to search for alternative medical records). In light of the unavailability of the service treatment records, in April 2009, the RO prepared a Formal Finding of Unavailability outlining its attempts to obtain such records. Further, in an April 2009 letter, the RO notified the Veteran that his records were unavailable and requested that he submit any such records in his possession and also notified him of documents that could substitute for his service treatment records. To date, the Veteran has not submitted any additional records. Thus, the Board finds that the RO has met its heightened duty to assist in the instant case. The Veteran was afforded a VA examination in September 2011. As the VA examination was prepared by a competent clinician who considered the Veteran's claims file and medical history in the report and provided an etiological opinion, complete with rationale, the Board finds that the examination is adequate to adjudicate the Veteran's claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Furthermore, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available additional 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. 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 The Veteran is seeking service connection for hair loss. Specifically, he asserts that exposure to environmental hazards while stationed in the Southwest Asia theatre operations caused his hair loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board recognizes that the Veteran has asserted that his hair loss is due to exposure to environmental hazards while stationed in the Southwest Asia theatre of operations. In this case, the Veteran's service personnel records show that he served in Southwest Asia. Service connection may be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1) (VA has issued an interim final rule extending this date to December 31, 2016. A "qualifying chronic disability" for purposes of 38 U.S.C.A. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome (IBS)) that is defined by a cluster of signs or symptoms, or (C), any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain;(6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). Private treatment records showed that the Veteran underwent a hair transplant in September 2005. Follow up records continued to show treatment for the Veteran's hair loss. In support of his claim, the Veteran submitted an internet publication addressing androgenic alopecia, which indicated that some environmental factors may play a role in androgenic alopecia. VA treatments are silent with respect to the Veteran's hair loss. In September 2011, the Veteran was afforded a VA examination for his hair loss. The claims file was reviewed. The Veteran reported losing his hair approximately seven years after leaving service. He again attributed his hair loss to chemical exposure while in the oil fields in Southwest Asia. Despite the appearance of male pattern baldness, the Veteran did not feel his hair loss was hereditary as his parents, grandparents and siblings all had full heads of hair. The examiner noted that the Veteran presented information from an internet search indicating that persons exposed to oil and smoke and other petrochemicals and certain immunizations from the Gulf War experience a number of symptoms including hair loss. After examining the Veteran, the diagnosis was androgenic alopecia. The examiner observed that the Veteran's current physical examination was consistent with androgenic alopecia or hereditary male pattern baldness. The examiner continued that the Veteran's history of hair loss (seven years after exposure) and pattern (male pattern baldness) is inconsistent with literature on environmental factors. The examiner concluded that the Veteran's hair loss was not a result of environmental exposures in the Southwest Asia theatre of operations. The medical evidence shows that Veteran's hair loss has been attributed to androgenic alopecia, a diagnosed condition; therefore, service connection for this disability under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 is not permitted as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). As such, the Board must consider if service connection may be granted on a direct basis. Following a careful review of the evidence, the Board finds that service connection is not warranted for the Veteran's androgenic alopecia. The first post service-medical evidence of hair loss is dated in September 2005 when the Veteran underwent a hair transplant at a private facility, which was over 13 years after the Veteran's discharge from service. As such, there is no medical evidence of pertinent symptomatology since service to support a claim for service connection. Further, the private treatment records are also silent with respect to any link between the Veteran's hair loss and his service. Moreover, the VA examiner in September 2011 opined that the Veteran's androgenic alopecia was consistent with hereditary male pattern baldness. Service connection for congenital or developmental defect is precluded by 38 C.F.R. §§ 3.303(c), 4.9. If a disability is superimposed on the developmental defect during service, the superimposed disability may be service connected. See VAOPGCPREC 82-90 (July 18, 1990). Here, however, there is no evidence that the Veteran's androgenic alopecia was superimposed on a developmental defect during service. Rather, the VA examiner opined that the Veteran's hair loss was not related to environmental exposures during military service. The opinion was based upon review of the claims file and a physical examination, and is found to be of high probative value. There is no medical opinion to refute this opinion. The Board recognizes the internet publications submitted by the Veteran indicating that environmental hazards could play a part in hair loss. Nevertheless, after reviewing and considering these articles, the VA examiner found that the Veteran's hair loss was not attributed to such hazards given the length of time after exposure and pattern. As these articles do not specifically address the Veteran's hair loss or his history, the Board must find that they are outweighed by the VA examination. The Board observes that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Citing Buchanan and Jandreau, the Federal Circuit reiterated that it had previously and explicitly 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In the instant case, the Veteran is competent to report an in-service incident such as losing his hair. He is also competent to report pertinent symptomatology since service. However, the Veteran did not report any hair loss in service. Rather, he indicated that it began approximately seven years after service. Moreover, given that the Veteran himself reported that his hair loss began seven years after service, there is no evidence of pertinent symptomatology. Moreover, he is not competent to directly link any current hair loss to service as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Davidson, supra; Jandreau, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In conclusion, based on the analysis above, the Board finds that the preponderance of evidence is against the Veteran's claim for service connection for hair loss, diagnosed as androgenic alopecia. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Service connection for hair loss, diagnosed as androgenic alopecia, is denied. REMAND Although the Board regrets further delaying appellate review, a review of the record indicates that further development is necessary with respect to the skin disorder issue. The Veteran asserts that his current skin disorder is due to his service in the Southwest Asia theatre of operations. In the alternative, he has also indicated that his skin problems could be attributed to nerve agent drug therapy. As noted above, signs or symptoms that may be manifestations of undiagnosed illness include signs or symptoms involving skin. See 38 C.F.R. § 3.317(b). However, the Veteran has not been afforded a VA examination with respect to this disorder. Moreover, the Veteran has reported skin rashes that come and go since his return from the Southwest Asia theatre of operations. See Jandreau, cited above. Accordingly, the Board finds that the Veteran should be afforded a VA examination to determine the nature, extent and etiology of any current skin disorder. Moreover, the claims file includes private treatment records pertaining to the skin dated from March 2005 from Bill Finch Medical. VA treatment records that have been associated with the record do not address the Veteran's skin disability. In light of the need to remand, the Veteran should also be provided an opportunity to identify and/or submit any additional VA and non-VA treatment records pertaining to his skin disorder. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an opportunity to identify and/or submit any other records of VA and non-VA treatment for a skin disorder that have not yet been associated with the claims file. 2. After any outstanding records have been associated with the record, schedule the Veteran for a VA examination by a medical professional with the appropriate expertise to determine the nature and etiology of the Veteran's claimed skin disorder. The examiner must review the claims file before completing the examination report. The examiner should identify any objective evidence of the Veteran's claimed skin disorder; render a diagnosis with respect to each claimed symptom which is due to a known clinical diagnosis; and, provide an opinion with respect to each currently diagnosed disorder as to whether it is at least as likely as not that the disorder is etiologically related to the Veteran's military service, to include exposure to environmental hazards in the Southwest Asia theatre of operations as well as nerve agent drug therapy. The examiner should also specifically identify any objectively demonstrated symptoms that are not attributable to a known clinical diagnosis and whether such constitute a medically unexplained chronic multisymptom illness. The examiner should further indicate whether such disabilities existed for 6 months or more or whether they exhibit intermittent worsening over a 6 month period. The examiner should provide the supporting rationale for each opinion expressed with consideration of the medical and lay evidence of record. 3. In the interest of avoiding future remand, the RO should then review the examination report to ensure that the above questions have been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies in the examination report. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs