Citation Nr: 1329270 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 99-21 920A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a skin disability, manifested as a skin rash associated with tinea infection and/or dermatitis. 2. Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran had active service from September 1966 to July 1970, to include service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In November 2005 and April 2011, the Board remanded the case to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for further development and adjudicative action. By rating decision in September 2012, the AMC granted service connection for abnormal sperm parameters and infertility. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that an award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran's notice of disagreement on such issue. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Therefore, the matter of entitlement to service connection for abnormal sperm parameters and infertility is not before the Board. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claims. The documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. In this regard, the documents in the VVA file include VA treatment records dated from March 2010 to November 2012 that were not reviewed by the RO. This evidence is not accompanied by a waiver of RO consideration, permitting the Board to consider such records in the first instance. However, the Board notes that the VA treatment records (some of which note current findings of back disorder but offer no nexus opinion) address a matter not in dispute, and are not pertinent to the remaining question in this matter. As will be discussed below, current back disability has already been established; therefore, the evidence does not have to be referred to the RO for review. See 38 C.F.R. § 20.1304(c) (2012). FINDINGS OF FACT 1. A skin disability, manifested as a skin rash associated with tinea infection and/or dermatitis, is likely related to the skin rash documented in service. 2. A back disorder was not present during service; arthritis of the back was not manifested within one year after service, and any current back disorder is not etiologically related to service, to include one complaint of backache noted therein. CONCLUSIONS OF LAW 1. A skin disability manifested as a skin rash associated with tinea infection and/or dermatitis, was incurred in or as a result of service. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A back disorder was not incurred in or aggravated by active military service and service incurrence or aggravation of arthritis of the back may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist With respect to the skin disability issue, as this decision is fully favorable, any failure to meet the duties to notify and assist are of no consequence. Concerning the issue of entitlement to service connection for a back disability, which is denied herein, please be advised that the Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 &Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding the claim decided herein, the record reflects that the Veteran was mailed a letter in August 2002, advising him of what the evidence must show and the respective duties of VA and the claimant in obtaining evidence. In March 2009, he was mailed the appropriate notice with respect to the disability-rating and effective-date elements of the claim. Although the Veteran was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. There is no indication in the record or reason to believe that any ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also finds VA has complied with its duty to assist the Veteran in the development of his claim. In this regard, the Board notes that all available service treatment records (STRs), service personnel records and post-service treatment records were obtained. Neither the Veteran nor his representative has identified any outstanding, available evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. As directed by the April 2011 Board remand, a VA examination was provided in June 2011 so as to ascertain the etiology of any currently-diagnosed back disability. The examination included the requested opinion and the examiner reviewed the claims file in conjunction with the examination. Accordingly, the Board finds that there has been substantial compliance with its remand directives for this issue. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Accordingly, the Board concludes that VA has complied with its duty to assist the Veteran. VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claim. II. Service Connection Service connection may be granted for chronic disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Where a veteran served ninety days or more during a period of war or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lay assertions may serve to support a claim for service connection by establishing the occurrence of 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 also 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). The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. A. Skin Disability The STRs dated from 1966 to 1970 show that the Veteran was treated in service for skin complaints on several occasions, with findings of tinea versicolor (December 1966), tinea corporis (June 1967), and a dry scaly rash on the elbow (December 1967). The Veteran has long maintained that he has had ongoing skin problems since service. In November 2005 and April 2011, the Board remanded the Veteran's claim to obtain a medical examination and opinion to determine the nature, extent, and etiology, of the claimed skins disability, and whether it is at least as likely as not (i.e., probability of at least 50 percent) that any diagnosed skin disability is related to the Veteran's military service, to include his exposure to herbicides therein. A July 2011 VA examination report notes diagnoses of tinea versicolor and eczematous dermatitis of the scrotum. The examiner opined that these skin disabilities are not related to herbicide exposure according to present medical literature and knowledge. The examiner, unfortunately, did not provide an opinion as to whether the Veteran's skin disabilities are otherwise related to his active duty service, to include the treatment for skin disabilities noted in the STRs. For the reasons set forth below, the Board finds that the Veteran shall be afforded reasonable doubt in his favor and that service connection for a skin disability, manifested as a skin rash associated with tinea infection and/or dermatitis, is warranted. In this case we have evidence that the Veteran currently suffers from skin rash or lesions on his body similar to the dermatological symptoms documented in service. The Veteran is competent to attest that these dermatological symptoms have persisted since service to the extent he can observe a sense them through his own experience. See Jandreau, Buchanan and Davidson, Supra. The Board finds no reason to doubt the Veteran's credibility on the assertion that these same symptoms have persisted since service. This is precisely why the Board has attempted several times to obtain an adequate medical opinion to discern whether any current dermatological symptoms are related to the documented in-service symptoms. The evidence of record shows in-service symptoms of tinea infection of the skin and a scaly rash consistent with dermatitis. The post-service medical evidence reveals current tinea infection and dermatitis. The evidence of record also consists of the Veteran's competent and credible assertions that the current dermatological symptoms are the same as in-service and have persisted since. In view of significant evidence already in the Veteran's favor, coupled with the repeated failure of VA to adhere conscientiously to the duty assist the Veteran in this issue by providing an adequate examination and opinion, the Board finds that reasonable doubt shall be afforded to the Veteran. Therefore, service connection for a skin disability, manifested as a skin rash associated with tinea infection and/or dermatitis is warranted. B. Back disability The STRs show that the Veteran was hospitalized at a private facility in November 1969 after receiving blunt trauma to the chest and a hairline fracture of the left shoulder in an automobile accident earlier that month. It was noted on orthopedic consultation that the Veteran had a steering wheel injury to the chest. In February 1970, the Veteran complained of a backache secondary to an old injury. No objective findings pertinent to the back were noted at that time. A May 1970 Physical Evaluation Board examination report notes that clinical evaluation of the spine was normal. Following service, the Veteran underwent a VA examinations in January 1971 and September 1978. He made various complaints, but made no mention of any back problems. No back disability was noted on either examination. During VA psychiatric hospitalization from May to June 1984, the Veteran complained of upper back pain. September 1998 VA X-ray studies of the lumbosacral spine noted findings of moderate degenerative lumbar spondylosis. VA outpatient treatment records dated from February 2000 to June 2000 note the Veteran's complaints of back pain with radiation to the lower extremities. In February 2000, the Veteran reported that he had experienced the back pain for several months. Private imaging studies obtained in June 2000 note findings of degenerative changes of the lumbar spine. During an August 2000 VA Aid and Attendance examination, the Veteran reported having chronic low back pain for one year. An April 2002 VA MRI study revealed lumbar disc herniation. In an April 2005 statement, the Veteran maintained that he injured his back in combat. A June 2011 VA examination report notes the Veteran's history of an automobile accident in 1969. However, when asked, he stated that his back pain did not begin until 1990. After examining the Veteran and reviewing the claims file, the examiner noted the diagnosis of degenerative disc disease of the lower thoracic and lumbar spine. The examiner opined that the Veteran's back disability it is not likely secondary to military service. In this regard, the examiner noted that the claims file is silent for treatment for any back injury in service (noting that there is a progress note from 1970 with complaints of backache with no further explanation). Moreover, there is no entry or treatment in subsequent service treatment records for back problems. Nor is there any evidence of back disability in the first year after the Veteran's release from active duty. The examiner noted that the Physical Evaluation Board examination report from 1970 and the VA examination report shortly after service both reported findings of a normal spine. Additional evidence of record includes lay statements received from the Veteran from 2000 to 2009, and from his friends in 2009, which essentially state that the Veteran injured his back in an in-service car accident, and has experienced back pain since that time. Upon review of the evidence, the Board notes that although the Veteran complained of back pain on one occasion in service, he was never diagnosed with a back disability during service (to include on examination just prior to separation in 1970). In addition, there is no post-service medical evidence of any diagnosed back disability until 1998, nearly 30 years after the Veteran's discharge. Such a long interval of time between service separation and the earliest documentation of the disease is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Regarding the etiology of his recent back disability, the June 2011 VA medical opinion is clearly against the Veteran's claim. The VA physician opined that the Veteran's current back disability is not related to his military service, to include his single complaint of back pain noted therein. There is no competent (medical) opinion of record to the contrary. The Board has also considered the lay statements to the effect that the Veteran's current back disability was incurred as a result of his in-service automobile accident, or as a result of in-service combat. In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Here, as laypersons, the Veteran and his friends are not competent to provide a probative opinion regarding the etiology of the claimed back disability. Here, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, laypersons are not competent to address the existence of a current disability related to service. Nothing in the record demonstrates that the Veteran or his friends received any special training or acquired any medical expertise in evaluating orthopedic disabilities. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. The Board has considered the benefit of the doubt doctrine; as the preponderance of the evidence is against the Veteran's claim, that doctrine does not apply. ORDER Service connection for a skin disability, manifested as a skin rash associated with tinea infection and/or dermatitis, is granted. Service connection for a back disorder is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs