Citation Nr: 1333660 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-22 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a skin disorder. ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 2000 to October 2000, and from February 2003 to April 2004, with a verified period of Army Reserves Active Duty for Training (ACDUTRA) from February 21, 2006 to March 12, 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. On his June 2010 substantive appeal, the Veteran indicated that he wanted a video hearing before the Board. In a June 2011 written statement, the Veteran withdrew the request for a hearing; therefore, the request for a Board hearing has been withdrawn. 38 C.F.R. § 20.704(e) (2013). The issue on appeal was previously remanded by the Board in May 2013 to obtain a VA addendum opinion regarding the etiology of the skin disorder. This was accomplished, and the claim was readjudicated in a June 2013 supplemental statement of the case. For this reason, the Board concludes that that the Board's remand order has been substantially complied with, and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. A skin disorder was not noted on entrance to ACDUTRA service. 2. Clear and unmistakable evidence demonstrates that the Veteran had a skin disorder prior to entry into ACDUTRA service on February 21, 2006. 3. Clear and unmistakable evidence demonstrates that the Veteran's pre-existing skin disorder did not permanently increase in severity during ACDUTRA service from February 21, 2006 to March 12, 2006. CONCLUSION OF LAW The criteria for service connection for a skin disorder have not been met for any period of service. 38 U.S.C.A. §§ 101, 1110, 1111, 1113, 1131, 1132, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A March 2008 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. This letter also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, service treatment records and post-service treatment records have been secured, including VA and private treatment records. Further, the RO arranged for VA examinations in July 2008, November 2012, and obtained a VA addendum opinion in June 2013 pursuant to the May 2013 Board remand. For reasons discussed in detail below, the Board finds the November 2012 VA examination and the June 2013 VA addendum opinions to be adequate. The opinions were provided by a qualified medical professional and were predicated on a full reading of all available records and the Veteran's history and complaints. The examiner also provided a detailed rationale for the opinions rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has not challenged the adequacy of the examinations obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Service Connection Laws and Regulations 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). The condition of a skin disorder, to include eczema, is not a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2013); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The term "active military, naval, or air service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. §§ 101(22), 101(24); 38 C.F.R. § 3.6. Service connection for INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in line of duty. See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). Annual training is an example of ACDUTRA while weekend drills are INACDUTRA. VA's General Counsel has interpreted that it was the intention of Congress when it defined "active service" in 38 U.S.C.A. § 101(24) to exclude inactive duty training during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. VAOPGCPREC 86-90. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). The correct standard for rebutting the presumption of soundness under 38 U.S.C.A. § 1111 requires that the government show by clear and unmistakable evidence both that (1) the veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. The United States Court of Appeals for the Federal Circuit noted that the lack of aggravation could be shown by establishing there was no increase in disability or that any increase in disability was due to the natural progress of the pre-existing condition. See Wagner v. Principi, 370 F. 3d 1089, 1096-97 (Fed. Cir. 2004). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has 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). 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. Service Connection for a Skin Disorder The Veteran essentially contends that he developed a skin disorder, specifically eczema of the hands, during a confirmed three-week period of ACDUTRA in El Salvador lasting from February 21, 2006 to March 12, 2006. In a May 2010 statement, the Veteran wrote that he experienced itchy red spots on his body during this period of ACDUTRA, but did not seek immediate medical treatment for the disorder because the only medical services available were emergency services. The Veteran stated that since returning from ACDUTRA he has experienced skin disorder symptomatology manifested by cracking and bleeding hands. The Veteran does not contend, and the record does not otherwise reflect, that a skin disorder was caused or aggravated during other periods of active service (i.e., June 2000 to October 2000 and from February 2003 to April 2004); therefore, the Board will only focus on the ACDUTRA period from February 21, 2006 to March 12, 2006 for which a service connection theory has been asserted. In the present case, a skin disorder was not "noted" at the time of entrance into ACDUTRA service on February 21, 2006; therefore, the presumption of soundness at service entrance attaches. See 38 U.S.C.A. § 1111. Because a pre-existing skin disorder was not noted on entering service in February 2006, VA must show clear and unmistakable evidence of both a pre-existing condition and a lack of in-service aggravation to overcome the presumption of soundness. In this case, after a review of all the evidence of record, the Board finds that the presumption of soundness at service entrance is rebutted by clear and unmistakable (obvious and manifest) evidence both that the Veteran's skin disorder pre-existed ACDUTRA service, and clear and unmistakable evidence that the pre-existing skin disorder was not aggravated by service from February 21, 2006 to March 12, 2006. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. The Board finds that clear and unmistakable (obvious and manifest) evidence demonstrates that the skin disorder pre-existed ACDUTRA service that began February 21, 2006. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. A March 2002 private treatment record from Dr. H.K. reflects a diagnosis of pityriasis rosea, reported as a rash on the abdomen, back, and armpits. A subsequent December 2005 private treatment record from Dr. H.K reflects complaints of dry rough patches on the cheeks of three weeks duration with a diagnosis of eczema. In a November 2012 VA skin examination, the VA examiner stated that the claims file was reviewed and a diagnosis of eczema was rendered. The VA examiner opined that it was less likely than not that the skin disorder related to ACDUTRA service in El Salvador from February 2006 to March 2006. In support of this opinion, the VA examiner stated that pre-service treatment records dated December 2005 diagnosed eczema prior to the tour in El Salvador. In sum, the November 2012 VA examiner opined that the post-service diagnosis of eczema on the hands was a continuation of a pre-existing eczematous condition. Further, in a March 2013 statement, the Veteran reported that he experienced eczema symptoms prior to his tour in El Salvador while also stating that his skin condition worsened as a result of the tropical heat in El Salvador. The Board finds that this lay and medical evidence demonstrates by clear and unmistakable evidence that the skin disorder pre-existed ACDUTRA service from February 21, 2006 to March 12, 2006. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. The Board has relied on treatment records prior to the period of ACDUTRA service, the November 2012 VA medical opinion, and on the Veteran's own statements. The Board further finds that clear and unmistakable evidence demonstrates that the Veteran's pre-existing skin disorder did not permanently increase in severity during ACDUTRA service, that is, was not "aggravated" by service. In this regard, service treatment records do not demonstrate that the Veteran suffered a skin disorder during any period of ACDUTRA. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. The Veteran was also afforded a VA examination in July 2008 to assist in determining the nature and etiology of the claimed skin disorder. In the July 2008 VA medical examination report, the Veteran stated that he developed eczema during his tour in El Salvador. Upon examination, the VA examiner diagnosed eczema of the hands. Having interviewed the Veteran, the VA examiner opined that it was less likely than not that the eczema was related to the medication used by the Veteran to treat service-connected hypertension. In support of this opinion, the VA examiner wrote that hypertension medications did not cause either fungal infections or eczema of the hands. The Board finds the July 2008 VA examination report to be of no probative value on the question of whether the pre-service eczema was caused or aggravated by ACDUTRA service. The Veteran does not maintain that his skin disorder is due to hypertension medication, but instead, has contended that he developed a skin disorder in El Salvador while serving a three-week period of ACDUTRA in 2006. The Veteran was afforded another VA skin examination in November 2012. The VA examiner stated that he reviewed the claims file and diagnosed eczema of the hands. The VA examiner opined that it was less likely than not that the Veteran's current skin disorder related to his ACDUTRA service in El Salvador from February 2006 to March 2006. In support of this opinion, the VA examiner stated that treatment records dated December 2005 diagnosed the Veteran with eczema prior to the tour in El Salvador. The VA examiner further reasoned that the Veteran's report of red spots on his body during ACDUTRA service were per his oral history and there was no documentation in service treatment records of this rash. Therefore, the VA examiner opined that the Veteran's post-service diagnosis of eczema on his hands was a continuation of a pre-existing eczematous condition. Finally, the VA examiner opined that it was less likely than not that the pre-existing skin disorder was permanently worsened during the ACDUTRA period as there was no documentation for this condition in service treatment records. The Veteran and his wife submitted argument in March 2013 in support of the claim for service connection for a skin disorder based on the theory of aggravation during ACDUTRA service. The wife's statement, in particular, discussed her first-hand knowledge of the skin condition upon return from the Veteran's ACDUTRA service in El Salvador in March 2006. Essentially, the Veteran's wife reported that the skin condition was significantly worse after the tour in El Salvador. She also stated that, prior to leaving for El Salvador, the Veteran's hands were smooth and healthy; however, when the Veteran returned, he had a scaly and bleeding patch of skin on the left index finger. The Veteran's wife stated that, even when the Veteran experienced severe dry skin or eczema in the past (i.e., prior to the tour in El Salvador), it was easily treated with lotion. The Veteran's wife states that after the tour in El Salvador, the skin condition was worse and treatment did not provided relief. In consideration of the statements provided by the Veteran and his wife, and pursuant to the May 2013 Board remand, a VA medical addendum opinion was obtained in June 2013 in order to assist in determining whether diagnosed eczema was aggravated (permanently worsened in severity) by the Veteran's ACDUTRA service in El Salvador. The June 2013 VA examiner noted that the claims file was reviewed and particular attention was given to the pre-ACDUTRA and post-service treatment records from Dr. H.K. and statements from the Veteran and his wife. The VA examiner stated that the Veteran clearly had eczema prior to service and noted that there was no documentation in the record, aside from the Veteran's own statements, that a hand rash developed during deployment to El Salvador between February and March 2006. Post-service treatment records from Dr. H.K. included a March 2006 treatment note which documented "eczema-doing well." This, according to the June 2013 VA examiner, demonstrated no actual aggravation of the skin disorder during ACDUTRA service. Further, the June 2013 VA examiner opined that the three week tour in hot, tropical climate (El Salvador) did not aggravate the pre-existing skin disorder as eczema was described as being a chronic inflammatory skin condition that involves genetic defects in the proteins and lipids supporting the epidermal barrier. The examiner further noted that, even if the Veteran had a flare-up of eczema during service in El Salvador, a flare-up of pre-existing eczema did not constitute aggravation or causation. For these reasons, the June 2013 VA examiner opined that the pre-existing eczema was not caused or aggravated by ACDUTRA service in El Salvador. As noted in the June 2013 VA medical opinion, the Board finds that, while the Veteran may have experienced a flare-up of eczema during his ACDUTRA service, such temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Thus, "a lasting worsening of the condition"- that is, a worsening that existed not only at the time of separation but one that still exists currently is required. Routen v. Brown, 10 Vet. App. 183, 189 (1997); Verdon v. Brown, 8 Vet. App. 529, 538 (1996). The Board further finds the Veteran's statements regarding aggravation (permanent worsening) of eczema while deployed on ACDUTRA in El Salvador are inconsistent with, and outweighed by, other lay and medical evidence, and are not credible. The Veteran has asserted that he did not receive treatment during ACDUTRA service for a skin disorder because there were only emergency medical services available while in El Salvador, and a dermatologist was not available. Further, although the Veteran now, pursuant to his claim for VA compensation purposes, maintains that the eczema worsened during ACDUTRA service, the evidence of record weighs against this contention. For example, in a private treatment note from Dr. H.K., dated March 20, 2006, and only eight days after separation from ACDUTRA service, the Veteran sought treatment (follow-up) for hypertension and stated that he was doing well. The Veteran further reported that he was using a cream with relief for eczema, which had been prescribed by Dr. H.K. in December 2005 for eczema on his cheeks. During the treatment session, the Veteran also stated that he had served three weeks in El Salvador, caught "Montezuma's Revenge," and had "no other complaints or concerns." The Board finds that, had the Veteran been suffering from increased symptoms of eczema on the hands, it is reasonable to assume that he would have reported such ailments to Dr. H.K. on March 20, 2006, especially since Dr. H.K. had previously and was currently treating the Veteran for eczema. The Veteran's own, more contemporaneous history in the March 20, 2006 post-service treatment note is more contemporaneous to service and therefore more probative. Further the statements made by the Veteran in March 2006 to Dr. H.K. were for treatment purposes, which the Board finds to be more probative than those made for compensation purposes. Lay statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declaring has a strong motive to tell the truth in order to receive proper care. In fact, the Veteran first reported the eczema on his hands to Dr. H.K. in October 2006, seven months after ACDUTRA service. Moreover, the Veteran's statements during treatment that he was using a cream with relief for eczema and did not have skin disorder symptoms at or soon after service separation outweighs the statements from the Veteran's wife asserting that the skin condition had worsened and treatment had provided no relief. Further weighing against the Veteran's credibility regarding his more recent assertion of aggravation of eczema during ACDUTRA service are post- service VA treatment notes. In a VA treatment note dated March 14, 2006, only two days after separation from ACDUTRA service, the Veteran did not report any skin disorder or worsening of the pre-existing eczema disorder. In a May 24, 2006 VA treatment note, the Veteran sought treatment for a rash of the left index finger, which, according to the Veteran, had been present for two months (i.e., about March 24, 2006 and approximately two weeks after ACDUTRA service). During the May 2006 VA treatment session, the Veteran reported that he used bleach water the night before and the index finger had swollen. At no time did the Veteran report the onset of the finger rash to have occurred in El Salvador or that it worsened during ACDUTRA service. The Board finds the VA and private treatment records, made while receiving treatment for a skin disorder, more probative than the Veteran's statements made pursuant to a claim for VA compensation benefits because the Veteran had incentive to provide an accurate medical history in order to receive good treatment. See Pond v. West, 12 Vet. App. 341 (1991) (interest may affect the credibility of testimony). For these reasons, the Board finds that the evidence weighs against the Veteran's more recent accounts that symptoms of a skin condition were permanently worsened by ACDUTRA service. See Cromer v. Nicholson, 19 Vet. App. 215 (2005) (upholding Board's denial of service connection and finding that a veteran's recent post-service account of in-service events was not credible because the veteran had previously given other histories and theories that did not mention the alleged in-service event and first "came up with the story" years after service and in connection with the compensation claim). Accordingly, and based on all the evidence of record, lay and medical, the Board finds that the Veteran's skin disorder (eczema) clearly and unmistakably pre-existed ACDUTRA service and clearly and unmistakably was not aggravated by ACDUTRA service. The Board is aware of the burden on VA to demonstrate, by clear and unmistakable evidence, that the pre-existing disability was not aggravated by service, and the Board has applied this legal standard in this case. The evidence in this case meets this high standard. As the standard is clear and unmistakable evidence on VA to rebut the presumption of sound condition at ACDUTRA entrance, a burden which has been met for the reasons explained, the rule of resolving reasonable doubt in the Veteran's favor is not applicable in this case. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. ORDER Service connection for a skin disorder is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs