Citation Nr: 1333928 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-13 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a skin condition. 2. Entitlement to an evaluation in excess of 20 percent for lumbar spine disability. 3. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from December 1971 to October 1973. The matters on appeal come before the Board of Veteran's Appeals (Board) from a November 2007 rating decision from the Department of Veterans Affairs, Regional Office located in St. Petersburg, Florida (RO). In pertinent part of that rating decision, the RO denied the Veteran's claim for service connection for a skin condition and his claim for increased rating for lumbar spine disability. In April 2011, the Veteran submitted his application for TDIU, in which he claimed he was unemployable because of his service-connected lumbar spine disability, to include the medication to treat his disability. In Rice v. Shinseki, the Court of Appeals for Veterans Claims (Court) held that a TDIU rating claim is part of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In this case, issue of TDIU has been raised by the record. A TDIU rating claim is part and parcel of the increased rating claim, and is therefore properly before the Board. Id. Thus, the issues on appeal are as noted on the title page. In February 2013, the Veteran submitted a claim for pension and a claim for aid and attendance, but these matters have not yet been addressed by the RO. As such, the matters are not currently on appeal and are referred back to the RO for appropriate actions. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the claim for service connection for a skin condition addressed below. The issues of entitlement to an increased evaluation for lumbar spine disability and to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's current skin condition, psoriasis, was not shown in service or for many years thereafter, and the preponderance of the evidence is against a finding that it is otherwise related to his period of service. CONCLUSION OF LAW The criteria for entitlement to service connection for a skin condition, psoriasis, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 1. VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). Importantly, the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom., Hartman v. Nicholson, 483 F.3d 1311 (2007). VA sent a letter to the Veteran in January 2007 that addressed the notice elements concerning his claims. The letters informed the Veteran of what evidence is required to substantiate the claim, and apprised the Veteran as to his and VA's respective duties for obtaining evidence. VA also informed the Veteran how it determined the disability rating and the effective date for the award of benefits if service connection was to be awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. In addition to its duty to notify, or inform, the Veteran with regard to his claim, VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the available record includes service treatment records, service personnel records, post-service VA medical treatment reports, records from the Social Security Administration (SSA), and the Veteran's own statements. To the extent that any more recent records may remain outstanding, there is no indication that they are necessary for a fully informed adjudication of the Veteran's claims. The Board finds that the notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to the matters have been requested or obtained. There is no evidence that any additional relevant treatment records exist, and the Veteran has not so alleged. VA also has a duty to provide an examination; but the duty only applies when such an examination is necessary to decide a claim. Here, VA did not provide the Veteran with an examination in connection with his claim for service connection for a skin condition; however, the Board finds that an examination was not necessary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). Under McLendon, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See Id, 20 Vet. App. 79. Simply stated, VA examinations under the standards of McLendon are not warranted in this case. While the record reflects current diagnosis of psoriasis, treatment records do not show that the Veteran was first diagnosed with or treated for psoriasis until many years after his discharge from service. Although the Veteran's service treatment records are replete with treatment for pseudofolliculitis barbae, there is no document of treatment for any other skin problems during his period of service. In addition, there is no competent evidence that links the Veteran's in-service history of pseudofolliculitis barbae to his current diagnosis of psoriasis. Other than the Veteran's own statements, there is no evidence of record that links the Veteran's psoriasis to his service. Lay statements are competent evidence, which may be used as evidence of continuity of symptomatology to substantiate a claim for service connection under certain circumstances. 38 C.F.R. § 3.303(b); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Here, notably, the Veteran has not asserted, or does the evidence of record demonstrate, that he has had problems with psoriasis since his period of service. Rather, the Veteran has only generally asserted that his psoriasis is related to his period of service. The Board finds that any new medical opinion obtained today that purports to link the current diagnosis to service would be speculative at best, as there is no showing of element (2) from the McLendon analysis above - any evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies. A new examination today would not provide a reasonable possibility of substantiating the Veteran's claims, and VA has no further duty to assist in this regard. 38 U.S.C.A. § 5103A(a)(2). The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. Service Connection 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, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran seeks entitlement to service connection for a skin condition, originally claimed as psoriasis. He contends that his current diagnosis of psoriasis is related to his period of service. A review of the Veteran's service treatment records does not show any treatment or diagnosis for psoriasis. His records do show that the Veteran complained of, and was treated for pseudofolliculitis barbae throughout his period of service. He was advised to forego shaving and to use a topical cream during pseudofolliculitis barbae outbreaks. The record does not contain a copy of an examination report or associated medical history report prior to the Veteran's separation from service in October 1973. However, shortly after his separation from service, in January 1974, he was afforded a VA examination. The Veteran did not report or complain of any skin problems at that time. The first post-service medical evidence of any skin problems, to include psoriasis, comes from an August 1998 VA treatment record. At that time, the Veteran sought a prescription (Betamethasone) to treat a scalp and back condition. He was advised to follow-up with dermatology clinic. VA treatment records since April 2000 show that the Veteran has been treated for psoriasis on his back, scalp and lower legs. The Veteran claims that his current skin disorder is related to period of service. Here, the current medical evidence demonstrates that the Veteran has psoriasis. Accordingly, Hickson element (1) is satisfied with respect to psoriasis. Notably, the Veteran's postservice treatment records do not contain a diagnosis of pseudofolliculitis barbae. With respect to Hickson element (2), in-service disease or injury, the Veteran does not contend, and the evidence of record does not demonstrate, that he first developed psoriasis during service. In fact, the service treatment records are silent with regard to complaints, treatment, or diagnosis of psoriasis. Rather, the medical evidence does not show manifestations of psoriasis until two decades after the Veteran's separation from service. The competent evidence of record does not demonstrate that the Veteran's psoriasis had an onset during his periods of service or within the first year after his separation from service. Element (2), an in-service injury or disease, has not been satisfied. Service connection is denied on this basis. For purposes of completeness, the Board will also discuss element (3), nexus or relationship. Here, there is no favorable medical nexus opinion of record that supports medical links between the current psoriasis and the Veteran's period of service. Moreover, an examination to obtain such medical nexus opinion is not necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d)(2). There is no objective medical evidence indicative of psoriasis in service or at separation, no evidence of continuity of treatment since service, no evidence of treatment for all three of the conditions until two decade after service, and no medical evidence linking the currently diagnosed disorder directly to service. A VA examination is not called for in this matter. See McClendon, 20 Vet. App. 79. Essentially, there is no evidence of record that shows the Veteran's psoriasis first manifested in service and there is no favorable medical nexus opinion of record that supports a direct medical link between the current diagnosis of psoriasis and the Veteran's period of service. See 38 C.F.R. § 3.303. The Federal Circuit recently held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies to those conditions recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the disorder at issue in this case is not one of those recognized chronic conditions. Moreover, the Veteran has not asserted that he has continuity of symptoms of psoriasis since his period of service. Rather, he has only raised general assertions that his current condition is related to his period of service. While the Veteran is competent to describe his skin problems, the Board accords his statements regarding the etiology of his disability little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Accordingly, element (2), in-service disease or injury, and element (3), a nexus or relationship between the current diagnosed disorder and injury in service, have not been satisfied, and the Veteran's service-connection claim for a skin condition, psoriasis, fails on these bases. The benefit of the doubt rule is not for application because the evidence is not in relative equipoise. ORDER Entitlement to service connection for a skin condition, identified as psoriasis, is denied. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the appellant's claims. A review of the record indicates that the Veteran's last VA examination for his service-connected lumbar spine disability was in February 2010. Upon review, the Board finds that a more current examination is necessary to properly evaluate the severity of these conditions. For example, in April 2011, the Veteran has submitted a claim for TDIU in which he indicated that his lumbar spine disability had worsened. Also, the medical evidence of record suggests that the Veteran has some neurologic involvement in his lower extremity that is secondary to his service-connection lumbar spine disability, which has not yet been assessed by a VA examiner. The Board also notes that the VA treatment records demonstrate that the Veteran has been receiving continuous treatment for his service-connected disability at his local VA outpatient treatment facility. Given that the most recent VA outpatient treatment records are dated in 2009, a request for additional records must be made. Finally, as noted above, the Board finds that the record has raised a claim for a TDIU rating. Rice v. Shinseki, supra. In light of Rice, the fact that a TDIU rating claim is inextricably intertwined with the increased rating claim and the fact that the Veteran has not received appropriate notice regarding the TDIU issue, the Board finds that the claim for a TDIU rating must also be remanded. Accordingly, the case is REMANDED for the following action: 1. Inform the Veteran of the elements of a claim for a TDIU under 38 C.F.R. § 4.16; and permit him the full opportunity to supplement the record as desired. Any additional development should be undertaken as necessary. 2. Obtain and associate with the claims file all outstanding records of VA treatment since 2009. All records/responses received should be associated with the claims file. All efforts to obtain the records should be fully documented, and the facility must provide a negative response if records are not available. 3. Once all the available records have been associated with the claims folder, the RO/AMC should schedule the Veteran for VA orthopedic and neurologic examinations to evaluate the nature and severity of his lumbar spine disability, to include any neurologic involvement in his lower extremities. The claims file shall be made available to and reviewed by the examiners, and the examiners shall note such review in an examination report. All indicated diagnostic studies and evaluations deemed necessary shall be performed, and all findings shall be reported in detail. The examiner should fully evaluate the Veteran's lumbar spine disability. In so doing, the examiner should comment on the Veteran's reports regarding symptomatology and describe all objective findings. In particular, the examiner should specifically undertake range of motion studies of the spine and comment on the degree of disability due to functional losses such as pain, weakness, etc. All functional losses should be equated to additional loss of motion (beyond that shown clinically). If pain on motion is observed, the examiner must indicate the point at which pain begins. In addition, after considering the Veteran's documented medical history and assertions, the examining physician must indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. If there are indications that the Veteran is exaggerating his complaints, those indications should be recorded by the examiner, and to the extent possible, the examiner should provide an opinion as to the more likely functional loss due to the Veteran's disabilities. Also, the examining physician should also consider if there is any neurologic impairment of the lower extremities that is associated with the lumbar spine disability. If so, the examiner should identify the nerve impaired and indicate whether there is complete or partial paralysis, neuralgia, or neuritis; and whether any partial paralysis, neuritis or neuralgia is mild, moderate, moderately severe, or severe. Lastly, the examiner should opine whether the Veteran is unable to secure or maintain substantially gainful employment in light of his service-connected disabilities and in consideration of his level of education, experience, and occupational background. The examiners must discuss the rationale for all opinions expressed. If an examiner is unable to address any inquiry sought above, then he or she should explain why. 4. After accomplishing any additional development deemed appropriate, readjudicate the claims remaining on appeal. The claims for increased rating for the service-connected lumbar spine disability and for TDIU should be adjudicated. The adjudication of the TDIU claim should include consideration for a referral to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b) if the Veteran's service-connected disabilities do not satisfy the percentage requirements set forth in 38 C.F.R. § 4.16(a). If the benefits sought in connection with the claims remain denied, the Veteran should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs