Citation Nr: 1334378 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-08 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a skin disorder of the feet (claimed as residuals of a chemical burn of the feet). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from August 1989 to January 1993. She also had active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) from January 1993 to June 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the St. Paul, Minnesota, Department of Veterans Affairs (VA), Regional Office (RO), which denied service connection chemical burn of the feet, bilaterally. In a February 2011 and August 2012, the Board remanded the claim for additional development. FINDING OF FACT The recurring rash of the Veteran's feet, which has been diagnosed as dyshidrotic eczema, did not have its onset in service and is not shown to be etiologically related to her active service, to include being a residual of chemical burns. CONCLUSION OF LAW A skin disorder of the feet was not incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The Veteran asserts that she sustained chemical burns of the feet during service. Specifically, she asserts that in January or February of 1991, she spilled jet fuel onto her body and feet while performing duties as a fuel handler. She asserts that she rinsed off, but that she forget to rinse off her boots, and that she developed burns on her feet as a result. She states that she sought treatment for her burns, that she was told to go without combat boots, and that she was given a topical medication for her feet. She asserts that she has flare-ups on both feet during which she develops blisters, followed by peeling. See e.g. Veteran's claim (VA Form 21-526), received in June 2008, Veteran's letter, received in March 2011. In February 2013, she submitted photograph of her feet. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Under 38 C.F.R. § 3.303(b) , an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); a skin rash such as dyshidrotic eczema is not a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology does not apply here. 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). Service treatment records are silent with regard to complaint, treatment, or diagnosis of a chemical burn of the feet or a skin disorder of the feet. A November 1991 note shows that the Veteran was seen for complaints of a rash on her right side that was diagnosed as contact dermatitis but there was no reference to her feet. Indeed, when she was provided a "Chapter 8" examination report in December 1992, the Veteran's skin and feet were clinically evaluated as normal. In an accompanying "report of medical history," the Veteran denied having a history of foot trouble, or skin diseases. No history of burns to the feet was noted in either the examination report, or the report of medical history. Service treatment records from the Veteran's post-active duty service with the National Guard include an examination report, dated in January 1998, which shows that her skin and feet were clinically evaluated as normal. In an accompanying "report of medical history," the Veteran denied having a history of foot trouble, or skin diseases. No history of burns to the feet was noted in either the examination report, or the report of medical history. Six "annual medical certificates," dated between 1995 and 2000, show that the Veteran indicated that she did not currently have any medical problems. As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 2009 and 2013. This evidence includes VA progress notes, which show that in February 2009, the Veteran reported a history of sustaining chemical burns on the tops of her feet from an aviation fuel spill, with subsequent hypersensitivity when exposed to sunshine. On examination, there was no active dermatitis, and the skin was clear throughout. A May 2012 report shows a similar reported history, and that on examination, the Veteran had patches on the bottom of her right foot, laterally. A VA foot examination report, dated in May 2011, shows that the examiner stated that the Veteran's claims file had been reviewed. The Veteran reported that in about January 1991, she spilled fuel on herself and soaked her boots, which, in combination with the hot sun, caused a chemical burn to the tops of her feet. She stated that she was treated by a medic, who gave her cream for her feet and told her not to wear combat boots for several days. She stated that she wore sandals for about one week and had blistering of the skin that had healed, but that since that time she has had ongoing itching, as well as a prickly, burning sensation when her feet were exposed to sunlight or hot water. She denied any current problems with ambulation, cold sensitivity, numbness or tingling, or dysthesias of the feet. On examination, there was no scarring or disfigurement. The percentage of exposed areas affected, and percentage of entire body area affected, was 0 (zero) percent. The examiner stated that there was no pathologic diagnosis. The examiner stated: The Veteran's current condition is NOT a result of aggravation of events which occurred while in the military. Service medical records do not document evaluation or treatment for any foot condition. The Veteran describes signs and symptoms of a second degree burn to the feet. It is unlikely that she would not receive, or seek out, continuous short-term medical treatment for a second degree burn since these types of burns are typically very painful and require aggressive treatment such as daily dressing changes and daily topical medication application for 7-10 days. She reported that she believes that she did follow-up once after initial treatment with topical cream but after she reviewed her medical records she reports that this documentation is not in the records probably due to the misplacement or loss of some of her records. Her report of an incomplete file is also unlikely since the Veteran has an extensive file where it is documented that she was seen on numerous occasions for numerous different conditions throughout her military service time. Even if the Veteran did sustain a first or second degree burn to her feet, these burns typically are self-limiting and heal completely without significant residuals. Second-degree burns often-times cause superficial scarring but on examination today there is no evidence of any scarring or skin abnormality of the feet. In an addendum, dated in August 2012, the examiner who had performed the May 2011 examination stated that she had reviewed color photographs submitted by the Veteran dated in August 2011, and that they show two small, round, papular lesions without surrounding edema, erythema, on the dorsal distal aspect of the left foot. Close-up views showed a small area of skin peeling and a cluster of small, round popular lesions with surrounding mild erythema on the distal medial aspect of the right foot. There were no open lesions, no blistering, and no vesicles. The examiner stated: My previous opinion has not changed. The Veteran has demonstrated evidence of a recurring rash on her feet, however, this is no due to or an aggravation of a chemical burn to the feet while in the military. Chemical burns heal typically without residuals and do not result in an ongoing, chronic condition after the insulting agent (chemical) has been removed/irrigated or treated with a topical antibiotic. There is no objective medical evidence to support that the current skin rash of the bilateral feet is due to or aggravated by a chemical burn. A report from St. Luke's, dated in April 2012, shows that the Veteran was treated for complaints of intermittent rashes on her feet "consistent with dyshidrotic eczema which she treats with a steroid intermittently." Her past history was not noted to include chemical burns. On examination, there were no relevant findings. The assessments included dyshidrotic eczema. A report from J.A.E., M.D., dated in March 2013, shows that the Veteran reported a history of inservice exposure to jet fuel, including her feet, with ongoing recurring rashes and heat insensitivity, and spots around her toes and the sides of her feet beginning in 2012. On examination, her feet had "little subtle hyperpigmentation on the top and instep of her right foot, with no significant deep or restrictive scarring seen. She had a little bit of flaky dry scale on the bottoms of her feet and some clustering of that under a couple of toes on the right foot. The bottom of the right toe had a couple of subtle pink papules. Her left foot "was in even better shape," with a little bit of dry scale on the bottoms of the feet but no sign of rash or scarring. The assessment was rash. The assessment notes a recurring heat-sensitive rash on the feet, most suspicious for recurring tinea pedis, atopic or dyshidrotic eczema, and that it was "Difficult to connect this directly with chemical exposure 20 years ago based on today's evidence." The claims file includes a lay statement from A.M.S., received in June 2011, in which the author states the following: she served with the Veteran in the Continental United States, and in Saudi Arabia between July 1990 and April 1991. They served at a refueling point, and that there were often spills of jet fuel. One day the Veteran was soaked by jet fuel and as she only had one pair of boots, she had to wear them although they were soaked. She sustained chemical burns and went on profile, and she was allowed not to wear her boots for a few days. Based on the foregoing, the Board finds that the totality of the evidence fails to support the grant of service connection for a skin disorder of the feet, which has been claimed as a residual of chemical burns. Consideration has been given to the personal statements of the Veteran and A.M.S. with regard to her experiencing a chemical burn following a fuel spill. Such is certainly plausible; especially since the Veteran's military occupational specialty was a Petroleum Supply Specialist. See 38 U.S.C.A. § 1154(a)(1) (West 2002). However, the fact remains that the Veteran's service treatment records do not show any complaints, diagnoses, or treatments for burns to the feet, or any other foot symptoms. There is also no documented medical evidence of a skin disorder of the feet until 2011, which is approximately 18 years after separation from active duty service. Moreover, and of significant import, a VA examiner has twice rendered the opinion that there is no relationship between the Veteran's current skin rash of the feet and her active service, to include any chemical burn that may have occurred. The examiner not only found that there was no evidence that a chemical burn occurred in service but also determined that the chemical burns would have been self-limiting, if they had occurred, and would have not caused or aggravated her current skin problems. Both opinions are highly probative evidence against the claim, as the examiner indicated that the opinions were based on a review of the Veteran's C-file, and the opinions are accompanied by a sufficient rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consideration has been given to Dr. E.'s March 2013 report. However, Dr. E does not assert that the Veteran has residuals of a chemical burn to her feet due to her service. He instead stated that she had a recurring heat-sensitive rash on the feet that was most suspicious for recurring tinea pedis, atopic or dyshidrotic eczema, and that it was "[d]ifficult to connect this directly with chemical exposure 20 years ago." This evidence is insufficiently probative to warrant a grant of the claim. The Board has also considered the lay statement, as well as the Veteran's assertion that her current foot problems are related to her active service. There is evidence that the Veteran is an LPN (licensed practical nurse), see April 2012 report from St. Luke's, and she is considered to be competent to report skin symptoms on her feet. However, she (as well as the author of the lay statement) is not shown to have expertise with regard to skin disease, and there is no indication that she is competent to etiologically link her reported in-service symptoms to her current disorders involving the skin or her feet, which were not diagnosed until many years post-service. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir. 2012); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches). This lay evidence therefore lacks sufficient probative value to warrant a grant of the claim. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. The Board has considered the applicability of "benefit of the doubt" doctrine; however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of these matters on that basis. 38 U.S.C.A. § 5107(b). II. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor her representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via a letter dated in July 2008 of the criteria for establishing service connection, the evidence required in this regard, and her and VA's respective duties for obtaining evidence. She also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements. Nothing more was required. The matter was then readjudicated as recently as January 2013. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); 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 an statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The Board notes that the Veteran submitted additional treatment records, to include the March 2013 report from Dr. E., as well as photographs of her feet. This evidence was received after the last RO review in January 2013. However, in a statement received in January 2013, the Veteran asked the Board to expedite the processing of her appeal, and that she would AOJ consideration of any evidence that she would submit at a later date. The Board accepts this evidence for inclusion in the record on appeal. 38 C.F.R. § 20.1304 (2013). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA records. The Veteran has been afforded an examination, and an etiological opinion has been obtained. In February 2011, and August 2012, the Board remanded this claim. In its February 2011 remand, the Board directed that the Veteran be afforded an examination, and that an etiological opinion be obtained. In May 2011, this was done. To the extent that the Board directed that an attempt be made to verify all periods of active duty for training, and inactive duty for training, this appears to have been in association with a claim for service connection for a left trapezius muscle disorder, and this claim has been granted. The Veteran has stated that the issue currently on appeal occurred during active duty. In August 2012, the Board directed that a supplemental opinion be obtained as to whether it is at least as likely as not that any identified foot disorder had its onset during the Veteran's service in the Persian Gulf or is otherwise etiologically related to her active service. In August 2012, the VA examiner who performed the Veteran's February 2011 examination stated that the Veteran's recurring skin rash of her feet "is not due to or an aggravation of a chemical burn to the feet while in the military." She further stated that, "There is no objective medical evidence to support that the current skin rash of the bilateral foot is due to or aggravated by a chemical burn." Given the foregoing, the Board finds that there has been substantial compliance with its remands. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for a skin disorder of the feet (claimed as residuals of a chemical burn of the feet) is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs