Citation Nr: 1334989 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 06-00 312 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a skin condition, to include post-inflammatory hyperpigmentation of the upper back and shoulders and folliculitis, claimed as a skin rash due to undiagnosed illness. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from December 1973 to May 1978 and from January 1991 to May 1991, with additional service in the National Guard. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from an August 2005 rating decision, by the Jackson, Mississippi, Regional Office (RO), which determined that new and material evidence had not been submitted to reopen the Veteran's claim of entitlement to service connection for a skin rash due to an undiagnosed illness. The Veteran testified at a hearing before a Decision Review Officer (DRO) in April 2006. A transcript of that hearing has been associated with the claims folder. On August 31, 2007, the Veteran offered testimony at a hearing before the undersigned Acting Veterans Law Judge, sitting at the RO. A transcript of that hearing is also of record. In September 2008, the Board found that the Veteran had submitted a timely notice of disagreement with a June 1996 rating decision, which denied service connection for a skin condition. Thus, the June 1996 rating decision was not final with respect to the Veteran's claimed skin condition, but rather that claim remained on appeal since that time. Accordingly, the Board determined that new and material evidence was not required in order to reopen the skin disorder claim, and re-characterized the issue appropriately based upon that determination. The Board remanded the claim for service connection for a skin condition for further evidentiary development. Following the requested development, which included a VA compensation and pension examination in December 2008, a supplemental statement of the case (SSOC) was issued in April 2010. In December 2010, the Board again remanded the case to the RO for further evidentiary development. Following the requested development, which included obtaining a medical opinion, an SSOC was issued in November 2011. In September 2012, the Board once again remanded the case for still further evidentiary development. Following a review of the claim, in May 2013, the Board referred the case to the Veterans Health Administration (VHA) for an expert opinion concerning the Veteran's claim for service connection for a skin condition, including as due to an undiagnosed illness. See 38 U.S.C.A. § 7109 (West 2002); 38 C.F.R. § 20.901(d) (2012). The requested VHA opinion was received in June 2013 and incorporated into the record. The Veteran and his representative were provided a copy of the opinion in June 2013 and provided a period of 60-days to respond. The Board has reviewed the Veteran's physical claims file, as well as the Veteran's electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The Veteran's skin symptomatology has been attributed to diagnosed folliculitis eczema, which was not present in service and is not etiologically related to service. CONCLUSION OF LAW The Veteran does not have a skin condition that was incurred in or aggravated by service; nor is such a disorder due to an undiagnosed illness. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 U.S.C.A. §§ 3.102, 3.159, 3.303, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in an SOC or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). While the notice provided to the Veteran in July 2005 was not given prior to the first RO adjudication of his claim, the notice as provided by the RO prior to the transfer and recertification of the case to the Board complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Additional letters were issued in December 2008, December 2010, and October 2012. Those letters informed the Veteran of what evidence was required to substantiate the claim, and of his and VA's respective duties for obtaining evidence. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. He was provided an opportunity to submit additional evidence. Thus, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. Therefore, the Board is satisfied that the RO has complied with the duty-to-assist requirements of the VCAA and the implementing regulations. Neither the Veteran nor his representative has contended that any evidence relative to the issue decided herein is absent from the record. The Veteran was afforded examinations in December 1997, April 2003, and October 2008. The reports reflect that the examiners solicited symptoms from the Veteran, examined the Veteran, and provided diagnoses consistent with the record. Therefore, these examinations are adequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual background. The record indicates that the Veteran served on active duty from December 1973 to May 1978 and from January 1991 to May 1991. The service treatment reports (STRs) include a report of medical history dated in December 1977, which noted that the Veteran had a history of multiple "bumps" on his face, chest, and back; the bumps were described as pruritic. The examination report noted a finding of cystic acne. The Veteran's initial claim for service connection for a skin rash (VA Form 21-526) was received in November 1995. Submitted in support of the claim were VA progress notes dated from July 1994 to August 1995, which show that the Veteran received follow up treatment for a rash. The Veteran was seen in February 1995 for complaints of a rash on his back and papules over his chest and back. The assessment was nummular eczema vs. allergic contact vs. tinea, and folliculitis. In March 1995, the Veteran was seen for complaints of a rash; he was diagnosed with folliculitis. Received in March 1996 were VA progress notes dated from July 1994 to December 1995, reflecting ongoing treatment for a skin rash, variously diagnosed as folliculitis and acne. On the occasion of a VA examination in April 1996, it was noted that the Veteran had some black marks on his back and shoulders that have been present for one year. Examination revealed multiple 2 mm hyperpigmented maculas on the front of his chest, upper arms and upper back that were consistent with post inflammatory hyperpigmentation. There was also a large patch approximately 6 cm by 2 cm in the lower mid back area that was excoriated and had sparce follicular pustules with some skin. The pertinent diagnoses were post inflammatory hyperpigmentatin, upper back and shoulders; and lower back folliculitis versus tinea corpus, versus, steroid acne. During a VA examination in November 1997, the Veteran reported a history of a rash on his back for the past two to three years; he stated that it started small and got larger. The Veteran indicated that the rash has been there constantly over that period of time; however, it worsens in the summer. The Veteran reported being in the Army from January 1991 to May 1991 and serving in the Persian Gulf. The pertinent diagnosis was pit folliculitis. The examiner noted that this diagnosis is a very common one in the non-military population and it is just as likely as not to be related to his service. Medical evidence of record, VA as well as private treatment report, dated from November 1997 through November 1999 were negative for any complaints, diagnosis or treatment for a skin rash. Received in July 2005 were VA progress notes dated from June 2005 to July 2005. Among these records was the report of a Gulf War examination, conducted in July 2005, at which time the Veteran reported having a rash and itching of the back that began which had their onset in January 1991. The diagnosis was follicular eczema. Received in November 2005 were VA progress notes dated from March 2005 to October 2005. These records show that the Veteran received clinical attention and treatment for a skin rash. In May 2005, the Veteran was seen for evaluation and participation in the SUDP program. The Veteran reported chronic skin rashes on his back, abdomen and chest. The assessment was dermatitis/leishmaniasis. A dermatology consultation note, dated in June 2005, indicates that the Veteran was seen for evaluation of a refractory rash on his trunk for 10 years; he has tried multiple therapies without success. The assessment was follicular eczema. At his personal hearing in April 2006, the Veteran reported that he first noticed the rash on his back about a year or two after service in Desert Storm. He sought treatment at the VA medical center in Mobile, Alabama. The Veteran stated that he continues to have problems with a rash today; he still hasn't found any relief for the skin rash. The Veteran indicated that he has the rash all over his body, including his back, stomach and his legs. Received in November 2006 were VA progress notes dated from April 2006 to October 2006, reflecting treatment for several disabilities, including a skin rash diagnosed as dermatitis/eczema. Received in April 2007 was a disability determination transmittal form from the Social Security Administration (SSA), dated in December 2001, which shows that the Veteran was found to have become disabled in August 1999 due to affective or mood disorder and disorders of the back. Submitted with that decision were treatment records dated from September 1998 through July 2001 which show that the Veteran received clinical attention and treatment for several disabilities, including a rash on his back. Treatment records from Dr. Angela Wingfield dated from February 2005 to October 2005 reflect treatment for a skin rash, diagnosed as folliculitis. At his personal hearing in August 2007, the Veteran reported that he first noticed the skin rash around 1991 or 1992 after returning home from Desert Storm. The Veteran indicated that he first thought that it was perhaps from the heat and it would go away; he noted that it started in the middle of his back. The Veteran related that the skin rash has now spread up his back, shoulders and stomach; he stated that he also has spots down his leg. The Veteran indicated that his doctor has told him that the rash could have resulted from some kind of exposure during Desert Storm. The Veteran related that he was diagnosed with eczema in 2005 by Dr. Wingfield; while she didn't know what the rash was, she did not agree with what the VA said. The Veteran indicated that he has been prescribed all kinds of cream and medications to help the itching caused by the rash. Submitted at the hearing was the report of a Gulf War examination, conducted in July 2005, at which time the Veteran reported having a rash and itching of the back that began which had their onset in January 1991. The diagnosis was follicular eczema. On the occasion of a VA examination in September 2008, the Veteran stated that he developed a rash on his back, chest, abdomen, thighs and groin area in 1995; he was seen by dermatology at the VA medical center. The Veteran indicated that biopsies were performed and he was diagnosed with follicular eczema. The Veteran claimed the onset of the rash to be in 1995, which is four years post active duty status. He stated that he underwent ultraviolet treatments through his private physician in consultation with the VA medical center. The Veteran indicated that his rash has been present continuously over the last 12 months, and he has been treating it on a daily basis. The examiner stated that, reviewing the clinical files, including the STRs, there is no documentation to indicate treatment for a skin condition throughout the Veteran's active service. The pertinent diagnosis was follicular eczema. The examiner stated that there is no diagnosis of skin condition based on the evidence of record while the Veteran was enlisted in military service; therefore, he concluded that the Veteran's skin condition is less likely as not caused by or a result of active military service. In January 2011, the Veteran's claims folders were referred to a VA examiner for review and opinion regarding the etiology of the claimed skin rash. The examiner confirmed a diagnosis of follicular eczema; she stated that it was not caused by or related to Gulf War exposures. The examiner stated that there is no credible medical evidence to support onset of a Gulf War exposure related skin condition years after exposure. In November 2012, the AMC requested a medical opinion. It was noted that the examiner reviewed the clinical files, the medical records and the CAPRI files. The examiner noted that there is no documentation to indicate a skin condition or treatment for a skin condition during the Veteran's active service. The examiner also noted that a diagnosis of folliculitis eczema was made in 2005; the Veteran had ultraviolet treatments from August 4, 2005 to October 13, 2005 for a total of 10 appointments. On examination in September 2008, there was a fine micropapular rash on the back (between the shoulder blades to just below the shoulder blades just over the thoracic spine), which would be less than 1 percent BSA. There was also a fine micropapular rash of the anterior chest (between the breasts) that was less than 1 percent BSA. The total BSA was less than 2 percent. The examiner stated that it was her opinion that it is less likely than not that folliculitis eczema incurred, was caused by or aggravated by the Veteran's military service in the Persian Gulf. She stated that she concurred with the 2011 examiner who reported that there is no credible medical evidence to support the onset of a Gulf War exposure related skin condition years after exposure. The examiner explained that her literature search reveals that there is no linkage of petrochemical or chemical exposure to the development of folliculitis. The examiner also noted that there was at least a 4 year span from separation to the claimed diagnosed condition. The Veteran left the military without claims of a skin condition; this extended span of time renders a less than 50 percent probability that the possible cause and symptomatology of his current skin condition was related to his Gulf tour. The examiner also explained that the Veteran's folliculitis is located on his back and chest; his skin condition is not located on the face, arms, hand and scalp. Since exposure to petrochemical or chemical are at least as likely as not to affect the exposed area of skin greater than those areas covered by clothing and protective gear, it is less likely than not that the affected areas are to direct contact with petrochemical products. The examiner stated that there is no documentation to indicate a skin condition or treatment for skin condition during active service. Therefore, the examiner stated that she was in full agreement with the 2008 and 2011 examiners; in her opinion, it is less likely than not that folliculitis eczema incurred, caused by or aggravated by the Veteran's military tour during his Persian Gulf Tour. In a VHA opinion, dated in June 2013, a dermatologist stated that she reviewed the medical information in all 3 volumes of the Veteran's claims folders; and, it was her opinion that the more recent skin problems which have been diagnosed as follicular eczema and pityrosporum folliculitis are not the same as the cystic acne which is mentioned in December 1977. The dermatologist explained that the treatments the Veteran received for the follicular eczema and Pityrosporum folliculitis are different from what would usually be used to treat acne. She added that the cystic acne in December 1977 was reported to affect the face or head; however, the latter skin conditions of follicular eczema and Pityrosporum folliculitis have affected his trunk and proximal extremities. The dermatologist further noted that post inflammatory hyperpigmentation can occur from all of these conditions, i.e. acne, eczema and folliculitis; that is, post inflammatory hyperpigmentation is not specific. III. Legal Analysis. An award of service connection is warranted for a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). For a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2013). Service connection may be granted to a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed below. The symptoms must be manifest to a degree of 10 percent or more during the presumptive periods prescribed by the Secretary or by December 31, 2011. By history, physical examination and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. Objective indications of chronic disability include both "signs" in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The signs and symptoms which may be manifestations of undiagnosed illness or a chronic multi-symptom illness include, but are not limited to: (1) fatigue, (2) signs or symptoms involving the skin, (3) headaches, (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 disturbance, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, or (13) menstrual disorders. 38 U.S.C.A. §§ 1117, 1118 (West 2002); 38 C.F.R. § 3.317 (2013). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection as due to an undiagnosed illness for his skin disorder. Significantly, the Veteran's skin disorder has been specifically attributed to variously diagnosed medical disability-namely, follicular eczema and Pityrosporum folliculitis. Because the Veteran's skin disorders have been medically associated with diagnosed disabilities, there is no evidence of record indicating the presence of a medically unexplained chronic multisymptom illness due to his Gulf War service. Thus, the Veteran's service-connection claim for a skin disorder as due to an undiagnosed illness must be denied. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Although service-connection under the provisions of 38 C.F.R. § 3.317 is not warranted in this case, the Veteran is not precluded from establishing service connection for a disease averred to be related to service, as long as there is proof of such direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Indeed, the Veteran has advanced argument to this end, which will be addressed immediately below. Turning to the elements necessary to establish service connection on a direct basis, the element of a current disability is indisputably established. In this regard, the post service treatment reflects that the Veteran has been diagnosed with follicular eczema and pityrosporium folliculitis. The preponderance of the evidence, however, shows that follicular eczema did not manifest during active service and is not etiologically related to service. As indicated, while the Veteran was noted to have been diagnosed with cystic acne in service, the June 2013 medical expert opinion found that the more recent skin problems, which have been diagnosed as follicular eczema and pityrosporum folliculitis are not the same as the cystic acne which is mentioned in the December 1977 service treatment note. Moreover, all of the evidence cited above reflects that there is no relationship between the Veteran's skin disorders and service. Again, the June 2013 VHA opinion declared that the more recent skin problems which have been diagnosed as follicular eczema and pityrosporum folliculitis are not the same as the cystic acne which is mentioned in December 1977. The dermatologist explained that the treatments the Veteran received for the follicular eczema and Pityrosporum folliculitis are different from what would usually be used to treat acne. She added that the cystic acne in December 1977 was reported to affect the face or head; however, the latter skin conditions of follicular eczema and Pityrosporum folliculitis have affected his trunk and proximal extremities. This opinion concurred with a previous VA examiner who, in November 2012, stated that that it is less likely than not that folliculitis eczema incurred, was caused by or aggravated by the Veteran's military service in the Persian Gulf. The examiner explained that her literature search reveals that there is no linkage of petrochemical or chemical exposure to the development of folliculitis. The examiner also noted that there was at least a 4 year span from separation to the claimed diagnosed condition. The Veteran left the military without claims of a skin condition; this extended span of time renders a less than 50 percent probability that the possible cause and symptomatology of his current skin condition was related to his Gulf tour. The examiner also explained that the Veteran's folliculitis is located on his back and chest; his skin condition is not located on the face, arms, hand and scalp. Since exposure to petrochemical or chemical are at least as likely as not to affect the exposed area of skin greater than those areas covered by clothing and protective gear, it is less likely than not that the affected areas are to direct contact with petrochemical products. In this case, while the Veteran is competent to testify as to his observations, statements as to a possible relationship between the Veteran's current disorder and his military service is an etiological question unlike statements as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of any currently diagnosed skin disorder. See 38 C.F.R. § 3.159(a)(1) (2013) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). In this circumstance, the Board gives more credence and weight to the medical reports rendered by medical experts than to the Veteran's lay assertions. In short, the preponderance of the evidence is against the Veteran's claim for service connection for a skin disorder, to include as due to Persian Gulf War service, and this claim must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a skin condition, to include post-inflammatory hyperpigmentation of the upper back and shoulders and folliculitis, claimed as a skin rash due to undiagnosed illness, is denied. ____________________________________________ JOHN L. PRICHARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs