Citation Nr: 1335457 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 12-12 229 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a skin disorder, claimed as residual rash, back, chest, and arms. 2. Entitlement to service connection for low back condition. REPRESENTATION Appellant represented by: Jeffrey Bunten, Attorney ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1985 to August 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In his May 2012 appeal, the Veteran requested a Board hearing at his local VA office. Subsequently, in an August 2012 letter to the RO, the Veteran withdrew his request for a hearing and asked that his case be forwarded to the Board for a decision as soon as possible. The Board has reviewed the Veteran's Virtual VA file and finds that there are no additional records contained therein which are relevant to the present claim. The issue of entitlement to service connection for a low back condition is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The most probative medical and other evidence of record indicates the Veteran's current chronic folliculitis and eczematous dermatitis are unrelated to his military service, including his episode of acute dermatitis in July 1986. CONCLUSION OF LAW The criteria for service connection for a skin disorder have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, certainly not in exhaustive detail, each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 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, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, if notice was not provided prior to initially adjudicating the claim, or if provided, was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is preserved, so not frustrated, in that the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. Moreover, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing error, but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, a VCAA notice requirement was initially sent to the Veteran in a February 2011 letter. This VCAA letter informed the Veteran of what evidence was required to substantiate the claim, and of his and VA's respective duties in obtaining evidence. He has received all required notice concerning his claim, and it has been reconsidered since providing all required notice. VA also has a duty to assist the Veteran in the development of his claim. This duty includes assisting the Veteran in the procurement of his service treatment records (STRs) and pertinent post-service treatment records (VA and private), and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claims file contains STRs, VA medical evidence, and lay statements. Significantly, 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. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Furthermore, the Veteran was provided a VA skin examination in March 2011. The examination report reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board, therefore, concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Thus, the duties to notify and assist have been met. II. Background On his March 1985 entrance examination and report of medical history, no skin conditions were noted. During service in July 1986, he reported a rash on his arms, stomach, and back. The examiner noted that there were red macular patches on the Veteran's chest, arms, and back. The Veteran remembered wearing a woolen fire watch shirt previously. The impression was contact dermatitis. His separation examination report dated in August 1989 listed his evaluation of the skin as normal. Records from the St. Louis VAMC show that the Veteran visited the clinic 3 times: in December 2010, January 2011, and February 2011. In February 2011, VA received the Veteran's claim of entitlement to service connection for a skin disorder. The Veteran wrote that he was assigned deck duties on his ship which required him to come into contact with paints and other chemicals, as well as refueling maintenance. In a February 2011 statement, the Veteran stated that during his active duty, he was assigned to the deck department, which was a general maintenance job. This required him to paint the ship, which exposed him to chemicals. The Veteran stated that he operated a small boat in the Persian Gulf in 1988, and that the ocean water was black, as well as the salt water of the Atlantic Ocean, and in tropical island areas. Additionally, the Veteran stated that he was rig-captain on the underway refueling maintenance and exposed to gas and oil. He would sleep near solar and sonar equipment, nuclear radiation areas, and on the deck which was covered with non-slip black tar. The Veteran stated that being exposed to these things caused the rashes on his body and face. He wrote that before enlisting, he never had any skin issues, or any family history of skin issues. During his active duty, the Veteran slowly began to notice the skin issues, such as very small spots, on his back, chest, and arms. Other shipmates reportedly pointed this out as well. The Veteran stated that only in the past 10-15 years have his skin rashes become a great problem and more visible. In March 2011, the Veteran submitted a statement from G.M.B., a fellow service member who served on the same ship as him. G.M.B. stated that even though he and the Veteran were in different departments, their paths crossed several times a day. G.M.B. stated that the Veteran "worked closely with all types of chemicals during the course of the day. Chemicals such as paints, thinners, fuels oils, and halon agents." In March 2011, the Veteran underwent a VA skin examination. The VA examiner "comprehensively" reviewed the Veteran's claims file, noting the in-service skin treatment and the Veteran's MOS as a boatswain's mate. The VA examiner diagnosed the Veteran with chronic folliculitis and eczematous dermatitis on various parts of his body. The examiner concluded that it was "less likely than not that his dermatologic condition is related to his active military duty." III. Legal Criteria - Service Connection In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In order to establish service connection for a claimed disability on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A skin disorder, however, is not among the chronic disabilities listed in 38 C.F.R. § 3.309(a), and may not be established as a chronic disease diagnosed in service or on the basis of continuity of symptomatology. Id. In making all determinations, the Board must fully consider lay assertions of record. A lay person is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (A Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). IV. Analysis Medical evidence of record shows that the Veteran is currently diagnosed with chronic folliculitis and eczematous dermatitis, as shown on the March 2011 VA examination report. As indicated, there is evidence of an in-service diagnosis of contact dermatitis in July 1986. The Board notes that the remaining STRs, to include the separation exam, and report of medical history dated in August 1989, are silent for skin complaints, treatment, or diagnoses pertinent to the Veteran's skin condition. Thereafter, skin condition complaints are not shown in the record until 2009, more than two decades after service discharge. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim, just not the only or sole factor); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where the Veteran had failed to account for lengthy time period between service and initial symptoms of disability). There is also no competent evidence of a nexus between the Veteran's current skin disorder and service. The March 2011 VA examiner determined that "it is less likely than not that [the Veteran's] current condition is related to his active military duty..." The examiner comprehensively reviewed the Veteran's claims file, noting the in-service skin treatment and the Veteran's MOS as a boatswain's mate. In the VA examiner's opinion, the one isolated dermatologic treatment that the Veteran underwent in service for acute contact dermatitis is "quite different" from what the Veteran has today. The examiner dissociated the current skin disorder from active service. In arriving at the opinion that the Veteran's current skin disorder is not related to service, the VA examiner noted that after the Veteran was treated for his contact dermatitis, he was instructed to return in five days if his condition did not improve. The Veteran himself stated that he did not follow-up for any skin treatment. The VA examiner also recognized that there were no follow-up notes anywhere in the Veteran's STRs, and that the Veteran denied having had any skin problems on his report of medical history as well at his discharge from service. The Board finds the March 2011 VA opinion to be factually accurate, fully articulated; it also contains sound reasoning. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board acknowledges that the Veteran is competent to report observable symptoms of a skin disorder such as red bumps, itching, and burning of the skin. However, there is no basis for concluding that a lay person such as the Veteran would be capable of discerning whether a skin condition is related to service, in the absence of specialized training, which in this case the Veteran has not established. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra. Thus, the highly probative March 2011 VA opinion weighs heavily against the lay statements of etiology in this case. As discussed above, the Veteran has been diagnosed with chronic folliculitis and eczematous dermatitis. These disabilities are not 'chronic diseases' under 38 C.F.R. § 3.309(a). Thus considerations under 38 C.F.R § 3.303(b) are not warranted. Walker, supra. There is no competent evidence supporting the conclusion that any current skin disorder is related to service and there is highly probative evidence against such conclusion. Thus the evidence preponderates against the service connection claim for a skin disorder, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Entitlement to service connection for a skin disorder is denied. REMAND Additional development is warranted in regard to the claim for service connection for a low back condition. In a claim for service connection, VA's duty to assist the Veteran includes providing a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/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. McLendon v. Nicholson, 20 Vet. App. 79, 81(2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013). A VA examination is warranted to determine whether the Veteran has a current back disability related to service. The Veteran asserts that he has low back problems due to heavy lifting on the ship. The Veteran served as a boatswain's mate in the Navy, performing maintenance on a ship. Even though STRs show no back complaints, treatments, or diagnoses, the Veteran is competent to report on the onset and continuity of his current low back pain. See Layno, 6 Vet. App. 465, 470 (1994). Lay statements from G.M.B. corroborate the Veteran's statements that he dealt with gun mount projectiles. The Veteran has yet to receive a VA compensation examination to determine the nature and etiology of any low back disability currently shown. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran if he has received any VA or non-VA medical treatment for his low back that is not evidenced by the current record. If so, the Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. These records should then be obtained and associated with the claims folder. The Veteran should be advised that he may also submit any evidence or further argument relative to the claim at issue. 2. Then, schedule the Veteran for an appropriate VA examination to determine whether he has current low back disability related to service. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. The examiner is asked to respond to the following: a. Indicate any disability of the low back currently shown; and all pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be conducted; and b. Provide an opinion as to whether it is at least as likely as not (meaning likelihood of at least 50%) that any current low back disability is related to service. Reconcile the opinion with the Veteran's report of having lifted heavy objects on the ship in connection with his duties as a boatswain's mate. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. Then, readjudicate the service connection claim for a low back disability. If the benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. 2013). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs