Citation Nr: 1335957 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 07-25 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a skin rash, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision decided by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied service connection for a skin rash and for PTSD. In November 2009, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript from that hearing was associated with the claims file. In March 2010, the Board remanded the case to the RO via the VA Appeals Management Center (AMC), for the development of additional evidence. In a March 2011 rating decision, the AMC granted service connection for PTSD and that issue is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158-1159 (Fed. Cir. 1997) ("[b]ecause the first appeal concerned the rejection of the logically up-stream element of service-connectedness, the appeal could not concern the logically down-stream element of compensation level"). The AMC completed the requested evidentiary development on the issue of service connection for a skin rash, and returned that issue to the Board for adjudication. Additionally, in August 2011 and July 2013, the Board remanded the case to the RO via the AMC for the development of additional evidence. The case has been returned to the Board for further appellate consideration. FINDING OF FACT The preponderance of the evidence shows that the Veteran's skin rash is not related to service, including exposure to herbicides, or a service-connected disability. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a skin rash have not been met. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in July 2005, May 2010 and August 2011 letters, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, service personnel records, post service treatment records, VA examination reports and photographs. The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the CAVC held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, the Veteran testified as to the onset and nature of his skin symptoms and provided his treatment history. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran provided pertinent testimony concerning such. Thus, the Board finds that the Veteran is not prejudiced by a decision at this time and no further action pursuant to Bryant is necessary. Additionally, this case was remanded by the Board in March 2010, August 2011 and July 2013 for additional development, to include obtaining VA treatment records, providing VA examinations, obtaining a medical opinion and issuing new VCAA letters. These directives have been accomplished. See Stegall v. West, 11 Vet. App. 268 (1998). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. Therefore, he was provided with a meaningful opportunity to participate in the claims process. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection Service connection may be established 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. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307 (2013). Regulations further provide, in pertinent part, that if a veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, certain diseases, including chloracne or other acneform diseases, or porphyria cutanea tarda, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See 72 Fed. Reg. 32,395 (2007). The United States Court of Appeals for the Federal Circuit has held, however, that a claimant is not precluded from establishing service connection with proof of actual causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In addition, secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disorder, or for an increase in disability caused by a service-connected disorder. 38 C.F.R. § 3.310. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. 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 Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's service treatment records show no indication of any treatment or findings of any skin disorder as claimed. No skin-related disorder was shown at the time of the Veteran's March 1971 separation examination. Post-service private treatment records show that in February 2002, the Veteran was prescribed medication for pruritis. At the November 2009 Board hearing, the Veteran stated that he did not remember having a skin condition in service. He stated that a year after his separation from service, he experienced blisters on his waistline and on his leg. He testified that he was provided medication from a private doctor and that his skin condition had been present ever since that time. The Veteran also stated that he was exposed to Agent Orange while in service. The Veteran was afforded a VA examination in June 2010. The Veteran reported blisters along his front waistline. He stated that he eventually developed lesions on his arms, legs, lower back, head and neck. He reported seeing a private medical doctor in 1971 who found an "unidentified" mold. The examiner noted that the Veteran had seen a private medical doctor in 2002 for reported itching. The Veteran stated that he experienced a flare-up 3 or 4 years prior and that at its worst, the itching was a 8/10. It was noted that flare-ups lasted 4-5 months. Upon examination, the examiner found a small 3cm ill-defined patch with excoriations on the Veteran's right arm. It was noted that the duration of the patch was unknown. The examiner diagnosed the Veteran with nummular eczema. The examiner opined that the Veteran's present eruption was less likely than not related to his military service or exposure to Agent Orange. The Veteran underwent a VA examination in August 2011. The Veteran reported that approximately one year after separation from service, he experienced blisters below his umbilical. He reported that the rash went away after 1-2 weeks and then he did not notice another rash until 18 years ago (1993) on both thighs. It was also noted that he experienced a rash on his legs 11 years ago (2000) and then nothing for 5 years. In addition, 5 months prior to the examination, he developed patches on both his legs and arms, but did not recall the order of eruption. He stated that the rash was itchy but without pain. He denied having the rash in service, but asserted that the condition was either from Agent Orange exposure or his service-connected PTSD. Upon examination, no scarring or benign or malignant neoplasms were found. The examiner noted widespread generalized irregular shaped plaques less than a dime in size, which were scaly. Erythematous lesions were found on both arms, both lower lefts and thighs, the Veteran's lower back, anterior upper chest, and abdomen. The examiner also found a few lesions to dorsum on his hands and feet. The examiner opined that the Veteran's skin condition, nummular dermatitis, was not related to service. VA treatment records show that in January 2012, the Veteran suffered from an acute rash with blisters and/or intense redness. In June 2012, the Veteran was treated for a rash on his torso, legs, elbows and knees. VA treatment notes dated in January 2013 reflect that the Veteran's rash remained improved. An addendum to the August 2011 VA examination was obtained in August 2013. The examiner reviewed the claims file and found that the Veteran's skin condition was less likely than not incurred in or caused by the claimed in service event. The rationale provided noted that according to Weston & Howe's 2013 overview of dermatitis, "nummular dermatitis is common in dermatolgic practices, although the cause remains unknown. Many literature suggest possible triggers such as environmental allergies, insect bite or administration of interferon or ribavirin." The examiner continued to state that there is no link between nummular dermatitis and chemicals contaminated in agent orange such as tetrachlorodibenzodioxin and dichlorophenoxyacetic acid. The examiner also noted the Veteran's condition is less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner noted that the Veteran takes medication for his PTSD. The examiner stated that the medications do not have nummular dermatitis as a possible side effect, therefore, his skin condition was not aggravated by his service-connected PTSD. In addition, it was noted that PTSD, anxiety and stress are psychological disorders while nummular dermatitis is a dermatological disease. The examiner stated that there is no sound medical literature to support direct correlation. Further, the examiner stated that nummular dermatitis' potential triggers do not include psychological condition such as PTSD, stress or anxiety. The examiner reported that the Veteran's current condition was not caused by or aggravated by the Veteran's service-connected PTSD. The rationale provided was that since neither PTSD nor its medication affects nummular dermatitis, it is highly unlikely that it can potentially affect the normal progression neither temporary nor permanently. Upon review of the record, the Board finds that service connection is not warranted for the Veteran's skin disability. At the outset, although the Veteran did serve in Vietnam and is presumed to have been exposed to herbicides (Agent Orange) during service, he has not been diagnosed with any skin condition listed under 38 C.F.R. § 3.309(e). Therefore, as the Veteran has not been diagnosed with any of the conditions listed under 38 C.F.R. § 3.309(e), his skin condition does not qualify for service connection on a presumptive basis. Concerning the remaining theories of entitlement, the Board specifically acknowledges its consideration of the lay statements and hearing testimony when adjudicating the Veteran's claim. While the Veteran argues that his current skin disability is due to Agent Orange exposure or his service connected PTSD, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, while the presence of a skin rash is capable of lay observation, determining the diagnosis and etiology of such requires medical expertise. Accordingly, the Veteran's lay opinion as to the diagnosis or etiology of his skin disability is not competent medical evidence. With regard to the question of service connection on a direct basis, the Board notes the Veteran's service treatment records are silent as to any complaints or treatment for a skin condition, and the Veteran has reported that the he recalls the skin rash beginning after discharge from service. Although the record establishes that the Veteran suffers from a current skin condition, there is no medical opinion of record linking his current skin condition to service. In this regard, the August 2011 and 2013 VA examiner opined that Veteran's skin disability was not a related to his military service. The examiner referenced relevant medical literature when opining that there was no evidence to suggest a relationship between the Veteran's skin condition and service, to include his herbicide exposure. In rendering the opinion, the examiner considered the Veteran's reported history, the records in the claims file, and the examination findings, and an adequate rationale was provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Thus, this opinion is highly probative. There is no medical opinion to the contrary. The Board affords the VA examiner's opinion significantly more weight than the Veteran's lay assertion concerning the etiology of his skin condition. In sum, the preponderance of the probative evidence of record demonstrates that the Veteran's skin rash did not manifest during service, nor is it directly related to service, to include as a result of herbicide exposure. With regard to the Veteran's contention that his skin rash is attributable to his service-connected PTSD, the Board finds that the August 2011 and 2013 VA examiner did not find that his skin rash was due to or aggravated by his PTSD. The VA examiner interviewed and examined the Veteran, reviewed the claims file and provided adequate reasons and bases for the opinion. Accordingly, the VA examiner's opinion is afforded significantly greater probative weight than the Veteran's lay assertion. The record contains no medical opinion to the contrary. Accordingly, service connection for the Veteran's skin rash on a secondary basis is not warranted. See 38 C.F.R. § 3.310 (2013). In summary, the preponderance of the probative evidence is against the claim for service connection for a skin rash on a presumptive basis as due to herbicide exposure, on a direct basis, and on a secondary basis. Thus, service connection for a skin disability is denied. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F. 3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for a skin disability is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs