Citation Nr: 1338220 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 10-07 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a skin disorder of the back and chest. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from September 1987 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied service connection for the claimed skin disorder. The Veteran appealed the denial of service connection in this decision, and the matter is now before the Board. Consideration of the Veteran's appeal has included review of all documents within the Virtual VA paperless claims processing system. The documents within the system do not include any non-duplicative materials pertinent to the present appeal other than an informal hearing presentation from the Veteran's representative which is considered to be part of the claims file, and as such have been considered as part of the present appeal. During the pendency of the appeal regarding service connection for a skin disorder affecting the back and chest, the Veteran submitted a separate claim for a separate skin disorder affecting the groin. That claim was denied in a decision of September 2009, from which the Veteran did not timely appeal. As such, the claim under consideration by the Board at this time is limited to a skin disorder affecting the back and chest. FINDING OF FACT The current skin disorder of the back and chest was not incurred in service, and is not related to service to include any in-service skin disorder. CONCLUSION OF LAW The criteria for service connection for a skin disorder of the back and chest have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. A notice letter was sent to the Veteran in June 2009, prior to the initial adjudication of the increased rating claim on appeal. Notice sent to the Veteran included descriptions of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). Here, service records have been obtained as have records of VA treatment and treatment at detention facilities operated by the state of Kentucky. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issue before the Board. In order to fulfill its duty to assist in disability compensation claims, VA must provide a medical examination and medical opinion when certain criteria are met, see McLendon v. Nicholson, 20 Vet. App. 79 (2006), - here such criteria have in fact been met. Nonetheless, the Veteran is currently incarcerated and although the duty to assist applies not less to incarcerated Veterans as it does to any other Veteran, the Veteran's incarceration does place limits on VA's ability to provide a VA examination. To that end, development documentation shows that the multiple efforts were made to coordinate with the Veteran's current detention facility to arrange for the Veteran to be transported to a VA Medical Center for examination by a dermatologist. See Report of General Information, April 2012. In the alternative, efforts were also made to allow for a VA examiner to examination the Veteran at the detention facility or to have the facility's doctor examination the Veteran in accordance with VA practices of examinations. All of VA's efforts were unsuccessful and VA was informed that the requests could not be fulfilled without violating the facility's policies. Because of the Veteran's incarcerated status, the typical procedures for scheduling an examination have proven to be unsuccessful, as have additional efforts which are beyond the typical scope of VA examination procedures. VA has an obligation to incarcerated veterans to "tailor . . . assistance to the peculiar circumstances of confinement," as incarcerated veterans are "entitled to the same care and consideration given to their fellow veterans." Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (citing Wood v. Derwinski, 1 Vet. App. 190 (1991)). However, "to require that VA must necessarily provide incarcerated claimants with a medical examination rather than a medical opinion is contrary to the statutory duties outlined in section 5103A (d)." Brown v. Shinseki, 2011 WL 378899 (Vet. App. Feb. 7, 2011) (unpublished). Based on its unsuccessful efforts to provide an in-person examination, VA sent the Veteran's claims file for review by a VA examiner in May 2012. The examiner reviewed the claims, considered the lay evidence presented, laid a factual foundation for all opinions expressed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2013); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). The Board finds that all necessary development has been accomplished. In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection for a Skin Disorder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The disorder at issue is an unidentified skin disorder, and the record includes no evidence of any of the diseases listed as a "chronic disease" under 38 C.F.R. § 3.309(a) affecting the back and chest. Accordingly the provisions of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that the continuity provisions of 38 C.F.R. § 3.303(b) apply only to those disease listed under 38 C.F.R. § 3.309(a)). The Veteran has suggested that the claimed disorder may have resulted from exposure to tropical environments. Certain tropical diseases listed in 38 C.F.R. § 3.309(b), may be presumed to have been incurred during service if manifested to a degree of 10 percent or more within 1 year from date of separation from service, or at a time when standard accepted treatises indicate that the incubation period commenced during such service; the resulting disorders or diseases originating because of therapy administered in connection with a tropical disease or as a preventative may also be service connected. 38 C.F.R. § 3.307(a)(4). Here again, the evidence of record does not suggest that the Veteran has any of the disease listed under 38 C.F.R. § 3.309(b). Thus the related presumptive provisions are not for application. Irrespective of service connection awarded on a presumptive basis, the award of service connection on a direct service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Lay evidence can be competent and sufficient evidence of a diagnosis 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A layperson is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). The Veteran contends that he was prescribed a topical treatment to address a skin disorder during his active military service. He also contends that the skin disorder has been "constant and bothersome" since that time. Service treatment records reveal that in June 1988 the Veteran was seen for medical treatment reporting a rash in the groin area. The diagnosis was tinea cruris. In October 1989, he complained of a rash on his back with sores. In November 1989 the Veteran reported a two year history of rash on the chest, arms, and back. The rash was said to be worse with exercise. Following evaluation, the diagnoses were cholinergic urticaria and xeroderma. On separation examination in October 1991, the Veteran's skin was "normal." Following separation in February 1992, the Veteran underwent a general VA examination in March 1992. During the examination the Veteran endorsed numerous ailments including symptomatology related to the sinuses, low back pain, and numbness in the extremities. On physical evaluation, the Veteran's skin had "good turgor and good hydration," with no other notations referable to the skin. In December 2005 the Veteran was incarcerated, and he remains incarcerated currently. During his incarceration, the Veteran has been seen for varying skin-related symptoms including in September 2007 when he reported a small rash on his left foot. The Veteran also endorsed symptoms relating to small "knot" on his back and behind his left ear, as well as right wrist pains. Nonetheless, the Veteran endorsed no other skin symptoms, and a topical hydrocortisone was prescribed to treat the left foot rash. In November 2007, the Veteran reported to sick call with a rash under his right arm. In July 2009, the Veteran endorsed a chemical burn on the sides of his neck. However, some time after VA sent him the RO decision on appeal denying his claim, the Veteran began complaining of a range of skin-related symptoms including later in July 2009 when he stated that problems with dry eyes and dry skin, along with allergies, had been occurring for "many years." Complaints referable to the chest, back, and neck continue to appear throughout the available detention facility treatment records, with differing diagnoses being suggested by healthcare providers. In May 2012, a VA examiner thoroughly reviewed the Veteran's claims file, including photographs of the Veteran's skin which were submitted as part of medical records received from detention facilities. The examiner noted the Veteran's in-service symptoms and diagnoses, as well as the fact that the Veteran's skin was described as normal on separation. The VA examiner noted that varying diagnoses had been made during the Veteran's detention, and they had been treated with varying techniques including topical antihistamines, antifungal agents, Vitamin E, aloe, and oral Benadryl. It was further noted that the Veteran's medical history was "very confusing" with numerous and "contradictory" skin diagnoses following service - and none of the post-service diagnoses matching with the in-service diagnoses. The examiner reviewed photographs of the Veteran's skin taken at a detention facility, and consulted with a VA dermatologist. It was determined that without an in-person examination, it was impossible to accurately identify the Veteran's current skin disorder based only on history and the photographs available. Thus, in light of the fact that an in-person examination could not be arranged for the reasons discussed above, the examiner opined it was "impossible to establish a relationship of the current skin condition to one of the diagnoses while in service," without resort to speculation. The Veteran is competent to report symptoms such as itching, rashes, and dry skin as these are capable of lay observation. Layno v. Brown, 6 Vet. App. 465 (1994). Thus, the Veteran's contention that he has had such symptoms continuously since service may be considered by the Board. Nonetheless, such contention is of no probative value for two reasons. Firstly, the Board finds the Veteran to be not credible in this particular contention. While he now claims that the disorder has been present since onset, at separation examination in February 1992 his skin was normal, and on a general medical VA examination in March 1992 the skin had "good turgor and good hydration." Furthermore, as that was a general examination, it is reasonable to expect that while endorsing other symptomatology, the Veteran would have also expressed some complaints referable to the skin. Furthermore, following separation from service, the Veteran made multiple claims (February 1992, June 1996, and April 2008) for various disabilities prior to claiming entitlement to service connection for a skin disorder in May 2009. The Veteran has indicated that he "did not know that the disease in question was a claimable disease" until reviewing the U.S. Code in 2009. The Board finds it incredible that the Veteran would claim entitlement to service connection for disorders ranging from loss of sense of smell to tingling in the upper extremities (both previously claimed disorders), but not know to seek compensation for a chronic skin disorder. Even assuming that the disorder has been present since in-service onset, because the claimed skin disorder is not a chronic disease listed under 38 C.F.R. § 3.309(a), service connection cannot be presumptively established merely by a showing that the disorder has been chronic and continuous since service. See Walker, 708 F.3d 1331. Thus, without competent nexus evidence establishing a causal relationship between his current skin disorder and service, service connection cannot be established. And the Veteran, while competent to report on the symptoms at issue, cannot establishing the necessary medical link in this case as such a determination is well beyond the realm of lay observation. Thus, the Veteran's assertions of nexus to service are not competent and of no probative value. Based on the foregoing, the Board finds that the Veteran's current skin disorder of the back and chest was not incurred in service and is not related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a skin disorder of the back and chest is denied. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs