Citation Nr: 1338663 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 11-02 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a skin rash, to include dermatophytosis. ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from January 1991 to July 1991. The Veteran also served had a period of service of unverified type from January 1982 to May 1982. The Veteran served in the National Guard prior to and following his period of active service. This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Veteran requested a hearing before the Board in his January 2011 substantive appeal, but withdrew the request in a letter dated March 30, 2012. FINDINGS OF FACT 1. The medical evidence establishes that the Veteran did not manifest a chronic skin disorder during his active service in 1991, and that no skin disorder was manifested on a chronic or intermittent basis during the period from 1998 through 2005, and that a skin rash on the left hand treated prior to May 2009 resolved. 2. The Veteran has not manifested a skin disorder for which a medical diagnosis has been assigned during the pendency of this claim, and, since skin disorders treated through the years since the Veteran's 1991 active service have resolved, no presumption of service connection is applicable. CONCLUSION OF LAW The criteria for entitlement to service connection for a skin disorder, to include dermatophytosis, have not been met. 38 U.S.C.A. §§ 1110, 1116, 1117, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.306, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist Upon VA's receipt of a claim for veterans' benefits, the Veterans Claims Assistance of Act of 2000 (VCAA) imposes on VA: (1) a duty to notify and (2) a duty to assist. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013). As discussed below, VA complied with both these duties. The duty to notify requires VA to notify claimants of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) the VA will seek to provide; and (3) the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (citing 38 U.S.C.A. § 5103(a)); 38 C.F.R. § 3.159(b)(1). VA must also notify a claimant that a disability rating and an effective date for the award for benefits will be assigned if service connection is awarded. Id. Notice must be provided before an initial unfavorable decision on a claim by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Here, VA fulfilled its duty to notify by the sending the Veteran a letter, dated in May 2009, before the RO adjudicated his claim, that notified him of the information detailed above, including information regarding the criteria for assigning a disability rating and an effective date for the award of benefits if service connection were awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In any event, the Veteran has not alleged any prejudice regarding VA's duty to notify, and the Board finds none. See Shinseki v. Sanders, 556 U.S. 396 (2009) (stating that the burden of showing harmful error rests with the party raising the issue). VA associated with the claims file the Veteran's service treatment records (STRs) for his period of active service in 1991, STRs related to the Veteran's unverified service in 1981, as well as records of reserve service treatment through 2008. VA treatment records dated in 2010, and the reports of VA examinations conducted in 2009, are of record. The Veteran submitted private medical statements, and has not identified additional private clinical records which might be available. The veteran was afforded VA skin examinations in July 2009 and in December 2009. The reports show that the examiners reviewed the claims file, medical records, and interviewed the Veteran in conjunction with the examinations. Moreover, the Veteran's subjective complaints were recorded in the reports. These examinations are adequate as a basis to adjudicate the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once the VA undertakes an effort to provide an examination to develop a claim, even if not statutorily obligated to do so, the VA must ensure the examination provided is adequate). The Veteran has not identified any additional evidence. The record does not indicate that there is any additional pertinent evidence that is necessary to fairly adjudicate the claim. Appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Merits of the Claim The Veteran seeks service connection for a skin rash that he contends is due to his service in Saudi Arabia in 1991. The service treatment records dated in 1991 reflect that the Veteran was treated for pain in both heels, but do not disclose complaints of a skin disorder of the body or of the feet or treatment for a skin disorder. In a June 1991 history completed by the Veteran, he reported that he did not have any rash, skin infection, or sores. Reserve treatment records dated through 2005 disclose that the Veteran suffered an insect bite in April 1998. He was treated for a small skin abscess on his left thigh. Medical examinations conducted in 1996, 2001, and 2005 for purposes of reserve retention disclose no findings of a skin disorder. An undated private medical statement submitted by the Veteran in 2009, signed by JSR, MD, stated that the Veteran was under treatment for a persistent rash on the left hand that was unresponsive to steroid therapy. Another private treatment record, dated in February 2008, indicates that the Veteran has a rash on his skin. The Veteran underwent a VA skin examination in July 2009. The Veteran informed the examiner that he had skin rash in his left hand and left thigh since 1991. He reported that this rash would come and go, about every two months, worsening upon sun exposure and humidity. The rash would improve with use of topical skin cream. The last exacerbation was in May 2009 and his last skin medication use was in 2002. Regarding the skin condition, the examiner stated that the Veteran described skin erythema with an elevated border. The course of the condition was identified as intermittent with no systemic symptoms. On physical examination, the examiner noted that the Veteran's skin condition affected less than 5 percent of the exposed areas (head, face, neck, and hands) and less than 5 percent of the total body area. The examiner diagnosed the condition as "dermatophytosis: healed at this time." For purposes of information only, the Board notes that a dermatophyte is a fungus that causes superficial infection of the hair, skin or nails, and a dermatophytosis is the fungal infection of the hair, skin, or nails resulting from dermatophyte infection. Stedman's Medical Dictionary 484 (27th ed. 2000). Because the examiner who conducted the July 2009 VA examination could find no signs or symptoms of a skin disorder, the Veteran was afforded another skin examination. The Veteran underwent a second examination of his skin in December 2009. On physical examination, the examiner found no skin rash present. He stated that, under those circumstances, he would have to resort to mere speculation to issue an opinion as to whether the Veteran's skin condition was related to military service. February 2010 and June 2010 VA outpatient evaluations disclose that the Veteran's skin was clear, with no lesions. In July 2010, the Veteran complained of itching on the palms of both hands that he noticed two months prior and seemed to be getting worse. The provider stated that there was a cord-like induration in the webbing between the first and second digits bilaterally. Induration is defined as hardening of a soft tissue. Stedman's Medical Dictionary 893 (27th ed. 2000). In November 2010, the provider found no skin lesions, and the Veteran had no complaints of a skin disorder. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Generally, "[t]o 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, no skin disorder was diagnosed at the time of either VA examination in 2009, and no skin disorder was present at the time of the most recent VA outpatient treatment evaluation in November 2010. The claims file and electronic file disclose no allegation by the Veteran that he has experienced a skin disorder since November 2010. Although the Veteran had some induration in the hands bilaterally in July 2010, induration was not again noted or treated after July 2010, and the Veteran has not alleged that that induration has recurred. In the absence of proof of a present skin disorder, VA is not authorized to grant service connection for a skin disorder. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Nevertheless, the Veteran did note in a 2011 substantive appeal that he wished to continue his appeal for service connection for a dermatophytosis. The Veteran alleges that he has a skin disorder, and a lay person is competent to observe skin symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (finding Veteran competent to describe dry, itchy, scaling skin); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed). Therefore, the Board will consider whether the evidence supports the claim for service connection for a skin disorder under any theory of entitlement or during any portion of the pendency of the appeal. The records of the Veteran's 1991 active service show no diagnosis of a skin disorder or injury to the skin. Thus, the evidence is unfavorable to a finding that a skin disorder was manifested during the Veteran's service. There is no diagnosis of a skin disorder prior to the Veteran's 1991 induction into active service, and no diagnosis of a skin disorder at separation, so the record does not raise a possibility that a skin disorder was aggravated during the Veteran's active service. See 1981 to 1989 reserve service records. Although insect bites and a skin abscess were treated during the Veteran's reserve service in 1998, there is no record of continued treatment or residuals of the insect bites or skin abscess after 1998. JSR, MD stated that the Veteran had a persistent rash on the left hand at some time prior to May 2009 that was unresponsive to "steroid therapy." However, the examiners who conducted VA examinations in 2009 and the providers who conducted outpatient evaluations of the Veteran's skin in 2010 found no recurrent, intermittent, acute, or other skin symptoms or a skin rash on the left hand, except, as noted, in July 2010. There is no evidence that the Veteran was prescribed any type of steroid therapy for induration noted in July 2010, although a consultation with a specialist was recommended. However, induration was not again noted, and there is no indication that a specialty consultation was conducted. There is no evidence that a skin disorder was treated following the Veteran's service discharge in 1991 until 1998. The preponderance of the medical evidence from 1998 to the present establishes that the Veteran has not manifested continuous or intermittent symptoms of a skin disorder that has been present since his active service in 1991. Although the private medical statement submitted in 2009 indicated that a skin rash was under treatment, that statement did not indicate that the skin rash had been present since the Veteran's active service. The examiners who conducted VA examinations in 2009 determined that, since no skin disorder was found, it would require speculation to state that the Veteran has a skin disorder associated with his service. The evidence that no skin disorder was present in 2009 and no continuing skin disorder was manifested in 2010 demonstrates that no skin disorder has been chronic, either continuously or intermittently, since the Veteran's 1991 active service. The Board further notes that no presumption that the Veteran has a chronic skin disorder or that the Veteran has an undiagnosed or qualifying multisymptom disorder is applicable in this case. The Court of Appeals for the Federal Circuit (Federal Circuit) has clarified the application of presumptive service connection for chronic disorder. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While service connection may be granted for certain chronic diseases when such disease is manifested to a compensable degree within one year of separation from active duty, that presumption is not applicable to a disorder other than those defined as chronic by statue or regulation. Walker, 708 F.3d at 1331 (the presumption is only available to establish service connection for the specific chronic diseases defined under VA law). Since no medical diagnosis of a current skin disorder has been assigned, no presumption that the Veteran has a skin disorder which is defined as chronic is applicable. 38 U.S.C.A. § 1101; 38 C.F.R. § 309 (listing all disorders defined as chronic). The Veteran served in served in Saudi Arabia in 1991, and he is a Persian Gulf War Veteran within the meaning of the applicable statute and regulations. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(b). Service connection may be established on the basis of a presumption for a Veteran who has a qualifying chronic disability or disability resulting from an undiagnosed illness which became manifest during active service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent within a specified period. 38 C.F.R. § 3.317(a)(1)(i). However, since there is no chronic, recurring, or intermittent skin disorder, or ongoing skin symptoms, and no provider has opined that the Veteran currently has skin symptoms which may be attributed to an undiagnosed illness or qualifying chronic disability, the competent evidence of record demonstrates that no presumption of service connection available to a Persian Gulf Veteran for a qualifying chronic disability under 38 U.S.C.A. § 1117 is applicable. The preponderance of the probative evidence shows that the Veteran did not incur or aggravate a skin disorder during his service and does not have a current skin disorder as a result of his service. Favorable private medical statements and the Veteran's lay statements that he has a current skin disorder which was manifested in service are less probative than the medical evidence that the Veteran does not have a medically-diagnosable current skin disorder. No presumption is applicable to establish service connection. In the absence of a current skin disorder, VA is not authorized to grant service connection in this case. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The claim must be denied. ORDER The appeal for service connection for a skin disorder, to include a rash or dermatophytosis, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs