Citation Nr: 1338965 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 07-40 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a skin condition to include a rash, cysts, and boils, including as due to herbicide exposure. 2. Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder, Counel INTRODUCTION The Veteran served on active duty from November 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina (SC), which denied service connection for a skin disorder. A June 2008 rating decision denied entitlement to service connection for PTSD, The Veteran appeared at a Board hearing via video teleconference before the undersigned in August 2010. He also appeared at a formal RO hearing in March 2009. Transcripts of both hearings are contained in the claims folder. The case was remanded for further development in September 2010. In a December 2011 rating decision, the Appeals Management Center (AMC) in Washington, DC, granted service connection and assigned an initial 50-percent rating, effective in December 2007. The Veteran's representative's assertions in the October 2013 Informal Hearing Presentation raises the issue of entitlement to service connection for a heart disorder and a knee disorder as due to the service-connected PTSD. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to an initial rating higher than 50 percent for PTSD is REMANDED to the RO via the AMC, in Washington, DC. FINDINGS OF FACT 1. The AMC completed the additional development directed in the September 2010 Board remand. 2. A current skin disease or disability is not the result of a disease or injury in active service. CONCLUSION OF LAW A skin disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The 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, 5126, defined VA's duty to assist a Veteran 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, 3.326(a). The Duty to Notify Under the VCAA, 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. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 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 also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim, as was done here. Pelegrini, 18 Vet. App. 112; see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). In an August 2006 letter, issued prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection. The letter satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. The Veteran has substantiated his status as a Veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims in the August 2006 letter. The Court has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues; and, the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the Board hearing, the undersigned identified the issue before the Board, and asked questions of the Veteran that ensured his testimony addressed the potential existence of additional records and the basis of his claim. The RO transcript reflects the RO hearing official did likewise. Neither the Veteran nor his representative voiced any disagreement with the manner in which either hearing was conducted. Hence, the Board finds the Bryant notice requirements were complied with. Accordingly, no further development is required with respect to the duty to notify. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, regardless of whether the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records and VA treatment records. The Veteran reported post-service treatment at both VA and private medical facilities in the 1970s and 1980s. Both named VA facilities informed the RO that searches of their respective records repositories, to include archived files, did not reveal any records related to the Veteran. The Veteran informed the RO that the private facility informed him that any records extant were destroyed after eight years. Hence, VA expended all reasonable efforts to obtain the records identified by the Veteran. 38 C.F.R. § 159(c)(2). Neither the Veteran nor his representative asserts that there are additional records to be obtained or that further efforts should be expended to obtain records previously sought. The Veteran was afforded a VA examination, in accordance with the Board's remand instructions. See 38 C.F.R. § 159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). An examination report is adequate when it sufficiently informs the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). In the instant case, the October 2010 examination report reflects the examiner conducted a review of the claims file and the Veteran's electronic records, and took the Veteran's history. The examiner opined on the presence of current pathology and provided a rationale for the opinion. The Board finds the examination adequate for appellate review. In light of the above, there is no further notice or assistance that would be reasonably likely to substantiate the claim, and no further notice or assistance is required. 38 U.S.C.A. § 5103A. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007) (overruled on other grounds). Proof of a claim on the basis of continuity of symptomatology, however, is limited to where the claimed disability is a chronic disease listed at 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a). White v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's claim disability does not involve a chronic disease. In relevant part, 38 U.S.C.A. 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Pursuant to 38 U.S.C.A. § 1116(a), presumptive service connection is available on the basis of herbicide exposure for specified diseases manifested to a degree of 10 percent within a specified period in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. It also provides presumptive service connection on the basis of herbicide exposure for each additional disease that the Secretary determines in regulations prescribed under this section warrants a presumption of service connection by reason of having a positive association with exposure to an herbicide agent, and that becomes manifest within the period (if any) prescribed in such regulations in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis VA outpatient records dated through 2011 that are in the Veteran's Virtual file were reviewed and considered by the AMC, as noted in the December 2011 Supplemental Statement of the Case (SSOC). Hence, the Board may consider those records without the necessity of a waiver from the Veteran or a remand for RO consideration. See 38 C.F.R. § 20.1304; see also Disabled American Veterans, et al v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Veteran contends that he has current cysts or a skin rash related to active military service, to include exposure to herbicides during active duty in Vietnam. In his claim for service connection he reported that he had experienced problems with cysts since his return from Vietnam. More recently, he has stated that the cysts developed around 1971, during his active military service. Personnel records confirm his service in Vietnam from May 1970 to June 1971. He reports that the cysts occur in various parts of his body, including his head and buttocks, and that they are very painful and infected. He also says he underwent an operation in 1982 to remove a cyst from his buttocks, but it came back; and, that he was treated for cysts around 1989, at the East Orange, New Jersey VA Medical Center and the VA Medical Center in Washington, DC. As noted earlier, however, both facilities have indicated that they do not have medical records related to the Veteran. The Veteran claims that he currently treats the condition with ointments, but it never goes away. Service treatment records are negative for any complaints, treatment or diagnoses for cysts or skin rashes, and these conditions were not reported at the time of the Veteran's discharge examination. The examination report reflects the Veteran's skin was assessed as normal. Outpatient treatment records from the VA Medical Center in Columbia, SC, show that in July 2002, his primary medical history included skin cysts. During an examination in September 2002, he complained of having a cyst in the buttock area that drained constantly and had been present for over 20 years, and that had been excised in the early 1980s but had reoccurred. He was noted at that time to have a history of sebaceous cysts. On physical examination, the Veteran was noted to have a lipoma measuring 1.2 x 1.3cm, which had been present since 1986, was unchanged, nontender and freely moveable. He was also noted in September 2002 to have a history of sebaceous cysts and probably healed fistulae of the buttock. September 2008 treatment records indicate that he had a recurring rash and cysts on the buttocks. On physical examination in September 2008, he was noted to have a 2 cm. cyst on the left orbital margin, present for years, and assessed with recurrent folliculitis of the gluteal region and prescribed Bactrian as needed. In November 2008, the Veteran requested an appointment for a cyst problem and swelling, and in December 2008, he complained of bumps on the left hand and his buttocks swelling up again. Treatment notes from June 2009 show that the Veteran was noted to have recurrent, perianal boils, which swelled, drained and were painful, and that he was prescribed Bactrian cream. He was again noted to have recurrent, perianal boils as recently as January 2010. In accordance with the Board remand, the Veteran was afforded a VA examination in October 2010. The examiner noted a review of the claims file, to include the Board remand. The examiner also noted the absence of any notation of treatment in the service treatment records for a skin condition, to include the type the Veteran described. At the examination, the Veteran reported a skin condition that involved both hips and occasionally extended to the groin. He described it as bump-like; the bumps were "constantly there and draining." He reported further that the condition was painful and pruritic, and dated it back to his time in Vietnam. The Veteran denied any other type skin conditions as well as use of any systemic or topical corticosteroids, immunosuppressant, or light therapy. He described his current treatment as Mupirocin cream 2%, which he used twice daily; and, he denied any impact on his activities of daily living as a result of his claimed skin disorder. Physical examination of the Veteran's hips revealed no evidence of a current skin condition. The examiner also noted that when the Veteran referred to his hips, it actually appeared he was in fact describing a skin condition within the perianal region. Examination revealed a firmness and induration along the left perirectal region. Parenthetically, induration refers to hardness. Dorland's Illustrated Medical Dictionary, p. 926, 30th Edition (2003). No active skin lesions were present in that region. Examination of the groin demonstrated no evidence of an active skin condition. A cyst was noted above the left eyebrow, which the examiner noted had been noted at past examinations. The examiner noted it was stable. The diagnosis was no objective evidence of an active skin condition. The examiner noted; however, that the firmness and induration along the left perirectal region was suggestive of prior perirectal abscesses or boils. The Board remand sought a medical opinion on whether there was at least a 50-percent probability that any skin disorder identified since 2006 had its onset during the Veteran's active service; or, was otherwise related to active service, to include as a result of herbicide exposure. The examiner opined the Veteran did not have a skin condition that met either criterion. The examiner's rationale was that no evidence of treatment was noted in the service treatment records; and, there is no scientific evidence to suggest the residual from prior perirectal abscesses or boils is related to prior herbicide exposure, including the fact the Veteran's skin condition is not among the skin conditions deemed associated with herbicide exposure. The Board may infer the examiner aware of applicable medical literature. See Monzingo, 26 Vet. App. at 106-07. The evidence of record shows the Veteran has not had a current skin condition that manifests as a rash at any time since his current claim. In addition to the negative findings on clinical examination, the Veteran's VA outpatient records consistently note his skin as negative for a rash. He has not clearly reported such symptoms currently. Thus, the remaining issue is-apart from herbicide exposure, whether the evidence is at least in equipoise as to whether the Veteran's perirectal abscess residual is causally related to the Veteran's active service. The Veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Further, the Board acknowledges the Veteran's lay testimony of in-service occurrence may not be rejected solely because of the absence of contemporaneous medical documentation. See Barr, 21 Vet. App. at 310. (Emphasis added). The Board also acknowledges that, while the Veteran's skin disorder is not a listed chronic disease, see 38 C.F.R. § 3.309(a). Hence a nexus could not be established on the basis of a continuity of symptomatology. Walker. Moreover, other evidence contradicts the recent reports of continuity. His service treatment records note treatment for complaints or symptoms related to maladies other than the skin. It is not apparent why, if skin conditions were present, they also would not have been noted. As earlier noted, his skin was actually assessed as normal at his June 1971 examination at separation from active service. And there also is the fact that two separate VA medical facilities have no record of having treated the Veteran for skin-related complaints in the 1970s or 1980s as he claims. The Veteran is presumed to have been exposed to herbicides based on his service in Vietnam from May 1970 to June 1971. 38 U.S.C.A. § 1116(f). The claimed skin conditions are not; however, among those recognized as being presumptively due to such exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). In consideration of all of the above, the Board is constrained to find incredible, the Veteran's assertions of in-service occurrence or incurrence shortly after his separation from active service. Thus, the Board finds the preponderance of the evidence is against the claim on a presumptive and direct basis. 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(a), (e). In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for a skin condition to include a rash, cysts, and boils, including as due to herbicide exposure, is denied. REMAND In February 2012, the Veteran expressed disagreement with the initial rating for PTSD. There is no indication in the paper or Virtual claims file that an SOC has been issued. Once a Notice of Disagreement is received, the appeal process has started, and an appellant is entitled to an SOC. See 38 C.F.R. §§ 19.26, 19.29, 19.30, 20.200, 20.201; see also Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: The AMC/RO shall issue a SOC with regard to entitlement to an initial rating higher than 50 percent for PTSD. This issue should not be certified to the Board unless the Veteran submits a sufficient substantive appeal. 38 U.S.C.A. § 7104 (West 2002). The Veteran 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. 2012). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs