Citation Nr: 1340550 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 10-18 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a concentration disorder, to include as due to an undiagnosed illness. 2. Entitlement to service connection for joint pain in the legs and feet, to include as due to an undiagnosed illness. 3. Entitlement to service connection for a rash, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from August 1982 to August 1985 and March 1988 to March 1992. He had service in the Southwest Asia theater of operations. These matters come before the Board of Veterans' Appeals (Board) on appeal from July and November 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In October 2010, the Veteran's claims file was transferred to the RO in Winston-Salem, North Carolina. In a June 2011 rating decision, the Winston-Salem RO granted service connection for benign familial tremor due to undiagnosed illness. As this is a full grant of the benefit on appeal, this issue is not before the Board. The issues of entitlement to service connection for a concentration disorder and joint pain in the legs and feet, to include as due to an undiagnosed illness, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Symptoms of a skin disorder did not become manifest during service or to a compensable degree since service, and the Veteran does not have a current skin disorder. CONCLUSION OF LAW The criteria for service connection for a skin disorder have not been met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317, 4.118, Diagnostic Code 7806 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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, 5126 (West 2002 & Supp. 2012) 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) (2013). 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, 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). In a pre-adjudication letter dated in April 2009, the RO notified the Veteran of the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). This letter also informed him of the types of evidence that would be considered to substantiate his claims and the information and evidence needed to sustain a claim for service connection. In addition, the letter met the notice requirements set out in Dingess. Neither the Veteran nor his representative has alleged that notice has been less than adequate. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). Further, the Board finds that the notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claim. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. 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, whether or not 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). Post-service medical records have been associated with the claims file. The Veteran was provided with a VA examination in July 2009 in order to determine whether he has a current skin rash that meets the criteria for entitlement to service connection for an undiagnosed illness, or has a diagnosed skin disorder related to service. The Board finds that the VA examination is adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because the report describes the disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Service Connection-Laws and Regulations 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, 1131; 38 C.F.R. § 3.303(a). A current disability must be present for a valid service connection claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (complaints of pain alone do not meet the current disability threshold); Evans v. West, 12 Vet. App. 22, 31-32 (1998). More recently, the Court has held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007). A Persian Gulf Veteran is defined as a Veteran who served on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War. See 38 U.S.C.A. § 1117(f) (West 2002); 38 C.F.R. § 3.317(d) (2013). Service personnel records reflect that the Veteran had active service in Iraq from January 14, 1991 to July 26, 1991. A "qualifying chronic disability" includes (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. See 38 C.F.R. § 3.317(a)(2); see also 75 Fed. Reg. 61995-97 (2010). Under 38 U.S.C.A. § 1117(a)(1), compensation is warranted for a Persian Gulf Veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. Effective December 29, 2011, VA extended the presumptive period in 38 C.F.R. § 3.317(a)(1)(i) through December 31, 2016 (for qualifying chronic disabilities that become manifest to a degree of 10 percent or more after active duty in the Southwest Asia theater of operations). See 76 Fed. Reg. 81834-81836 (December 29, 2011). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a),(b). The term "objective indications of a qualifying chronic disability" include both "signs," in a medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. See 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or a chronic multi-symptom illness include the following: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. See 38 U.S.C.A. § 1117(g). Service connection may also be granted for a disease first diagnosed after discharge when all of 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 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Skin Rash The Veteran has contended that he has had unexplained skin rashes that he believes are related to exposure to chromium bromide in service. See VA examination report, July 2009; Notice of Disagreement, November 2009. The Veteran was provided with a VA examination in July 2009. He reported that he had a skin rash on legs that began in 1996, that started on the inside of his thighs and later involved the outside of his thighs. The rash was red and smaller in size than a computer mouse. The Veteran indicated that the rash went away and he had no recurrence since 2001, and that, when it was in existence, it was not related to the seasons. Upon examination, the Veteran had no rash. VA medical records do not reflect any treatment for or diagnosis of a skin disorder. The Board finds that, based on the evidence of record, entitlement to service connection is not warranted for a skin disorder, as due to an undiagnosed illness. The evidence fails to show that the Veteran has had a diagnosed skin disorder or a chronic undiagnosed skin disorder that met the criteria for a compensable disability rating at any time since his discharge from service. The Veteran has asserted that he began having a rash on his legs in 1996. There are no medical records reflecting treatment for the Veteran's skin disorder while it was present from 1996 to 2001; however, the Veteran provided a description of the rash as it existed during that time. In order to determine whether the Veteran's left shin skin disorder has been 10 percent disabling for any six month period since service, the Board looks to the schedule of ratings. Disorders of the skin are rated according to the Diagnostic Codes (DCs) under 38 C.F.R. § 4.118. The Board has considered all potentially applicable DCs and finds that, based upon the Veteran's description of his skin disability, the evidence of record does not show that the Veteran's claimed skin disorder has been 10 percent disabling at any time. The Veteran has not alleged that the skin condition is painful; the lay and medical evidence shows no complaints or findings suggesting the skin disorder is productive of any symptomatology or impairment. With regard to Diagnostic Code 7806 for dermatitis or eczema, a 10 percent rating requires evidence to show that at least 5 percent, but less than 20 percent of the entire body, or at least 5 percent but less than 20 percent of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immuno-suppressive drugs required for a total duration of less than six weeks during the past 12 month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. A review of the record reveals no evidence of systemic therapy for the skin. The Veteran indicated that he was provided with a cream for his skin during the period prior to 2001. Furthermore, based on the Veteran's description that it covered an area smaller in size than a computer mouse, the evidence does not suggest that the area affected by the claimed disability amounted to 5 percent of the entire body or 5 percent of the exposed areas affected. The Board has also considered whether the Veteran's claimed disorder may be 10 percent disabling under any other Diagnostic Codes, but finds that none of the applicable criteria had been met. Specifically, no evidence of record indicates that the claimed skin condition represent, or is analogous to, burn scars (Diagnostic Codes 7800-7802). The evidence of record also does not show that the skin disorder is similar to any of the diseases or disorders in Diagnostic Codes 7807 through 7833. 38 C.F.R. § 4.118. The weight of the competent evidence shows no objective indications of a qualifying disability manifested to a compensable degree for any six-month period since service. The Board finds that a qualifying chronic disability of the skin did not manifest during service or to a compensable (10 percent) degree since service. Thus, service connection cannot be granted on a presumptive basis. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. The Board notes that the medical evidence of record does not reflect a diagnosis of a skin disorder. At the February 2009 VA examination, there was no active skin disorder and, therefore, the examiner did not provide a diagnosis. The Veteran reported that he has not had any skin problems since 2001, and he did not report any diagnosis of a skin disorder provided in the time period prior to 2001. Without a diagnosis of a skin disorder, service connection cannot be granted on a direct basis. Brammer, 38 C.F.R. § 3.303. As the preponderance of evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107. ORDER Service connection for a rash, to include as due to an undiagnosed illness, is denied. REMAND The Veteran has contended that, as a result of his service in the Southwest Asia theater of operations, he has had ongoing problems with concentration. A February 2008 VA medical record shows that the Veteran reported that he could not complete required courses for his studies, and was working with VA Vocational Rehabilitation, in order to find another course of study. At his July 2009 VA examination, the Veteran indicated that he had failed most of the courses he was taking at technical college. In light of above, the Board concludes that an attempt should be made to obtain the Veteran's vocational rehabilitation file, as the records contained therein may be useful to the Board in adjudicating the Veteran's claim. The Board is on notice of the existence of those records and is obliged to obtain and consider them. See Moore v. Gober, 10 Vet. App. 436 (1997). The Veteran has contended that he has pain in the joints in his legs and feet that has been ongoing since service. The Board notes that the Veteran has been granted service connection for patellofemoral syndrome of both knees. He was provided with a VA examination in July 2009 in order to determine whether he had an undiagnosed disorder, manifested by pain in his lower extremities, or had a diagnosed disorder in his lower extremities due to his time on active duty. The Veteran reported that he had constant aching in both ankles that had been present since his first tour of duty. The examiner diagnosed bilateral pes planus, and noted that his symptoms were of known diseases or are common symptoms found in a normal population without any significant underlying disease. The Board finds that an addendum is necessary for clarification, in order to obtain an opinion as to whether the Veteran has any other disorder in his ankles or feet, and whether his ongoing pain is related to a diagnosis, including pes planus and, if so, whether pes planus is related to his active duty. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate repository and attempt to obtain all vocational rehabilitation records, if any, for the Veteran. Associate all received records, if any, with the claims file. All efforts to obtain such records should be documented in the claims folder, and if no such records exist, such should be noted in writing in the record 2. The Veteran should be afforded a VA examination to determine whether he has a current disability of the ankle and feet that is related to service. The claims file must be made available to and reviewed by the examiner. All appropriate testing should be performed. (a) Based on an examination of the Veteran's ankles and feet, review of the claims file, and history provided by the Veteran, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's symptoms in his lower extremities (ankles and feet) are attributable to a known underlying clinical diagnosis, to include pes planus. (b) If his complaints of symptoms in his ankles and feet are attributable to a known clinical diagnosis, opine as to whether it is at least as likely as not (50 percent or greater probability) that the disorder had its onset during his service or is otherwise related or attributable to any event or incident of his service. (c) If his complaints of symptoms in his ankles and feet are not attributable to a known diagnosis, specify whether he has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, which have either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. The examiner must provide a rationale for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 3. Then, readjudicate the issues remaining on appeal. If any benefit on appeal remains denied, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. 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 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). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs