Citation Nr: 1340912 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-23 362 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah THE ISSUE Entitlement to service connection for the claimed residuals of a right thigh cystectomy. REPRESENTATION Appellant represented by: Utah Division of Veterans' Affairs ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from April 1989 to December 2008. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from an April 2009 rating decision issued by the RO. The Board remanded the case for additional development in December 2012. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran is not shown to have a residual disability that can be causally linked to the right thigh cystectomy performed in service. CONCLUSION OF LAW The Veteran does not have a disability manifested by right thigh cystectomy residuals due to disease or injury were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5013, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran participated in the Benefits Delivery and Discharge (BDD) program. As part of his participation in that process, he was provided a written notice that explained the criteria necessary to establish service connection for a claimed disability and how VA assigns ratings and effective dates for service connected disabilities. The notice also informed the Veteran about the types of evidence he should identify in support of his claim and informed him that VA would make every reasonable effort to obtain any evidence that it knows about. This notice was provided prior to the issuance of the rating decision that is appealed herein. VA also must make reasonable efforts to assist the claimant with 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. In connection with the current appeal, VA has of record evidence including service treatment records, VA treatment records, and the written contentions of the Veteran. The Veteran was provided with two VA examinations of his skin. In December 2012, the Board remanded the claim to afford the Veteran another opportunity to be examined since no skin condition had been active at the time of the prior two examinations. The Veteran was scheduled for a VA examination in July 2013, but he cancelled the appointment. The RO contacted the Veteran who stated that he would not appear for a rescheduled examination. Since the Veteran has refused to undergo further examination, the Board finds that VA has taken all appropriate efforts to provide the Veteran with an adequate VA examination and further efforts in this area would be unproductive. The Board finds that the requirements of VCAA were met in this case. The Board also finds that the instructions set forth in the December 2012 remand were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board directed the RO to request that the Veteran identify any additional treatment for his claimed skin disorder. A letter was sent to the Veteran requesting this information in December 2012, but he did not respond. As noted, the Board directed that the Veteran also be afforded another VA examination. As the Veteran expressly refused further examination, the RO undertook to readjudicate the claim based on the evidence of record. The Board notes that when a Veteran fails to appear for a necessary examination in connection with an original claim for service connection, the case shall be decided based on the evidence of record. 38 C.F.R. § 3.655. Service connection The Veteran asserts that his skin disorder is the result of an right thigh cystectomy performed during service. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases may be granted if manifest to a compensable degree within one year of separation from service; however, the Veteran's claimed skin condition is not one of these chronic diseases. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Initially, the Board notes that a skin condition was not noted at the Veteran's entry into service. During service, on a few occasions, the Veteran was seen for various rashes. He reported being allergic to eggs and poultry and getting rashes if exposed to these products. In September 1996, the Veteran was noted to have been seen for a cyst on his right thigh. The cyst was subsequently removed, and there were no noted complications or residuals. At his separation examination in September 2007, the Veteran's skin was marked as being "normal." The Veteran also prepared a Report of Medical History in conjunction with that examination and denied having any skin disease or history. The Veteran was first examined by VA with respect to his cystectomy in September 2008. At that time, he reported intermittently getting a rash at the site of the ruptured cyst. There was no treatment or functional limitation. An examination of the skin showed no rashes, lesions, nodules, lumps or cysts. There was no scar. The examiner could not render a diagnosis for the Veteran's claimed condition of residuals of a cystectomy right thigh because there was no pathology noted. In September 2010 the Veteran was examined and reported having had a cyst removed from the right groin and now having mild infrequent tenderness. There was no skin breakdown or other problem or limitation of function. The examination of the skin showed no scar. There was no tenderness to palpation, limitation of motion, or other limitation of function. The examiner diagnosed epidermal cyst right groin, removed with no complications. The VA treatment records do not reflect a recurrence of the cyst. The Veteran reported having allergies to eggs and flu vaccine that would cause rashes, but he did not report actually having any rashes. On all occasions when the skin was examined, it was normal and there were no rashes or cysts. The Veteran has not submitted any written statements about his claimed residuals of a right thigh cystectomy or voiced specific contentions about the right thigh cystectomy on either his July 2009 Notice of Disagreement or his September 2010 Substantive Appeal. The only documented lay statements about the claimed residuals of the right thigh cystectomy is what the Veteran told the VA examiners in September 2008 and September 2010. The criteria for service connection are not met in this case because the evidence does not show that the Veteran has any current residuals of the right thigh cystectomy performed in service. The evidence does not show that there is any scar or skin disease of the right thigh. The Veteran's skin was examined twice by VA, and there was no visible scar or rash in connection with either. To the extent that the Veteran reports getting intermittent rashes and having tenderness in the right thigh area, he has not submitted any evidence to show that these any manifestations that are related to any procedure performed in service. Thus, without more, his lay assertions are outweighed by the medical evidence showing that there are no current residuals of the right thigh cystectomy or any current disability related to the skin of the right thigh. Absent evidence showing a current disability, service connection must be denied based on this record. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is not applicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal must be denied. ORDER Service connection for the claimed residuals of a right thigh cystectomy is denied. ____________________________________________ STEPHEN WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs