Citation Nr: 1341902 Decision Date: 12/18/13 Archive Date: 12/31/13 DOCKET NO. 07-11 846 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for skin disease. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from January 2000 to July 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2006 of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2008, the Veteran appeared at a hearing before a Decision Review Officer. A copy of the transcript is in the Veteran's file. In July 2010, November 2012, and May 2013, the Board remanded the claim. FINDING OF FACT The current skin disease, seborrheic or psoriasiform dermatitis, was not affirmatively shown to have been present in service, and the current skin disease, seborrheic or psoriasiform dermatitis, first diagnosed after service is unrelated to contact dermatitis in service or otherwise related to an injury or disease or other event in service. CONCLUSION OF LAW The criteria for service connection for a skin disease, seborrheic or psoriasiform dermatitis, is not met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in May 2006. The Veteran was notified of the evidence needed to substantiate a claim of service connection, namely, evidence of current disability; evidence of an injury or disease in service or an event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. The Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies and that she could submit other records not in the custody of a Federal agency, such as private medical records, or with her authorization VA would obtain any non-Federal records on her behalf. The VCAA notice included the general provisions for the effective date of a claim and for the degree of disability assignable. As for the content and timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. VA has obtained service treatment record, and VA and private medical records. In the remand in May 2013, the Veteran was asked either to submit or to authorization VA to obtain on her behalf private medical records of Dr. K.B, but she did not respond. Accordingly, VA is under no further obligation to assist the Veteran with respect to obtaining the private medical records requested. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not a one-way street. If a veteran wishes help, the veteran cannot passively wait for it in those circumstances where the veteran may or should have information that is essential in obtaining the putative evidence."). The Veteran was afforded VA examinations in September 2010, in January 2013, and in August 2013. Of the VA examinations, the VA examination in August 2013 provides the most persuasive medical evidence on material issues of fact, namely, evidence of a present disability and a causal relationship between the present disability and an injury or disease or event in service. As the VA examiner reviewed the Veteran's history, identified the present disability, and applied medical analysis to the facts of the case to reach the conclusion reached in the opinion, the VA examination is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding a medical opinion is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation, referred to as service connection, if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active naval service. 38 U.S.C.A. § 1110 (wartime service). To establish entitlement to VA disability compensation, service connection, a Veteran must show: (1) a present disability; (2) an in-service incurrence of an injury or disease; and (3) a causal relationship between the present disability and the injury or disease incurred during service, the so called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, different legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. This may be accomplished by affirmatively showing inception during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). The Veteran did not service in combat and the combat provisions of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible. Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Competency is distinguished from the credibility and the weight of admissible evidence, which are also factual determinations. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). 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 Veteran. 38 U.S.C.A. § 5107(b). Evidence The Veteran served on active duty in the United States Navy. Her military occupational specialty was boatswain mate and she served aboard the USS Camden (AOE-2). The service treatment records, including the report of separation examination, contain no complaint, finding, history, treatment, or diagnosis of seborrheic or psoriasiform dermatitis. The service treatment records do show that in February 2001 the Veteran first complained of bumps on her upper extremities after using paint thinner, and the initial impression by a corpsman was contact dermatitis. She was given medication. On the day following the first visit, the Veteran complained of more bumps. When the Veteran was seen by a physician, the impression was probable irritative dermatitis. On the next day, the Veteran stated that the "rash" had spread, and the impression by the same corpsman was probable scabies and her medication was changed to treat scabies. The same physician, who had seen the Veteran earlier, stated that the Veteran should be observed to see if her symptoms resolved before changing her medication. There is no other entry about contact or irritative dermatitis or scabies. The service treatment records in June 2002 show that the Veteran was treated for folliculitis in the right axilla. In January 2003, she was treated for a fungal infection on the back of her left leg. In July 2003, in an occupational health consultation, the Veteran stated that her duties aboard ship included painting, chipping, sanding, and exposure to paints, fumes, and fuels. In October 2003, she was treated for right lower extremity cellulitis after hitting her shin on a table. After service, VA records in March 2006 show that the Veteran complained of a rash around her neck, and the assessment was contact dermatitis. On follow-up, the assessment was eczema. In April 2006, the impression was atopic dermatitis. History included a rash since November 2005. On consultation by a VA dermatologist in April 2006 for a recurrent rash around the neck, the assessment was seborrheic dermatitis. Private medical records show that in January 2007 the Veteran complained about a rash on her forehead and scalp. In March 2008, the Veteran testified that she has had skin problems since she was drenched with fuel on more than one occasion aboard a [refueling] supply ship for which she was treated. In September 2010 on VA examination, the Veteran complained of intermittent skin rashes for about 3 years. She stated that in service aboard ship she was exposed to fuels and that she had developed rashes on her arms because of contact with fuels. She stated that after service, the problem got worse. The diagnosis was eczema. The VA examiner expressed the opinion that it was not at least as likely as not that the current skin condition was related to contact dermatitis in service. The VA examiner explained that contact dermatitis was not the same as eczema or atopic dermatitis. On VA examination in January 2013, the Veteran brought medical records from a private physician, K.B., MD, who had evaluated the Veteran in February 2012. Although records of Dr. K.B. have not been made available for appellate review, the VA examiner noted that Dr. K.B. had taken a skin biopsy and the biopsy had shown psoriasiform dermatitis. The VA examiner expressed the opinion that the current diagnosis, psoriasiform dermatitis or psoriasis, was less likely as not related to one episode of contact dermatitis in service. On VA examination in August 2013, the VA examiner reviewed the Veteran's medical history, namely, the service treatment records, pertaining to documentation of contact dermatitis, post-service VA records, pertaining to the diagnosis of seborrheic dermatitis by a VA dermatologist in April 2006, and the diagnosis of psoriasiform dermatitis by biopsy by a private physician in February 2012. On examination the Veteran stated that in service she worked on a tanker ship and maintained hose lines and rigs and that on at least two occasions she was doused with fuel and that her safety equipment was not sufficient to protect her skin. She stated that after the initial fuel exposure she developed red plaques on her arms and abdomen and in addition to nausea and other systemic symptoms. She stated that now she develops skin eruptions on her neck and arms every three to six months. The VA examiner, a dermatologist, expressed the opinion that it was less likely than not that the diagnosis of seborrheic dermatitis or psoriasiform dermatitis was a progression of irritant contact dermatitis in service, rather the current seborrheic or psoriasiform dermatitis was a separate condition. The VA examiner explained that the Veteran did not have psoriasis, but psoriasiform dermatitis, and that the Veteran did not have atopic dermatitis, but seborrheic dermatitis as corrected by a VA dermatologist [in April 2006]. The VA examiner stated the recurrent skin eruptions as described by the Veteran were not the result of exposure to paint thinner in service, because the skin problem in service was consistent with irritant contact dermatitis and because the post-service recurrent skin eruptions occur without exposure to an irritant and recurrence of such a dermatitis without the irritant would not be plausible. Also, the VA examiner stated that even if the skin problem in service was due to allergic as opposed to irritant contact dermatitis, the recurrent skin problems would not be expected to develop in the posterior neck and arms. Analysis The Veteran asserts that her present skin disease was caused by exposure to fuel, paint thinner, or other toxins in service. The service treatment records show the Veteran complained of bumps on her upper extremities after using paint thinner, and the impression by a physician was probable irritative [contact] dermatitis. Scabies was also considered. After the documented episode there were no other entries about either contact dermatitis or scabies. The service treatment records do not contain any complaint, finding, history, treatment, or diagnosis of the present skin disease, seborrheic or psoriasiform dermatitis, and service connection for the present skin disease under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not warranted. The service treatment records also show that the Veteran was treated for other skin problems, namely, folliculitis, a fungal infection, and cellulitis, and after the initial episodes there were no other relevant entries in service or since service. And the Veteran does not argue and the record does not show that the Veteran has any present disability related to either folliculitis, a fungal infection, or cellulitis. The Veteran testified that in service she had skin problems on more than one occasion after she was drenched with fuel. The Veteran is competent to describe her duties as a boatswain mate aboard supply ship that included refueling and the Veteran is competent to describe symptoms such as a skin rash in service, which is within the realm of the Veteran's personal experience. See 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness); and see McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition is capable of lay observation). Contact dermatitis or skin rashes in service and the post-service diagnosis of skin disease on VA examination in August 2013, specifically, seborrheic or psoriasiform dermatitis, answer the questions of what happened in service and of a present disability. Competent and credible evidence is still required to establish a relationship or nexus of contact dermatitis or skin rashes in service to the present skin disease, seborrheic or psoriasiform dermatitis. As for evidence of a nexus to service, the present skin disease, seborrheic or psoriasiform dermatitis, is not a chronic disease listed in 38 C.F.R. § 3.309, and chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply and service connection for skin disease, seborrheic or psoriasiform dermatitis, under 38 U.S.C.A. § 1110 as implemented by 38 C.F.R. § 3.303(b) (chronicity and continuity of symptomatology) is not warranted. See Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013) (presumption of service connection for a chronic disease manifested during service applies only to enumerated chronic diseases under 38 C.F.R. § 3.309(a) and continuity of symptomatology avenue to service connection is available only for enumerated chronic diseases, 38 C.F.R. § 3.309(a)). Although service connection for the present skin disease is not warranted by affirmatively showing inception in service under 38 C.F.R. § 3.303(a) or by chronicity or by continuity of symptomatology under 38 C.F.R. § 3.303(b), service connection may still be established based on an initial diagnosis after service, when all of the evidence, including that pertinent to service, shows that the disability was incurred in service. 38 C.F.R. § 3.303(d). The Veteran as a lay person is competent to describe skin symptoms, which are capable of lay observation under case law. See McCartt, at 167. And a medical condition capable of lay observation is a simple medical condition. Jandreau, at 1377. The Veteran as a lay person is also competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The question is whether the Veteran as a lay person is competent to offer an opinion on the causal relationship or nexus between the present skin disease, seborrheic or psoriasiform dermatitis, and the contact dermatitis or exposure to fuel or other irritants in service. The Veteran's opinion, as a lay person, is limited to inferences that are rationally based on perception and does not require specialized education, training, or experience. Whether contact dermatitis is related to the present skin disease or whether the present skin disease is related to exposure to fuel or other irritants in service is not a simple medical condition that can be determined by the Veteran as a lay person based on inferences gained by her own personal knowledge, because the medical causal relationship here falls outside the realm of common knowledge of a lay person without specialized education, training, or experience. It is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the question of a causal relationship or nexus between the present skin disease and the skin condition in service or the present skin disease and exposure to fuel or other irritants in service. For this reason, the Board rejects the Veteran's lay opinion as competent evidence to substantiate the claim and the Veteran's lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim. As the lay evidence is not admissible, the Board need not reach the credibility of the evidence. The Veteran as a lay person is competent to describe a contemporaneous medical diagnosis or symptoms that later support a diagnosis by a medical professional. Jandreau, at 1377. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. No medical professional had diagnosed a skin disease before 2006 with history dating to November 2005. As for symptoms described by the Veteran that later support a diagnosis by a medical professional, the Veteran has not submitted any evidence from a medical professional and there is no evidence of record that the present skin disease is related to contact dermatitis in service or exposure to fuel or other irritants in service as described by the Veteran or otherwise related to an injury, disease, or event in service. The only medical evidence of record as to whether the present skin disease is related to contact dermatitis in service or exposure to fuel or other irritants in service consists of the opinion in August 2013 of the VA examiner, a dermatologist, who expressed the opinion that it was less likely than not that the diagnosis of seborrheic dermatitis or psoriasiform dermatitis was a progression of irritant contact dermatitis in service, rather the current seborrheic or psoriasiform dermatitis was a separate condition. The VA examiner explained the present or recurrent skin eruptions as described by the Veteran were not the result of exposure to paint thinner in service, because the skin problem in service was consistent with irritant contact dermatitis and because the current skin eruptions occur without exposure to an irritant and recurrence of such a dermatitis without the irritant would not be plausible. Although the VA examiner did not refer specifically to fuel or other irritants, the VA examiner did note the Veteran's history that she was doused with fuel and then developed skin symptoms and other systemic symptoms, which is evidence that the VA examiner considered other irritants besides paint thinner and the opinion provides sufficient detail that the present skin disease was not related to any irritant in service. Also, the VA examiner stated that even if the skin problem in service was due to allergic as opposed to irritant contact dermatitis, the recurrent skin problems would not be expected to develop in the posterior neck and arms As the opinion of the VA examiner was based on a review of the Veteran's history and provided a rationale for the conclusion reached in the opinion, the opinion constitutes competent and persuasive medical evidence that the present skin disease, seborrheic or psoriasiform dermatitis, is not due to contact dermatitis in service or otherwise related to an injury, disease, or event in service, including exposure to other irritants. There is no other medical evidence to consider and weigh against the opinion of the VA examiner. As for the remainder of the medical evidence, other skin conditions have been identified, namely, eczema or atopic dermatitis or psoriasis, but the identifications either came before the results of a skin biopsy, that is, psoriasiform dermatitis, in 2012 or the results of the biopsy were not made available until the Veteran was examined by VA in August 2013. The VA examiner did rely on the results of the biopsy to diagnosis psoriasiform dermatitis. For the above reasons, the preponderance of the evidence is against the claim and the benefit-of-the doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for the present skin disease, seborrheic or psoriasiform dermatitis, is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs