Citation Nr: 1402011 Decision Date: 01/14/14 Archive Date: 01/31/14 DOCKET NO. 01-08 195 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a skin disorder. 2. Entitlement to service connection for residuals of cranial trauma secondary to arteriosclerotic heart disease. (The issues whether new and material evidence has been received to reopen claims of entitlement to service connection for stomach and foot disorders, as well as a claim of entitlement to service connection for a low back disorder, are the subject of a separate decision.) REPRESENTATION Appellant represented by: Kathy A. Lieberman, Esquire WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active military duty from May 1953 to January 1974. The appeal comes before the Board of Veterans' Appeals (Board) from a March 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In March 2007, the Board denied the claims listed on the title page, as well as the issue of entitlement to service connection for conjunctivitis. The Veteran thereafter appealed. In April 2009, the United States Court of Appeals for Veterans Claims vacated the part of the Board's decision to the extent that it denied the issues listed on the title page. Thereafter, in February 2010, the Board remanded the appeal for additional development. In October 2001 a personal hearing was held at the RO, and a transcript of that hearing is of file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for a skin disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT Residuals of a cranial trauma are not currently shown or diagnosed. CONCLUSION OF LAW Chronic residuals of cranial trauma were not incurred in or aggravated by active military service, and they are not proximately due to or the result of a service connected disorder. 38 U.S.C.A. § 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). There is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in various correspondence including, VA letters in May 2001 and May 2004, generally fulfill the provisions of 38 U.S.C.A. § 5103(a), save for a failure to provide notice addressing the type of evidence necessary to establish a disability rating and an effective date for the disabilities on appeal. The claims were readjudicated most recently in a November 2011 supplemental statement of the case. The failure to provide notice of the type of evidence necessary to establish a disability rating and an effective date for residuals of cranial trauma is harmless because the Board has determined that the preponderance of the evidence is against the claim. Hence, any questions regarding what rating or effective date would be assigned are moot. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service and pertinent postservice treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination, including records from the San Pablo Hospital, where the Veteran was treated following his November 1998 fall. Although the Veteran received Social Security Disability benefits in the 1970s and 1980s, the Social Security Administration has informed the Board that it no longer maintains records for the Veteran. In addition to the fact that the Veteran was informed in December 2011 that the Social Security Administration could not provide the records, the Board notes that the Social Security records, were they to still exist, would not be relevant to the Veteran's claim, as his claimed cranial trauma occurred in 1998, many years after he ceased receiving Social Security Disability benefits. The report from a July 2010 VA neurological examination, as requested by the February 2010 remand, is of record. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's statements in support of the claim are of record, including testimony provided at an October 2001 RO hearing. The hearing focused on the elements necessary to substantiate his service connection claim and the Veteran, through his testimony and his representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. 38 C.F.R. § 3.103(c)(2) (2013). The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be warranted for disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. For secondary service connection to be granted, generally there must be (1) medical evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When service connection is thus established for a secondary condition, the secondary disorder shall be considered a part of the original condition. 38 C.F.R. § 3.310; see Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected by a service-connected disorder is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. 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. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Second, if the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). Third, after determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). Where there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may favor one medical opinion over by providing an adequate statement of reasons or bases. See Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran is service-connected for atherosclerotic heart disease. He asserts that he fell off of a ladder in November 1998 as a result of dizziness associated with his heart disease, suffering cranial trauma in the fall. The evidence shows that the Veteran is service-connected for residuals of a right shoulder dislocation, and status-post broken ribs, both as secondary to a fall related to his atherosclerotic heart disease. The Board concedes that the Veteran fell in November 1998 as a result of his heart disease. See Wallin, 11 Vet. App. at 512. (The Veteran has not claimed that his alleged residuals of cranial trauma disability are related directly to his active duty service, and the evidence does not suggest that he has such a disability related to service. As the only injury claimed by the Veteran is his November 1998 fall, the Board will not further address the question of direct service connection). The remaining question, therefore, is whether the Veteran has a disability manifesting in chronic residuals of cranial trauma resulting from his November 1998 fall. Specific to the cranial trauma, he asserted at his October 2001 hearing that he received eleven sutures in his head after the fall, and that his treatment provider took x-rays. In his original claim, he also indicated that he received outpatient treatment with VA for a head disorder. X-rays conducted in November 1998, following the Veteran's fall from a ladder, showed normal cranial results, without evidence of skull fracture. In January 1999, the Veteran sought VA treatment for shoulder and elbow trauma related to his November 1998 fall. He did not indicate, per the medical records, any cranial symptomatology. Similarly, February 1999 VA treatment records showed treatment for the shoulder, elbow, and ribs, but did not indicate any treatment for head symptoms. The Veteran underwent a VA neurology examination in July 2010. That examiner noted the Veteran's history of a fall in November 1998, and his report of receiving sutures in his head. The Veteran denied any current treatment for cranial residuals of secondary to the fall. The examiner diagnosed migraine headaches occurring weekly. The examiner opined that the Veteran did not have any residual disability from cranial trauma, as there was no objective evidence of a cranial trauma to which any disability could be related. A December 2011 general medical examination noted that there were no scar conditions following a physical examination. That examiner also found no evidence of traumatic brain injury. The Board finds that the Veteran did not suffer a cranial trauma in November 1998, and that there are no diagnosed residuals of any cranial trauma that could be service-connected. The Veteran is competent to describe the circumstances of his fall in November 1998, to the extent that he was conscious and capable of observing them. Buchanan, 451 F.3d at 1335. He competently testified at his October 2001 hearing that he "was going up the ladder, and when [he] woke up, [he] was on the floor." He indicated that when he woke up, he was bleeding. He also stated that he subsequently received sutures to his head. Mere competence, however, is not enough to make his testimony in that regard probative; the evidence must also be credible. Barr, 21 Vet. App. at 308. The Board finds that the claimed head trauma is not credible. Despite the Veteran's claim that he received sutures following the fall, that assertion is not credible, as the medical evidence of record is counter to his assertion. The Veteran was medically treated following his fall. Those records include an x-ray of the head, but without any indication as to the purpose of those x-rays. All x-ray studies revealed normal findings. Nowhere in the extensive medical record is there a suggestion of sutures or any head scarring secondary to an injury caused by arteriosclerotic heart disease. The November 1998 treatment record dating immediately after the fall did not indicate that the Veteran needed or received stitches. The Veteran did not report any head symptomatology at his VA treatment in January or February 1999. The July 2010 examiner found no objective evidence of any cranial trauma that could be related to the November 1998 fall, and the December 2011 examiner noted no scarring. The Board is not permitted to find, on its own, that the lack of a notation of scarring in the medical treatment record from 1998 and 1999 suggests that the Veteran's testimony is incredible. Such would be an impermissible medical inference. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Rather, the Board finds, relying on the medical findings of the VA examiners, who found no objective evidence of a cranial trauma (July 2010) or evidence of scarring (December 2011), that the Veteran did not suffer cranial trauma requiring sutures in the November 1998 fall. See Kahana, 24 Vet. App. at 435. While the fact that San Pablo Hospital took x-rays in November 1998 suggests that the Veteran may have hit his head, with normal results from those x-rays, and no other evidence of any disability due to cranial trauma, the preponderance of the credible, probative evidence is against a finding that the Veteran suffered cranial trauma as a result of that fall. Without cranial trauma, there could be no current disability related to such trauma, and the Veteran's claim must be denied. See Wallin, 11 Vet. App. at 512. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for the residuals of a cranial trauma secondary to arteriosclerotic heart disease is denied. REMAND The issue of entitlement to service connection for a skin disorder was remanded because the prior examiner had failed to consider the Veteran's reports of continuing skin symptomatology since service. Unfortunately, the July 2010 examiner did not provide an adequate opinion, and failed to address the Veteran's lay evidence of continued symptomatology. Rather, the examiner relied on the lack of evidence in the service treatment records of the currently-diagnosed disorders. See Stegall, 11 Vet. App. at 271 (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In addition to failing to address the appellant's lay history of symptomatology, the examiner's report is inadequate in other aspects. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide an examination, the examination, and ensuing report, must be adequate). The examiner diagnosed the Veteran with "folliculitis on the right buttock - recurrent Herpes Simplex (cannot) be ruled out" and symptomatic dermographism. The examiner failed to address the possible etiological relationships between the folliculitis and the history of recurrent herpes simplex infections, type II, noted on the Veteran's October 1973 retirement examination. Further, the examiner failed to indicate what body part was affected by symptomatic dermographism, or address the relationship, if any, between symptomatic dermographism and the October 1973 indication of a several year history of eruption of blisters on sides of fingers and on forearm with change in weather and under stressful conditions (diagnosed as dyshidrosis eczema of hands and forearms). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Schedule the Veteran for a new dermatology examination. The examining dermatologist must review the claims file, this remand, and all relevant records associated with the Virtual VA record. The ensuing report must indicate that such a review occurred. The dermatologist must take a complete history of the Veteran's skin symptomatology. Following a physical examination, the dermatologist should provide current diagnoses of any skin conditions. Thereafter, the dermatologist must opine whether it is at least as likely as not (a 50 percent probability or greater) that any current skin disorder began during service, is due to an event, injury, or disease incurred during service, or is otherwise etiologically related to active duty service. In providing the requested opinions, the dermatologist is advised that the Veteran is competent to report the onset and continuity of his symptomatology. The dermatologist must provide a complete rationale for all opinions expressed. If the dermatologist is unable to provide any requested opinion without resorting to speculation, he or she must indicate why such an opinion would be speculative. 2. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The RO must ensure that the dermatologist documented consideration of records stored on Virtual VA. If the report is deficient in any manner, the RO must implement corrective procedures at once. 3. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. Then, readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter 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. 2013). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs