Citation Nr: 1402016 Decision Date: 01/14/14 Archive Date: 01/31/14 DOCKET NO. 10-27 591A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a skin disability, including seborrheic dermatitis and hair loss, to include as due to exposure to ionizing radiation and other toxins in service. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to October 1985. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO). Originally, the Veteran was scheduled to present videoconference testimony before a Veterans Law Judge (VLJ) on September 13, 2011. He requested that the hearing be postponed and so it was rescheduled for December 6, 2011. However, he failed to report to the rescheduled hearing. As the record does not contain further explanation as to why he failed to report to this scheduled hearing the Board deems the request for a hearing to be withdrawn. See 38 C.F.R. § 20.704. In December 2012, the Board denied service connection for a disability exhibited by memory problems. diabetes mellitus, left ankle injury, and a disability exhibited by numbness and cramps in the lower extremities and remanded the issues of service connection for skin disability and low back disability for further development. In a June 2013 rating decision, the RO granted service connection for lumbar spondylosis with degenerative disc space narrowing. Therefore, this issue is no longer before the Board. FINDING OF FACT The Veteran does not have a current skin disability that had its clinical onset in service or is otherwise related to active duty. CONCLUSION OF LAW A skin disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under 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). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the Veteran was sent a letter in June 2007 that provided information as to what evidence was required to substantiate the claim, the division of responsibilities between VA and a claimant in developing an appeal, and what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting in the procurement of service treatment records and pertinent 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, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's December 2012 remand, VA obtained additional VA treatment records and provided the Veteran with a medical opinion in March 2013. This examiner reviewed the objective evidence of record, the Veteran's current complaints, and the results of previous clinical evaluations, then found that the request for an opinion was moot based on the lack of a current skin diagnosis. Therefore, VA has substantially complied with the December 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). 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. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis Service connection presupposes a current diagnosis of the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of the claim). In this case, the Veteran's service treatment records show diagnoses of cellulitis and alopecia areata during his active military service and he has provided lay evidence of seborrheic dermatitis since service. Nevertheless, the July 2007 examiner found that the Veteran's alopecia areata had resolved, there was no pathology upon which to render a diagnosis of seborrheic dermatitis, and residual scars from cellulitis of the left lower leg and sebaceous cyst of the lower back. While there is evidence of scars, the Veteran is already service connected for these. To award an additional rating for the same symptom would violate the rule against pyramiding. See 38 C.F.R. §§ 4.14, 4.118. There is no diagnosis of a skin disability in the VA treatment records. Thus, the objective evidence of record does not show a current skin disability or one that existed during the pendency of the Veteran's claim. In sum, the preponderance of the evidence is against a finding of a current skin disability. In the absence of evidence of a current disability, the claim must fail. Brammer, 3 Vet. App. 223, 225. The benefit sought on appeal is accordingly denied since there is no reasonable doubt to resolve in the Veteran's favor. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for a skin disability is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs