Citation Nr: 1418968 Decision Date: 04/29/14 Archive Date: 05/06/14 DOCKET NO. 10-36 037 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a chronic acne, to include acne vulgaris (claimed as residuals of a staph infection). REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD L. McCurdy, Associate Counsel INTRODUCTION The Veteran served on active duty for the United States Navy from January 1977 to December 1979. This case comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in October 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In a September 2013 decision, the Board reopened the previously denied claim for service connection for a chronic skin disorder, to include acne vulgaris (claimed as residuals of a staph infection). The Board remanded the underlying claim for service connection to the RO for additional development. This matter has returned to the Board for further appellate review. FINDING OF FACT An acne disability, to include acne vulgaris, has not been established at any time during the appeal period. CONCLUSION OF LAW The criteria for service connection for chronic acne, to include acne vulgaris (claimed as residuals of a staph infection), have not been met. 38 U.S.C.A. §§ 1111, 1131, 5103, 5103A (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist 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 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in August 2009 of the criteria for service connection claims in addition to his and VA's respective duties for obtaining evidence. He was also notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in October 2009. Nothing more was required. VA also has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2012); 38 C.F.R. § 3.159 (2013). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records and VA outpatient treatment records. Consideration has also been given to the statements submitted by the Veteran in support of his claim. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. This appeal was remanded by the Board in September 2013 for further development, which included obtaining the Veteran's VA treatment records and scheduling him for an appropriate VA examination. VA records dated since 2009 have been obtained. Unfortunately, although the Veteran was scheduled for a VA examination in November 2013 in compliance with the remand directives, he failed to attend the examination. The Veteran was notified in the January 2014 Supplemental Statement of the Case (SSOC) that in accordance with 38 C.F.R. § 3.655 (2013), in the absence of a showing of good cause as to why he did not appear for the examination, the claim should instead be adjudicated based on the available evidence of record. He responded that he had no additional evidence or argument to support his claim. Such establishes that the Veteran was not only aware of the fact that he failed to report for his examination, and that there was no good cause for him missing the examination, but that his failure to report could have an adverse effect on his claim. Therefore, the Board finds that there was substantial compliance with its September 2013 remand directives and a remand is unnecessary. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Indeed, the Board emphasizes that VA's duty to assist is not a one-way street. If a claimant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (the claimant has an obligation to cooperate in the development of evidence pertaining to claim, and failure to do so puts the claimant at risk of an adverse adjudication based on an incomplete and underdeveloped record). The Veteran was also provided an opportunity to set forth his contentions during a hearing, which he declined. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. 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). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, and 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The disability in this case, a chronic skin condition, to include acne vulgaris or residuals of a staph infection, is not one of the enumerated chronic diseases. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As the Veteran has not been diagnosed with one of the specified chronic diseases, service connection via the demonstration of continuity of symptomatology is not for application in the present case. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Governing law provides that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service (2) and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2013). Before the presumption of soundness can be applied, there must be evidence that a disability or injury that was not noted on entrance into service manifested or was incurred in service. See Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012). Where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the Veteran's entrance examination report, the presumption of soundness operates to shield the Veteran from any finding that the unnoted disease or injury preexisted service. Id. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2013). In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), the United States Court of Appeals for Veterans Claims (Court) clarified that the presumption of soundness only applies where there has been an entrance examination prior to the period of service on which the claim is based. See 38 U.S.C.A. § 1111 (West 2002); Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected"). The Veteran's service enlistment examination is not included with his service treatment records. However, since there are other records missing from the Veteran's service treatment records, to include the report of a discharge examination, and it is consistent with his active duty service that he would have undergone an entrance examination, the Board concludes that the entrance examination is missing from the record. Where an entrance examination is lost or missing, the presumption of soundness attaches. See Doran v. Brown, 6 Vet. App. 283, 286 (1994). The presumption of soundness can only be rebutted by clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service, and (2) was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence".) That is, the standard of proof for rebutting the presumption of soundness is not merely evidence that is "cogent and compelling, i.e., a sufficient showing, but evidence that is clear and unmistakable, i.e., undebatable ...." Vanerson, 12 Vet. App. At 261. In short, it is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). The Board finds that the presumption cannot be rebutted based on the evidence of record. The evidence of acne preexisting service consists of only statements made by the Veteran during treatment in service as to the onset of his condition. For example, during treatment in April 1978, the Veteran indicated he had a "2-year history of acne." However, there are no medical records to support this contention and the Board finds that such a statement does not meet the "onerous" requirements of the "clear and unmistakable evidence" burden. However, despite the fact that the Veteran was seen in service for complaints of acne, and that he also received treatment for a staph infection, a review of the record fails to establish the diagnosis of a current chronic acne disability. VA records dated from 2009 (date of claim) to the present do not document active treatment or diagnosis of chronic acne. It is true that he is listed as having a medical history of acne, and that a 2009 record notes that he has a prescription for a coal-based shampoo for acne. However, the 325 pages of VA treatment records are silent with respect to a current diagnosis of acne. The Board further notes that multiple examinations, which included a review of skin, are negative with respect to acne. There are references to the Veteran having the residuals of sun damage and having actinic keratosis, but acne is not identified as being an active process. The purpose of the requested VA examination was, in part, to establish the presence of a current disability. He failed to report for his scheduled VA examination. In the case of a service connection claim, when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination, or reexamination, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(a), (b) (2014). Here, as discussed, there is no evidence of a current diagnosis of a chronic acne disability. In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Given that a diagnosis of acne has not been shown during the appeal period, or proximate thereto, the Board finds that service connection for chronic acne is not warranted. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, No. 11-3272 (Vet. App. July 10, 2013) (considering the application of McClain on a diagnosis predating the filing of a claim). Consideration has been given to the Veteran's assertion that he has a current chronic acne disability. However, while the Board readily acknowledges that Veteran is competent to report skin symptoms such as redness, inflammation, and pustules, there is no indication that the Veteran is competent to diagnose acne. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board emphasizes that the record shows that the Veteran has a medical history significant for actinic keratosis, skin cancer, and impetigo as well as acne. In this regard, the Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis, especially in light of the fact that he has experienced several difference kinds of skin problems that could have overlapping symptoms. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating skin disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir. 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. Notwithstanding the foregoing, even if a current diagnosis of acne was established, the Board finds that the totality of evidence is against the finding that the Veteran's current skin condition is connected to active service, to include the acne that he was treated for in service. The is no competent medical opinion that is favorable to the appeal. Emphasis is again placed on the determination that the Veteran lacks the competence render an opinion regarding any skin disorder that he may have. His opinion that his current acne problem, which is not established, is related to his in-service acne holds no probative value. The preponderance of the competent and probative evidence does not establish that the Veteran has current chronic acne that is related to his active service. No provider has otherwise linked a current skin disorder to the Veteran's service. There is no reasonable doubt to be resolved in the Veteran's favor and the claim must be denied. 38 U.S.C.A. § 5107(b). ORDER Service connection for a chronic skin disorder, to include acne vulgaris (claimed as residuals of a staph infection), is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs