Citation Nr: 1603596 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 09-46 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a skin disability, to include recurrent cellulitis with local skin infections, including knees; lymphadenopathy of axillae and methicillin-resistant Staphylococcus aureus (MRSA) of left elbow, also claimed as cellulitis of right arm with fever and nausea; left lower extremity lymphedema; and lesions under armpits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from March 1996 to February 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision from the Winston-Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2013, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the Virtual VA electronic claims file. The Veteran's claim was remanded by the Board for additional development in January 2014, October 2014, and March 2015. The matter again is before the Board. This appeal was processed using the Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of these electronic records. FINDING OF FACT A chronic skin disability was not shown in service and is not otherwise related to the Veteran's active service. CONCLUSION OF LAW Entitlement to service connection for a skin disability is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). VCAA letters in VCAA March 2008 and July 2015 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. The letters explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claim that were lacking to substantiate the claim for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claim. The Board also notes that based in part on the Veteran's statements made during the Board hearing and subsequently his case was remanded for additional development. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA outpatient treatment records are in the file. Post service private medical records identified by the Veteran have been associated with the claims file, to the extent possible. In that regard, the Veteran was provided with a July 2015 letter requesting that he provide contact information regarding his private treatment providers or provide relevant medical records directly to VA, based on his reports during a prior VA medical examination. The Veteran, however, failed to respond to the letter. The Veteran and his representative have not otherwise asserted that there is additional evidence not of record that would help his claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran was afforded multiple VA examinations. The most recent VA examination in September 2015 concluded that it was less likely than not that the Veteran had a chronic skin disability that was incurred in or is otherwise related to military service. This conclusion was based on review of the evidence of record, interview of the Veteran, and physical examination. The Board, therefore, finds the September 2015 examination report to be thorough, complete, and sufficient upon which to base a decision with respect to the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Based on the association of VA treatment records, the multiple VA examination reports, and the subsequent readjudication of the claims, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2015). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability on a direct basis, 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he has a chronic skin disability that was incurred during his military service. The Veteran's service treatment records include multiple treatments for skin problems. In April 1996, the Veteran was treated for a bug bite on the right arm that was diagnosed as cellulitis. In June and July 1996, the Veteran was treated for cellulitis in the left knee due to a bug bite. In November 1996, the Veteran was treated for a bug bite. In April 1997, the Veteran denied a history of skin diseases and examination of the skin was normal. In August 1997, the Veteran was seen for lesions / bumps under his armpits that subsided after several days. In March 1998, the Veteran was diagnosed with left knee cellulitis. In November 1998, the Veteran denied current rash, skin infection, or sores. In March and April 1999, the Veteran was treated for cellulitis of the right knee as a result of a suspected spider bite. In August 2000, the Veteran was seen for a spider bite to the left forearm that required packing, irrigation, and dressing. In September 2000, the Veteran had a skin lesion on the left elbow and tested positive for MRSA. In February 2001, the Veteran had an insect bite on his left deltoid, although the record does not indicate that the bite developed into cellulitis. During service, the Veteran also was seen for spider bites on the back. In August 2005, June 2006, July 2006 and August 2006, the Veteran denied skin symptoms. In September 2006, the Veteran had no skin lesions or dry skin. During an April 2007 Report of Medical Examination for the purpose of a medical board, the Veteran's skin was found to be normal. In a contemporaneous Report of Medical History, the Veteran denied a history of skin diseases. In August 2006, the Veteran was noted to have no skin lesions. In April 2007, the Veteran's skin was normal on examination. In August 2007, the Veteran had local edema and mildly atrophic skin, but no skin breakdown or ulceration. In January 2008, the Veteran was noted to have a mole that was unchanged, but no other noted skin problems. In March 2008, April 2008, and May 2008, the Veteran had no skin symptoms. In May 2008, the Veteran was afforded a general VA medical examination. He reported that during military service he was subject to recurrent skin infections that seemed to be preceded by some sort of insect bite that would get infected. Some were quite severe and required intensive medical treatment with daily debridement and packing of the skin lesions. On other occasions, the lesions would clear up with local therapy. That said, any sort of insect bite seemed to bring about a reaction. The Veteran reported that on one or two occasions he did have MRSA. The lesions occurred all over the body, including the arms, legs, and abdomen. The examiner discussed in greater depth the Veteran's in-service skin problems, but noted that all the in-service problems had cleared up and that the Veteran had had no infections for the past three years, as he had not been exposed to as many insect bites because he had not been out in the field. The examiner indicated that the insect bites would get secondarily infected and usually last several days to several weeks, depending on the severity. There had been no skin treatment in the last several years. The diagnosis was recurrent cellulitis, local skin infections related to insect bites, with no evidence of activity now or for several years. In June 2008, July 2008, August 2008, and October 2008, the Veteran had no skin symptoms. In his November 2008 notice of disagreement, the Veteran indicated that his MRSA condition would never heal completely. In December 2008 and January 2009, however, the Veteran had no skin symptoms. In his November 2009 substantive appeal, the Veteran reiterated that he had experienced ongoing chronic problems since service. In May 2014, the Veteran denied any new or changing skin lesions, although he was noted to have dry skin. The Veteran was afforded a VA skin examination in May 2014. The examiner noted in-service diagnoses of cellulitis and hidradenitis suppurativa. The Veteran reported the onset of skin problems in September 2001, at which time he was found to have a contagious skin infection. Thereafter, he experienced recurrent infections that required varied treatments. Since service, he had also experienced recurrent infections, the most recent in approximately 2011 affecting both hands. He did not seek treatment at that time. The examiner concluded that it was less likely than not that the Veteran had a skin disability that was incurred in or caused by his military service. The rationale was that the Veteran had current skin changes that had not been evaluated by a medical treatment provider at any point after separation from service, which precluded linking the current problems to service. Moreover, the Veteran's last treatment for skin problems during service was in September 2000 and, like all previous skin problems, resolved after treatment. In November 2014, the Veteran denied any new or changing skin lesions. In December 2014, the Veteran was afforded another VA skin examination. The examiner noted a review of the electronic claims file and the Veteran's past diagnosis of cellulitis during service. The Veteran reported getting blisters in service, beginning around 2000. He reported ongoing issues two to three times per year, lasting about three months. The examiner concluded that it was less likely than not that a skin disability was incurred in or caused by the Veteran's military service. The rationale was that the Veteran was treated on multiple occasions in service for spider bites, with positive MRSA cultures in 1996 and 2000. In each case, the cellulitis resolved and there was no record of treatment for cellulitis or MRSA after 2000 and there was no evidence of such conditions at the time of the current examination. In addition, there was only one mention of hidradenitis suppurativa in the service treatment records, but given the nature of that disability and that there were not prior or subsequent treatment for that condition, it was unlikely that the Veteran actually had hidradenitis. In an effort to examine the Veteran during one of his reported flare-ups, the Veteran was afforded yet another VA examination in September 2015. The examiner noted the Veteran's in-service MRSA diagnosis. The Veteran reported a MRSA diagnosis in 2001 and five subsequent outbreaks, with the most recent in 2011. There had been no problems for the previous four years. The examiner concluded that the claimed skin disability was less likely than not incurred in or caused by military service. The rationale was that the Veteran was treated for cellulitis in service, with diagnosed MRSA in September 2000 and Gram positive cocci (not MRSA) in April 1996. There were additional treatments for cellulitis as a result of spider bites, all of which resolved without complications. The Veteran claimed that he had been treated on five occasions for cellulitis / MRSA between 2001 and 2011, but there was no documented treatment or diagnosis of such in the records. The Veteran denied any subsequent outbreaks. There was no evidence of a chronic MRSA or hidradenitis suppurativa condition in service or in the years after service. The Board acknowledges the Veteran's reports of a skin outbreak in 2011 (and possibly on additional occasions during the appellate time period). The Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge, such as subjective complaints of skin lesions and related problems, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Moreover, in light of the physically observable nature of such disabilities as skin lesions or rashes the Veteran, as a layperson, may be competent to diagnose a skin disability. See McCartt v. West, 12 Vet. App. 164, 167-68 (1999) (Veteran alleged skin disorder of boils, blotches, rash, soreness, and itching since service; Court implied that this may be the type of condition lending itself to lay observation and satisfy the nexus requirement). As such, the Board will conclude for the purpose of this decision alone that the Veteran had a skin disability at some point during the appellate process. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The critical question, therefore, is whether such disability was incurred in or is otherwise related to military service. Based on the evidence of record, the Board concludes that it was not. In reaching that determination, the Board finds the December 2014 and September 2015 VA examination reports of significant probative value. The examiners' opinions were based on an interview of the Veteran, his reported medical history, review of the medical evidence of record, and physical examination. Further, complete and thorough rationales were provided for the opinions rendered. Specifically, the examiners concluded that it was less likely than not that the Veteran's alleged skin disability was incurred in or was otherwise related to service because his in-service skin problems had fully resolved by September 2000 and there were no further noted problems for multiple years and, despite the Veteran's contentions, there was no evidence to support a finding of an ongoing and chronic cellulitis / MRSA skin disability after separation from service. The examiners considered the lay reports of record, but found these statements outweighed by the medical evidence of record showing resolved skin problems prior to 2000 and the absence of such problems thereafter. As noted above, on multiple occasions thereafter service treatment records specifically found no skin problems and the Veteran did not report otherwise. The examiners' conclusions are fully explained and consistent with the evidence of record. The sole evidence of record linking any skin problems that occurred during the relevant time period to military service, is the Veteran's current statements. As noted, the Veteran can report his physically observed symptoms, such as skin lesions. As such, the Veteran may be able to diagnose an acute skin disability. That said, the Board is unconvinced that the Veteran, given his lack of medical experience and training, has the capacity to diagnose a specific skin disability (i.e. cellulitis and/or MRSA), given that there are numerous skin disabilities with symptoms of the type described by the Veteran. The Board finds the Veteran's reports particularly problematic given that the one reported incident involving the skin, occurring in 2011, involved the Veteran's hands. The Veteran reported that he did not seek treatment for the hand problem. Thus, the sole evidence regarding the skin problem is the Veteran's representations. To the extent that the Veteran is competent to diagnose a generalized skin disability, the Board does not find that he is competent to link an acute skin disorder of the hands to disorders of the skin involving multiple other body parts that he experienced during service. As such, the Board affords far greater weight to the findings of the medical professionals of record, none of whom have found the Veteran's post-service skin problems to be related to his military service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In addition, the Board has considered the Veteran's contentions that he has been diagnosed with and treated for cellulitis / MRSA on five occasions, most recently in 2011. During his May 2014 VA examination, however, he conceded that he did not seek treatment for the skin problem involving his hands in 2011. This is the sole reported incident during the appellate time period. While the Board recognizes that the Veteran is competent to report a contemporaneous medical diagnosis, his testimony must be weighed against the other evidence of record. In this case, the Board affords far greater probative weight to the above VA medical opinions that during the relevant time period the Veteran has not had a chronic and ongoing cellulitis / MRSA disability that is related to his military service. As noted, the Veteran's lack of medical training renders his opinions of little probative weight and as he has conceded that he was not medically diagnosed with cellulitis and/or MRSA in 2011 there is no competent evidence of a chronic cellulitis and/or MRSA disability during the appellate time period. Although the Veteran has reported four other acute incidents involving problems with the skin, it is unclear when such incidents occurred (i.e. during service or after separation from service). As noted above, the Veteran has been sent multiple letters requesting his private treatment records documenting these claimed incidents (or authorization for VA to obtain the records directly from the provider), but he has not provided such authorization. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeals must therefore be denied. ORDER Entitlement to service connection for a skin disability, to include recurrent cellulitis with local skin infections, including knees; lymphadenopathy of axillae and MRSA of left elbow, also claimed as cellulitis of right arm with fever and nausea; left lower extremity lymphedema; and lesions under armpits, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs