Citation Nr: 1808251	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  10-16 616	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Fort Harrison, Montana


THE ISSUE

Entitlement to service connection for a skin disability, to include as due to herbicide exposure. 


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

G. A. Ong, Associate Counsel

INTRODUCTION

The Veteran served on active duty from May 1969 to January 1972. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. Jurisdiction is currently retained by the RO in Fort Harrison, Montana. 

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in July 2016. A transcript of the hearing is associated with the electronic claims file. 

In October 2016, the Board remanded this matter for further evidentiary development. The VA examination having been provided, the directives have been substantially complied with and the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.


FINDING OF FACT

A skin disability was not manifest during service or within one year of separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease.


CONCLUSION OF LAW

A skin disability was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). The RO provided timely notice in its letter dated December 2008 that met the requirements. The notice included all criteria for service connection on a direct basis and an explanation of the Veteran's and VA's respective responsibilities to obtain relevant evidence. Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). 

The file contains the Veteran's service personnel and treatment records, identified or submitted records of private and VA medical care, and the report of the VA examination in September 2017. The Veteran has not identified any additional available, outstanding records.  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with a VA examination in September 2017. The report was adequate because the examiner considered and addressed the Veteran's contentions, conducted a thorough examination, reviewed the claims file, and provided sufficient supporting rationales for the opinions where necessary.

Based on the foregoing, the Board finds the examination report to be thorough, complete, and a sufficient basis upon which to reach a decision on the Veteran's service connection claim decided herein. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist in this case is satisfied.

The Veteran has not identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). For the aforementioned reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. 

II. Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1101; 38 C.F.R. § 3.303(a). Generally, to establish service connection 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). 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). 

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

The Veteran contends he is entitled to service connection for a skin disability. The preponderance of the evidence is against the claim.

At the July 2016 hearing, the Veteran's representative stated that the Veteran's skin disability has not been given a diagnosis. The representative further reported that the Veteran's treating sources have ruled out every possible known contaminant exposure or cause for the asserted condition. 

The threshold requirement for the granting of service connection is evidence of a current disability. In the absence of evidence of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement in a claim of service connection of current disability "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." See McClain v. Nicholson, 21 Vet. App. 319 (2007).

Service treatment records dated April, August, and September 1970 reflect the Veteran endorsed a heat rash and rashes on his groin and feet. In each instance, however, he was not diagnosed with a skin condition. The Board notes that the Veteran denied a history of skin diseases in his separation examination. The separation examination disclosed that the skin was normal. The September 1989 enlistment examination also disclosed that the skin was normal. 

Post-service VA outpatient treatment records dated July 2012 note the Veteran did not have a history of chronic skin infections. In November 2012, the Veteran reported skin-related complaints but treatment notes show that no diagnosis was rendered. An April 2013 physical examination similarly yielded normal skin findings. Subsequently in October 2014, although the Veteran reported stress concerning lesions on his skin, only normal skin examination findings were noted. In May 2016, the Veteran complained of multiple lesions on his arms, legs, and head. VA outpatient treatment records do not reflect the Veteran received treatment for or a diagnosis associated with his reported symptoms. 

Pursuant to the October 2016 Board remand, the Veteran was afforded a VA skin examination in September 2017. The Veteran reported that he has no diagnosis of a skin condition. The Veteran stated that in 1998, he underwent skin biopsies. He noted the findings were assessed as "unidentifiable." Although the Veteran indicated he first noticed symptoms while in Germany from 1970 to 1972 and sought medical care in the 1980's, he was unable to recall a diagnosis. Upon physical examination, the VA examiner observed multiple small excoriations and gouges of the skin in the chest, upper back, and upper arm areas. The VA examiner noted that an excoriation is a term to describe superficial, often linear skin erosion caused by scratching. The VA examiner indicated there was no objective clinical evidence of a diagnosis of a skin disability. 

The VA examiner opined that there is no objective clinical evidence of a diagnosis of a skin disability, and therefore, there is no objective clinical evidence of a diagnosed skin disability secondary to any event during military service. The VA examiner reported that the Veteran presented to the examination with findings of skin excoriations with no objective clinical evidence of medical record indicating the underlying pathology, cause, or etiology. Upon review of service treatment records, VA medical treatment records, and other additional medical treatment records, the VA examiner indicated that there is no objective clinical evidence of a skin disability condition, a diagnosed skin disability clinically linked by cause nor aggravation to any event during military service, or a condition recognized as a presumptive disease associated with Agent Orange or other herbicides used during military service. 

The Board finds the September 2017 VA examiner's opinions of significant probative value. The examiner's opinions were based on a review of the relevant treatment records and a clinical examination, and clear and detailed contentions of the Veteran. The opinions adequately addressed and reconciled the Veteran's subjective complaints contained in the record with the clinical examination. Further, complete and thorough rationales were provided for the opinions rendered. The conclusions are fully explained and consistent with the evidence of record, and are accorded significant probative weight. Nieves-Rodriguez, 22 Vet. App. at 295. 

Based on the evidence of record, service connection for a skin disability is not warranted in this case. As noted above, the threshold requirement for the granting of service connection is evidence of a current disability. In the absence of evidence of a current disability, in this matter a skin disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. Here, the totality of the competent evidence does not reflect that the Veteran has a skin disability.

The Veteran reported in a December 2008 statement that he experiences open sores and rashes due to exposure from Agent Orange. During the September 2017 VA skin examination, the Veteran reported break-outs occur with certain soaps, and are triggered by filling gasoline cans and exposure to bug sprays. He stated that sores appear everywhere and his skin is rarely clear due to itching. It is clear that the Veteran complained of a rash during service. However, at separation, his skin was normal. When examined in September 1989, the skin was normal and when examined for compensation purposes, there was no skin pathology, other than the marks left by his own scratching. His own report of ongoing skin pathology pales in significance and is far less credible than the repeatedly normal findings.   We also note that during the hearing, the representative established that there had never been a diagnosis.  Here, there is a remarkable lack of objective evidence and certainly no qualifying diagnosis.  The Veteran's statements do not establish the presence of an identified disease (diagnosis) and do not establish a competent relationship to service.  We conclude that the normal VA examination, normal separation examination and normal September 1989 examination are more probative and more credible.

Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. 



ORDER

Entitlement to service connection for a skin disability, to include as due to herbicide exposure, is denied. 



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs