Citation Nr: 0907769 Decision Date: 03/03/09 Archive Date: 03/12/09 DOCKET NO. 97-13 593A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to service connection for skin disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The appellant served on active duty from September 1979 to April 1980. He also had service in the National Guard and Reserve, including a period from July 1982 to March 2004. This case was previously before the Board of Veterans' Appeals (Board) in May 2006, at which time it was remanded for further development. Following the requested development, the RO confirmed and continued its denial of the claim. Thereafter, the case was returned to the Board for further appellate action. In November 2008, the appellant had a hearing at the RO before the Veterans Law Judge whose signature appears at the end of this decision. FINDINGS OF FACT 1. Skin disease was first manifested in August 1984, and not during a period of active duty or active duty for training. 2. The preponderance of the evidence is against a finding that the appellant's skin disease, primarily diagnosed as folliculitis and dermatitis, is in any way related to the appellant's service. CONCLUSION OF LAW Skin disease is not the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 101(22)-(23), 1110, 1112, 1116, 1117, 1131, 5103, 5103A (West 2002 and Supp. 2008); 38 C.F.R. §§ 3.6 (c)-(d), 3.159, 3.303, 3.309, 3.311, 3.316, 3.317 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the appellant's appeal, the Board must determine whether VA has met its statutory duty to assist the appellant in the development of his claim of entitlement to service connection for skin disease. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In December 1994, VA received the appellant's claim of entitlement to service connection for skin disease; and, there is no issue as to providing an appropriate application form or completeness of the application for service connection or for an increased rating. On several occasions, VA notified the appellant of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by the appellant, and notice of the evidence VA would attempt to obtain. VA informed the appellant of the criteria for service connection, as well the manner in which disability ratings and effective dates are determined. Following notice to the appellant, the RO fulfilled its duty to assist the appellant in obtaining identified and available evidence needed to substantiate his claim. In addition to the appellant's service treatment and personnel records, the RO received numerous records and reports of the appellant's treatment outside of service. VA also examined the appellant to determine the nature and etiology of any skin disease found to be present. In addition, he presented relevant evidence and testimony at his hearing before the undersigned Veterans Law Judge. Following that hearing, the Veterans Law Judge held the record open for the receipt of additional evidence; however, no additional evidence was received. In sum, the appellant has been afforded a meaningful opportunity to participate in the development of his appeal. There is no evidence of any VA error in notifying or assisting the appellant that could result in prejudice to him that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. Analysis The appellant contends that his skin disease is primarily the result of his exposure to environmental hazards in service, including asbestos, radiation, mustard gas, Agent Orange, other toxic chemicals, and substances associated with participation in the Persian Gulf War. He also contends that his skin disorder is due, at least in part, to shots administered prior to training in 1983 at the National Training Center in Fort Irwin, California. Finally, he argues that his skin disease is due to drinking contaminated water during that training. Therefore, he maintains that service connection for skin disease is warranted. After carefully reviewing the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim. Accordingly, the appeal will be denied. VA compensation shall be paid to any veteran disabled by disease or injury incurred in or aggravated by active service, who was discharged or released under conditions other than dishonorable from the period of service in which the disease or injury was incurred or aggravated, provided the disability is not the result of the veteran's own willful misconduct. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In a February 1997 administrative decision the RO determined that the appellant had been dishonorably discharged from his period of active service between September 1979 and April 1980. Therefore, VA compensation may not be paid for any disability resulting from that period of service. Although the appellant is precluded from receiving compensation for skin disease based on his period of active service, service connection may still be established for disability resulting from disease or injury incurred in or aggravated while the appellant was performing active duty for training or from an injury incurred or aggravated during inactive duty for training. The term active duty for training means full-time duty in the Armed Forces performed by members of the Reserve Components or National Guard for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). The term inactive duty for training means duty in the Reserves other than full-time duty, special additional duty, or training other than active duty training. See 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d) (2002). As a general matter, service connection requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease identity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. VA has also set forth specific criteria with respect to claims of entitlement to service connection for disabilities resulting from exposure to Agent Orange, radiation, mustard gas, and from participation in the Persian Gulf War. 38 U.S.C.A. §§ 1112, 1116, 1117; 38 C.F.R. § 3.307, 3.309, 3.311, 3.316. Nevertheless, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). During the appellant's National Guard entrance examination in July 1982, there were no complaints or clinical findings of skin disease of any kind. Skin disease was not manifested until April 1984, when it was noted in a service treatment record that the appellant had a skin problem between his thighs. An August 1985 examination, however, revealed no evidence of a skin disorder save for a right thumb scar. Although subsequent workup by a private practitioner, R. B. R., M.D., revealed various diagnoses, including impetigo and acne vulgarus, the evidence does not show, and the appellant does not contend that he was on active duty for training at that time. Moreover, the etiology of those skin problems was not identified. There was no mention of any relationship to the claimed inoculations or to the claimed exposure to environmental hazards, such as Agent Orange, asbestos, radiation, or mustard gas or other toxic chemicals. There was also no mention of any relationship to substances associated with participation in the Persian Gulf War. Indeed, there is no competent evidence of record showing that the appellant ever had exposure to any of those elements in service; and there is no competent evidence of record to show that the appellant ever had service in Southwest Asia during the Persian Gulf War. Therefore, he may not avail himself of any of the specific criteria with respect to claims of entitlement to service connection for disabilities resulting from exposure to Agent Orange, asbestos, radiation, and mustard gas and from participation in the Persian Gulf War. At a December 1996 fitness for duty examination the appellant reported a history of a skin disease since serving in the California dessert. The cause of his skin disorder was unknown, and the appellant reported receiving treatment at Emory University. Physical examination revealed superficial dermatitis of unknown cause. A July 1997 report from Atlanta Dermatologic Surgery Consultants noted a diagnosis of chronic folliculitis and furnculosis of unknown etiology. In April 1996, a Georgia Army National Guard Lieutenant Colonel wrote that the appellant served at Ft. Irwin, California at times in 1983. In March 1996 and July 1997, former fellow servicemen reported that the appellant had consumed contaminated water during training at the National Training Center in 1983. They recalled that the appellant had become ill and had required medical treatment. Even if that event occurred, however, the preponderance of the competent evidence of record is negative for the competent evidence showing that the consumption of contaminated water was responsible for the development of any residual skin disease. More recent treatment records show that the appellant's skin disease is primarily diagnosed as folliculitis and dermatitis. However, during his November 2008 hearing, the appellant acknowledged that none of his health care providers had been able to determine the etiology of his skin disease. Indeed, the preponderance of the evidence, such as medical records from D. B. T, M.D., dated in January 1994 and service treatment records, dated in June 1994, July 1997, and January 2002, show that the etiology of the appellant's skin disease remains unknown. The United States Court of Appeals for Veterans Claims has held that where a physician is unable to provide a definite causal connection between a diagnosed disorder and service any opinion on that issue constitutes "what may be characterized as 'non-evidence.'" See Perman v. Brown, 5 Vet.App. 237, 241 (1993); (citing Sklar v. Brown, 5 Vet.App. 140, 145-46 (1993); Kates v. Brown, 5 Vet.App. 93, 95 (1993); Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992)); see also Dyess v. Derwinski, 1 Vet.App. 448, 453-54 (1991). There is some evidence, such as the report of a February 1995 VA examination, an August 1995 report from the Emory Clinic, a March 1996 private treatment record, and a January 2002 treatment record from M. L. L., M.D., which suggests that the appellant's skin disease is due to desert warfare training in 1983 or to exposure to environmental hazards in service, including asbestos. However, those accounts are based on a history reported by the appellant, rather than contemporaneous supporting evidence. Simply put, there is no competent evidence that the appellant was exposed to an environmental hazard at Fort Irwin, but even assuming that he was, there is no competent evidence finding that any current skin disorder is related to that exposure. In this respect, a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Moreover, as a layman, the appellant and the lay affiants are only qualified to report on matters which are capable of lay observation. They are not qualified to render opinions which require medical expertise, such as the diagnosis or cause of a particular disability. 38 C.F.R. § 3.159(a); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Therefore, without more, the appellant's opinion is not competent evidence of service connection. Because the appellant's skin disease was not initially manifested during a period of active duty for training and because the preponderance of the competent evidence of record is against a finding of a nexus between the appellant's skin disease and service, the appellant does not meet the criteria for service connection. Accordingly, service connection for skin disease is not warranted, and the appeal is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to service connection for skin disease is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs