Citation Nr: 0006910
Decision Date: 03/15/00	Archive Date: 09/08/00

DOCKET NO. 96-09 455               DATE MAR 15, 2000

On appeal from the Department of Veterans Affairs Regional Office
in New Orleans, Louisiana

THE ISSUE

Entitlement to service connection for a skin disorder.

REPRESENTATION

Appellant represented by: The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

INTRODUCTION

The veteran had active military service from December 1957 to
October 1961 and from December 1990 to June 1991 that included
service in the Southwest Asia theater of operations from February
7, 1991 to May 12, 1991.

This matter is on appeal to the Board of Veterans' Appeals (the
Board) from the Department of Veterans Affairs (VA) Regional Office
(RO) in New Orleans, Louisiana. The Board in October 1997 remanded
the case for further development. The RO in August 1998 found the
veteran entitled to service connection for a low back disability
thereby granting the benefit sought on appeal. The case has been
returned to the Board for appellate consideration of the remaining
issue of entitlement to service connection for a skin disorder.

FINDING OF FACT

The claim of entitlement to service connection for a chronic skin
disorder is not supported by cognizable evidence showing that the
claim is plausible or capable of substantiation

CONCLUSION OF LAW

The claim of entitlement to service connection for a chronic skin
disorder is not well grounded. 38 U.S.C.A. 5107 (West 1991).

REASONS AND BASES FOR FINDING AND CONCLUSION

Criteria

Service connection may be granted for a disability resulting from
personal injury or disease contracted in the line of duty. 38
U.S.C.A. 1110, 1131 (West 1991).

Service connection connotes many factors but basically it means
that the facts, shown by evidence, establish that a particular
injury or disease resulting in disability was incurred coincident
with service in the Armed Forces, or if

2 -

preexisting such service, was aggravated therein. This may be
accomplished by affirmatively showing inception or aggravation
during service or through the application of statutory
presumptions. Each disabling condition shown by a veteran's service
records, or for which he seeks a service connection must be
considered on the basis of the places, types and circumstances of
his service as shown by service records, the official history of
each organization in which he served, his medical records and all
pertinent medical and lay evidence.

Determinations as to service connection will be based on review of
the entire evidence of record, with due consideration to the policy
of the Department of Veterans Affairs to administer the law under
a broad and liberal interpretation consistent with the facts in
each individual case. 38 C.F.R. 3.303(a).

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).

A threshold question to be answered is whether the veteran has
presented evidence of a well grounded claim; that is, a claim that
is plausible or capable of substantiation. Murphy v. Derwinski, 1
Vet. App. 78, 81 (1990).

Although the claim need not be conclusive, it must be accompanied
by supporting evidence. An allegation alone is not sufficient.
Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992).

Three discrete types of evidence must be present in order for a
veteran's claim for benefits to be well grounded: (1) There must be
evidence of a current disability, usually shown by a medical
diagnosis. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992);
Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); (2) There must
also be competent evidence of incurrence or aggravation of a
disease or injury in service. This element may be shown by lay or
medical evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994);
Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); and (3) There
must be competent evidence of a nexus between the in-service injury
or

- 3 -

disease and the current disability. Such a nexus must be shown by
medical evidence. Lathan v. Brown, 7 Vet. App. 359, 365 (1995);
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).

In determining whether a claim is well grounded, the Board is
required to presume the truthfulness of the evidence. Robinette v.
Brown, 8 Vet. App. 69, 77-8 (1995); King v. Brown, 5 Vet. App. 19,
21 (1993).

In order for a claim to be well grounded, there must be (1)
competent evidence of a current disability (a medical diagnosis);
(2) incurrence or aggravation of a disease or injury in service
(lay or medical evidence); and (3) a nexus between the in- service
disease or injury and the current disability (medical evidence).
Caluza v. Brown, 7 Vet. App. 498 (1995).

The Secretary may pay compensation under this subchapter to any
Persian Gulf veteran suffering from a chronic disability resulting
from an undiagnosed illness (or combination of undiagnosed
illnesses) that (1) became manifest during service on active duty
in the Armed Forces in the Southwest Asia theater of operations
during the Persian Gulf War; or (2) became manifest to a degree of
10 percent or more within the presumptive period prescribed under
subsection (b).

(b) The Secretary shall prescribe by regulation the period of time
following service in the Southwest Asia theater of operations
during the Persian Gulf War that the Secretary determines is
appropriate for presumption of service connection for purposes of
this section. The Secretary's determination of such period of time
shall be made following a review of any available credible medical
or scientific evidence and the historical treatment afforded
disabilities for which manifestation periods have been established
and shall take into account other pertinent circumstances regarding
the experiences of veterans of the Persian Gulf War.

(c)(1) The Secretary shall prescribe regulations to carry out this
section. (2) Those regulations shall include the following: (A) A
description of the period and

4 -

geographical area or areas of military service in connection with
which compensation under this section may be paid.

(B) A description of the illnesses for which compensation under
this section may be paid.

(C) A description of any relevant medical characteristic (such as
a latency period) associated with each such illness.

(d) A disability for which compensation under this subchapter is
payable shall be considered to be service connected for purposes of
all other laws of the United States.

(e) For purposes of this section, the term "Persian Gulf veteran"
means a veteran who served on active duty in the Armed Forces in
the Southwest Asia theater of operations during the Persian Gulf
War. 38 U.S.C.A. 11 17.

Except as provided in paragraph (c) of this section, VA shall pay
compensation in accordance with chapter 11 of title 38, United
States Code, to a Persian Gulf veteran who exhibits objective
indications of chronic disability resulting from an illness or
combination of illnesses manifested by one or more signs or
symptoms such as those listed in paragraph (b) of this section,
provided that such disability: (i)became manifest either during
active military, naval, or air service in the Southwest Asia
theater of operations during the Persian Gulf War, or to a degree
of 10 percent or more not later than December 31, 2001; and (ii) by
history, physical examination, and laboratory tests cannot be
attributed to any known clinical diagnosis.

(2) For purposes of this section, "objective indications of chronic
disability" include both "signs," in the medical sense of objective
evidence perceptible to an examining physician, and other, non-
medical indicators that are capable of independent verification.

5 -

(3) For purposes of this section, disabilities that have existed
for 6 months or more and disabilities that exhibit intermittent
episodes of improvement and worsening over a 6-month period will be
considered chronic. The 6-month period of chronicity will be
measured from the earliest date on which the pertinent evidence
establishes that the signs or symptoms of the disability first
became manifest.

(4) A chronic disability resulting from an undiagnosed illness
referred to in this section shall be rated using evaluation
criteria from part 4 of this chapter for a disease or injury in
which the functions affected, anatomical localization, or
symptomatology are similar.

(5) A disability referred to in this section shall be considered
service connected for purposes of all laws of the United States.
For the purposes of paragraph (a)(1) of this section, signs or
symptoms which may be manifestations of undiagnosed illness
include, but are not limited to:

(1) fatigue, (2) signs or symptoms involving skin, (3) headache,
(4) muscle pain, (5) joint pain, (6) neurologic signs or symptoms,
(7) neuropsychological signs or symptoms, (8) signs or symptoms
involving the respiratory system (upper or lower), (9) sleep
disturbances, (10) gastrointestinal signs or symptoms, (11)
cardiovascular signs or symptoms, (12) abnormal weight loss or (13)
menstrual disorders.

Compensation shall not be paid under this section (1) if there is
affirmative evidence that an undiagnosed illness was not incurred
during active military, naval, or air service in the Southwest Asia
theater of operations during the Persian Gulf War; or (2) if there
is affirmative evidence that an undiagnosed illness was caused by
a supervening condition or event that occurred between the
veteran's most recent departure from active duty in the Southwest
Asia theater of operations during the Persian Gulf War and the
onset of the illness; or (3) if there is affirmative evidence that
the illness is the result of the veteran's own willful misconduct
or the abuse of alcohol or drugs.

6 -

For purposes of this section: (1) the term "Persian Gulf veteran"
means a veteran who served on active military, naval, or air
service in the Southwest Asia theater of operations during the
Persian Gulf War. (2) the Southwest Asia theater of operations
includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq
and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman,
the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian
Sea, the Red Sea, and the airspace above these locations. 38 C.F.R.
3.317.

In a precedent opinion, dated May 3, 1999, the VA General Counsel
concluded that a well grounded claim for compensation under 38
U.S.C.A. 1117(a) and 38 C.F.R. 3.317 for disability due to
undiagnosed illness generally requires the submission of some
evidence of: (1) active military, naval, or air service in the
Southwest Asia theater of operations during the Persian Gulf War;
(2) manifestation of one or more signs or symptoms of undiagnosed
illness; (3) objective indications of chronic disability during the
relevant period of service or to a degree of disability of 10
percent within the specified presumptive period; and (4) a nexus
between the chronic disability and the undiagnosed illness.
VAOPGCPREC 4-99. The Board is bound by such interpretations. 38
U.S.C.A. 7104(c) (West 1991).

The rating schedule provides ratings for eczema under Diagnostic
Code 7806. The rating schedule provides that Leishmaniasis,
americans (mucocutaneous, espundia), Leishmaniasis, old world
(cutaneous, oriental sore), Lupus erythematosus, discoid, Pinta,
Tuberculosis luposa (lupus vulgaris), Verruga peruana,
Dermatophytosis, Tinea barbae, Pemphigus, Psoriasis, Dermatitis
exfoliativa, New growths, malignant, skin, New growths, benign,
skin are to be rated for eczema unless otherwise provided,
dependent upon location, extent, and repugnant or otherwise
disabling character of manifestations. Diagnostic Codes 7807-7819.

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 clam, in
which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App.
49 (1990).

7 - 

When, after consideration of all of the evidence and material of
record in an appropriate case before VA, there is an approximate
balance of positive and negative evidence, the benefit of the doubt
doctrine in resolving each such issue shall be given to the
claimant. 38 U.S.C.A. 5107(b); 38 C.F.R. 3.102, 4.3.

Analysis

The veteran's initial VA compensation application for a skin rash
of the stomach and back was received in June 1992. There in he
reported treatment in service in 1991. The RO denied the claim in
February 1993 and informed him of the determination and that was
based on his service medical records. He then referred to skin
rashes in a VA benefit application in February 1994 that mentioned
Persian Gulf War participation. The service medical records showed
examinations in 1979, 1984 and 1988 were unremarkable regarding the
skin and demobilization examination in 1991 showed that he reported
no rash, skin infection or sores. The clinical examination in May
1991 showed a normal skin and there was no history of skin disease.
Periodic examination in March 1992 also showed normal skin and no
skin disorder was mentioned in the summary of hospitalization in
July 1992 or in later outpatient reports though October 1992.

The VA medical records included a July 1992 examination that
according to the examiner showed a grossly not too remarkable skin
except for some acne type lesions on the torso and the extremities.
There was no diagnosis of any skin disease. The veteran reported
that he had skin lesions, which had come and gone for many years
and that he wondered if the skin condition was related to prior
work as a painter or mechanic. VA examination in November 1993 was
unremarkable regarding the skin currently or by history.

VA examined the veteran in March 1994 and therein he reported that
for approximately two years he had pruritic, erythematous macular
eruptions currently limited to the forearms but involving multiple
other skin areas in the past. The

8 -

examiner noted an erythematous eruption of the forearms and
reported the diagnosis of chronic erythematous dermatosis of
unknown etiology or type.

Military medical records show an evaluation in mid 1995 included a
history of rash since returning from Saudi Arabia in 1991. Another
evaluation form notes a diagnosis of folliculitis. A March 1995
consultation report noted erythematous plaques of the neck and arm
areas and a dermatology consultation the next month showed
folliculitis of the right shoulder and asteatotic eczema. Medical
examination in June 1995 showed normal skin with a history of skin
disease.

At a RO hearing the veteran described the skin rash that appeared
after demobilization and had come and gone since (Transcript 10-
12). A statement from a serviceman recalled that the veteran had
various disorders including skin rash in the Persian Gulf. On an
orthopedic examination for VA in December 1997 the veteran was
noted as having erythematous dermatitis and that the veteran stated
had been diagnosed from Desert Storm duty. The examiner noted
patchy flattened red spots over the body. Military medical records
show tinea corporis questioned in November 1997.

On VA examination of the skin in early 1998 the veteran reported he
had the current condition for a long time but the exact length of
time was unknown. He reported that the problem was intermittent and
responded to treatment in the past. The examiner reported lesions
on the extremities and torso that were now erythematous, macular
and not scaly but when they were first seen they were scaly and
palpable. The examiner noted that a biopsy in 1997 showed a
lymphocytic infiltrate that was not atypical and compatible with a
type of nummular eczema. The diagnosis was nummular eczema. The
examiner in October 1998 added that the veteran's chart had been
reviewed and that no change was warranted from the January 1998
report.

Section 5107 of title 38, United States Code unequivocally places
an initial burden upon the claimant to produce evidence that a
claim is well grounded; that is, that the claim is plausible.
Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v.

9 -

Brown, 5 Vet. App. 91, 92  (1993). Because the veteran has failed
to meet this burden, the Board finds that his claim for service
connection for a skin disorder is not well grounded and must be
denied.

The threshold question that must be resolved is whether the veteran
has presented evidence of a well-grounded claim, that is, that a
claim is plausible. In view of the evidence, the Board finds that
the veteran has not met this initial burden and that as a result
there is no further duty to assist the veteran in regard to the
development of the claim.

In connection with the development of the claim, the Board observes
that the RO has obtained service medical records and post service
VA and non-VA medical records that include several comprehensive
examinations. A diligent effort has been made to provide an
adequate record. The records that have been obtained are
comprehensive and appear to provide an adequate record for an
informed decision without any claimed or possible potential for
prejudice. Stegall v. West, 11 Vet. App. 268 (1998). Although
service records for the first period of active service were not
located. The claim for service connection does not allege onset
during this period of service. The Board must review the claim
under the current standard for well grounded claims and in
remanding the case the Board did not state the claim was well
grounded. However the development asked for would have been
inappropriate if the claim was not well grounded unless there was
outstanding evidence necessary for an informed determination. The
case law at this time does not appear to be in conflict with this
interpretation. Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir.
1997); Sarmiento v. Brown, 7 Vet. App. 80, 85-86 (1994). See also
Carbino v. Gober, 10 Vet. App. 507, 510-11 (1997).

The essential elements of a well-grounded claim are evidence of a
current disability (a medical diagnosis), of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence depending on the circumstances), and of a nexus between
the inservice injury or disease and the current disability (medical
evidence). Caluza v. Brown, 7 Vet. App. 498 (1995).

10-

Where the determinative issue involves causation or a medical
diagnosis, as is the case in the veteran's claim, competent medical
evidence to the effect that the claim is possible or plausible is
required. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The
claimant does not meet this burden by merely presenting lay opinion
because he is not a medical health professional and does not
constitute competent medical authority. Espiritu v. Derwinski, 2
Vet. App. 492 (1992). Consequently, the veteran's lay assertions
cannot constitute cognizable evidence, and as cognizable evidence
is necessary for a well-grounded claim, Tirpak v. Derwinski, 2 Vet.
App. 609, 611 (1992); his lay assertion on a matter of medical
causation or etiology would not be entitled to any favorable
presumption in the well-grounded determination.

The Board observes that the service medical records do not show
complaints of skin disease, and a negative history for past or
present skin disease was given on medical history completed with
the comprehensive medical examination in 199 1. There have been
since service diagnoses of a skin disease. His complaint of itching
early on when viewed liberally would reasonably be found as
acceptable medical evidence, that is, "signs" of a disorder that
has been attributed to a known clinical diagnosis, of eczema both
on VA and military examinations specifically directed to the skin
complaints.

The Board must observe that the veteran's recollection of skin
symptoms tends to rebut the acceptance of his complaints as
"nonmedical indicators" that have been verified medically. On
earlier VA examinations the veteran reported skin complaints that
in retrospect given the elaborate history recorded are reasonably
viewed as manifestations of the skin disorder eczema. There is no
report of a nonspecific or otherwise undiagnosed skin disorder by
dermatology examiners that is not accounted for in the known
history.

In view of this evidence, in particular, the information of the
recent dermatology examinations, the Board is left with the belief
that the veteran has not met the criteria for further consideration
as an undiagnosed illness of the skin as he has a

- 11 -

skin rash of determined etiology confirmed at this time, and what
he appears to have experienced from time to time is skin itching
attributed to a known diagnosis. Although the claim was not
reviewed on the basis of undiagnosed illness, the record does not
show this and the provisions of 38 C.F.R. 3.317 are not for
application in this case. The law and regulations for such claims
have been provided in this decision for the veteran's information.
In view of the evidence, in particular, the conclusions of the
recent dermatology examinations, the Board is must conclude that
the claim for service connection is not well grounded. The record
does not have currently medical evidence linking the current eczema
to service. The veteran is not relieved of the element in
establishing a well grounded claim. See for example Savage v.
Gober, 10 Vet. App. 488 (1997) for a discussion of an exception to
the general rule of Caluza, recently clarified in Voerth v. West,
13 Vet. App. 117 (1999). The veteran should also understand that in
medical records a self reported history unenhanced by additional
comment does not constitute competent medical evidence. See Grover
v. West, 12 Vet. App. 109, 112 (1999), affirming LeShore v. Brown,
8 Vet. App. 406 (1995).

As the Board finds the claims not well grounded, there is no burden
upon the Board to require an examination or medical opinion
regarding a nexus between the veteran's service and the claimed
disorders. Brewer v. West, 11 Vet. App. 228 (1998). The Board must
point out that it was the holding in Morton v. West, 12 Vet. App.
477 (1999) that absent the submission and establishment of a well-
grounded claim, the VA Secretary cannot undertake to assist a
veteran in developing facts pertinent to his claim and that any
perceived or actual failure by the Secretary to render assistance
in the absence of a well-grounded claim cannot be legal error.

The Board further finds that the RO has advised the appellant of
the evidence necessary to establish a well grounded claim. And, as
noted previously, the veteran has not indicated the existence of
any post service medical evidence that has not already been
obtained and available that would well ground the claim. 38
U.S.C.A. 5103(a) (West 1991); McKnight v. Gober, 131 F.3d 1483
(Fed. Cir. 1997)- Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997).
Thus the veteran is not prejudiced by the Board's decision denying
the claim as not well grounded.

12 -

ORDER 

Service connection for a skin disorder is denied.

Mark J. Swiatek
Acting Member, Board of Veterans' Appeals

-13 -