Citation Nr: 0000787 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 97-32 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for contact dermatitis of the right arm and folliculitis of the face. 2. Entitlement to service connection for prostatitis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jeanne Schlegel, Associate Counsel INTRODUCTION The veteran served on active duty from April 1976 to April 1996. This matter comes before the Board of Veterans' Appeals (the Board) from an October 1996 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO) in which the RO denied service connection for disabilities which included contact dermatitis of the right forearm and folliculitis of the face; prostatitis, herpes and shin splints. In July 1997, the veteran filed a Notice of Disagreement as to those four issues and a Statement of the Case was issued in July 1997. A substantive appeal was filed in October 1997. Subsequently, by rating action of April 1999, the RO denied the claims of entitlement to service connection for contact dermatitis of the of the right forearm and folliculitis of the face, and for prostatitis, determining that they were not well grounded. However, the RO granted service connected for herpes and for shin splints, each of which was assigned a noncompensable evaluation. A review of the claim folder does not reveal that a Notice of Disagreement has been filed relative to the noncompensable ratings assigned for herpes and shin splints by the RO in the April 1999 rating decision. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) [where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability]. Accordingly, only issues of entitlement to service connection for contact dermatitis of the right arm and folliculitis of the face, and for prostatitis are before the Board for appellate consideration at this time. In his March 1996 substantive appeal, the veteran indicated that he wished to be scheduled for a Board or RO hearing. A RO hearing was scheduled for December 1997; however, the veteran did not appear for that hearing. In correspondence from the RO dated in December 1999, the veteran was given the opportunity to submit additional evidence and/or request a hearing. However, no response from the veteran was received. Accordingly, the case is ready for appellate review. FINDINGS OF FACT 1. There is no competent medical evidence of record demonstrating that the veteran has a current skin condition diagnosed either as contact dermatitis of the right forearm or folliculitis of the face. 2. There is no competent medical evidence of record demonstrating that the veteran has a current diagnosis of prostatitis or any other prostate condition. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well-grounded claim of entitlement to service connection for contact dermatitis of the right arm and folliculitis of the face. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran has not submitted evidence of a well-grounded claim of entitlement to service connection for prostatitis. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking entitlement to service connection for contact dermatitis of the right arm and folliculitis of the face, and prostatitis. Given that the law and regulations pertaining to the claims are the same, they will be discussed together. Relevant Law and Regulations Service Connection In general, the applicable law and regulations state that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). 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) (1999). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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. Continuity of symptomatology is required only where the condition noted during service 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. 38 C.F.R. § 3.303(b) (1999). Well grounded claims The threshold question in every case is whether each claim presented is well-grounded under 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). There must be more than an allegation; the claim must be accompanied by supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The statutory duty to assist the veteran in the development of his claims does not arise unless and until a well-grounded claim is presented. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In order for a claim to be well-grounded, the record must contain three types of competent evidence: (1) evidence of the current disability, usually shown by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service, shown by lay or medical evidence; and (3) evidence of a nexus between the in-service injury or disease and the current disability. See Epps v. Brown, 9 Vet. App. 341, 343-44 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed.Cir. 1996). Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is generally required to fulfill the well-grounded claim requirement of 38 U.S.C.A. § 5107(a). See Heuer v. Brown, 7 Vet. App. 379, 384 (1995). Factual Background Service medical records showed that in January 1977, the veteran was seen for complaints of shaving irritation and small red papules on the chin and neck for which an assessment of folliculitis was made. A February 1977 entry indicated that the folliculitis had resolved. In May 1977, the veteran was seen for complaints of a boggy prostate and an impression of urethroprostatitis was made. A diagnosis of prostatitis was made in July 1977. Prostatitis was still shown in records dated in December 1977. The veteran was treated again for folliculitis in January 1978. In February 1978, he was treated for prostatitis. Complaints of irritation of the face after shaving were shown in a June 1978 record. An impression of resolving pseudo-folliculitis barbae was made in June 1978. The service medical records also showed that in March 1980, the veteran was treated for urethritis. Upon re-enlistment examination conducted in January 1986, there were no abnormalities of the skin, aside from a scar, or of the anus and rectum noted. In April 1990, the veteran was treated for a rash on the elbows and right leg which was diagnosed as allergic dermatitis. In April 1991, the veteran was treated for probable prostatitis. Upon medical board evaluation conducted in October 1991, again there were no abnormalities of the skin, aside from a tattoo, or of the anus and rectum noted. In July 1994, the veteran was treated for right forearm itching which had started two days previously. He indicated that he had experienced this on and off for years but only in the hot months. Upon retirement examination conducted in January 1996, an evaluation of the anus and rectum was normal to digital examination. An evaluation of the skin was abnormal due to an erythematous patch on the right ankle. Post-service, a VA genitourinary examination was conducted in October 1997. The veteran reported that he did not have any particular genitourinary problems, but mentioned that he had been treated for an enlarged and possibly inflamed prostate in 1979. The report indicated that the prostate condition had been treated with medication and had cleared up and did not recur thereafter. It was noted that the veteran had no particular irritative urinary symptoms. The examiner stated that there was no evidence of testicular enlargement, tenderness or other abnormality and that the veteran had no difficulties with erections or ejaculations. Physical examination revealed that the prostate was normal in size, shape and consistency. The examiner concluded that there was no significant urologic abnormality. A VA dermatology examination was conducted in October 1997. The veteran gave a 7 year history of severe itching of the right arm which occurred only during the hot months. He indicated that Zostrix creme had been prescribed in May 1997 which afforded him considerable relief. The veteran also reported that he had developed folliculitis of the beard area in 1976. He indicated that he currently had a beard which he could shave about once a month, without recurrence. An examination of the right arm was normal in appearance and the skin in the beard area was normal. Diagnoses of undiagnosed pruritus of the right arm and a history of folliculitis of the beard were made. By rating action of April 1999, the claims of entitlement to service connection for contact dermatitis of the right arm and folliculitis of the face and prostatitis were denied because the RO determined that they were not well grounded. Analysis As discussed above, in order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). Contact dermatitis of the right arm and folliculitis of the face With respect to the disability claimed as contact dermatitis of the right arm and folliculitis of the face, the veteran was treated for folliculitis of the face during service in 1977 and 1978, and in July 1994 when he was treated for a rash of the right forearm. Thus, the second prong of the Caluza analysis, in-service incurrence, has arguably been satisfied. Accordingly, the pertinent inquiries are whether the evidence also establishes that the veteran has a current skin disorder and if so, whether the evidence establishes a nexus between the skin disorders which were treated during service and a current skin disorder. During the VA physical examination which was conducted in October 1997 the right arm was normal in appearance and the skin in the beard area was normal. Diagnoses of undiagnosed pruritus of the right arm and a history of folliculitis of the beard were made. Essentially, no physical disability was shown at that time. In Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992), the Court held that the failure to demonstrate that a disability is currently manifested constitutes failure to present a plausible or well-grounded claim. As indicated during the VA examination, there is no current clinical evidence of contact dermatitis of the arm. Mere itching in and of itself without an accompanying clinical diagnosis is not representative of a disease or disability. A diagnosis of "undiagnosed" pruritus of the right arm definitionally indicates that a clinical diagnosis of a skin disorder of the arm was not made upon VA examination conducted in 1997. The Board is cognizant that the Court of Appeals for Veterans Claims (Court) has held that when the pertinent disorder is subject to fluctuations, the VA's duty to assist includes an adequate examination conducted during an active stage of the disorder. See Ardison v. Brown, 6 Vet. App 405 (1994). However, in this case, even if the Board were to concede the presence of a current skin condition of the right arm, the claim would fail to be well grounded as the evidence of record does not include a competent medical opinion linking a currently diagnosed skin condition to service. The Court has held that where the issue involves medical causation, competent medical evidence which indicates that the claim is plausible or possible is required to set forth a well- grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As is the case here, in the absence of such evidence, the claim fails to be well grounded, and therefore VA is under no duty to assist in providing another VA examination to be conducted during an active stage of the claimed skin disorder. As for the folliculitis of the beard, in the medical history provided by the veteran in 1997, he essentially reported that the condition had resolved. Continuity and chronicity of this condition since the condition was treated in 1977 and 1978 during service has not shown, and as indicated there is no evidence of current disability. As noted above, one element of a well-grounded claim is a presently-existing disability stemming from the disease or injury alleged to have begun in or been aggravated by service. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Absent evidence of a current disability, the claim is not well grounded. The evidence presented does not establish that the veteran has a current clinically diagnosed skin disorder characterized as contact dermatitis of the right arm or folliculitis of the face. In advancing his claim, the veteran essentially contends that he has a current skin disorder. However, as a lay person, the veteran is not competent to render a medical opinion in this regard. Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Boeck v. Brown, 6 Vet. App. 14, 16 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In this case, no competent medical evidence of the current existence of the claimed skin disorder has been presented. Where the determinative issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well grounded claim. Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a). See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Court has held that "[i]n the absence of competent medical evidence of a current disability and a causal link to service or evidence of chronicity or continuity of symptomatology, a claim is not well grounded." Chelte v. Brown, 10 Vet. App. 268 (1997). In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. In Rabideau v. Derwinski, 2 Vet. App. 141 (1992), the Court held that the failure to demonstrate that a disability is currently manifested constitutes failure to present a plausible or well-grounded claim. Consequently, the Board concludes that the claim of entitlement to service connection for a disability claimed as contact dermatitis of the right arm and folliculitis of the face is not well- grounded and must be denied. Prostatitis As is noted above, it is the veteran's predicate obligation to submit a well-grounded claim. In order for the claim to be well grounded, there must have been presented competent evidence of a current disability; a disease or injury which was incurred in service, and a nexus between the disease or injury and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir. 1996)(table); See Watai v. Brown, 9 Vet. App. 441, 443 (1996). With respect to the claimed prostatitis, the service medical records did document that the veteran was treated for prostatitis in 1977 and 1978 and again in April 1991. Thus, the second prong of the Caluza analysis has been satisfied. Accordingly, the pertinent inquiries are whether the evidence also establishes that the veteran has a current prostate condition and if so, whether the evidence establishes a nexus between the prostate condition which was treated during service and a current prostate condition. During a October 1997 VA genitourinary examination, the veteran stated that he did not have any specific genitourinary problems, but mentioned that he had been treated for an enlarged and possibly inflamed prostate in 1979. The report indicated that the prostate condition as treated with medication and cleared up and did not recur thereafter. The examiner stated that there had been no testicular enlargement, tenderness or other abnormality and that the veteran had no difficulties with erections or ejaculations. Physical examination revealed that the prostate was normal in size, shape and consistency. The examiner concluded that there was no significant urologic abnormality. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. Thus, although the veteran received treatment for prostatitis in 1977, 1978 and 1991 there has been no indication of a recurrence of that condition since 1991. There was no evidence of any prostate problems upon the veteran's retirement from service in 1996 and the record does not include any post service clinical evidence revealing complaints, treatment or a diagnosis of any prostate problem. In summary, there is no current clinical evidence of prostatitis or any other disorder of the prostate; there is only a history of that condition. The veteran does not have any current clinical complaints or symptoms related to the prostate. Consequently, the Board concludes that the claim of entitlement to service connection for a disability claimed as prostatitis is not well-grounded and must be denied. See Rabideau, supra. ORDER A well-grounded claim not having been submitted, entitlement to service connection for contact dermatitis of the right arm and folliculitis of the face is denied. A well-grounded claim not having been submitted, entitlement to service connection for prostatitis is denied. Barry F. Bohan Member, Board of Veterans' Appeals "Pruritus is 'localized or generalized itching due to irritation of sensory nerve endings from organic or psychogenic causes' . . . Webster's Medical Desk Dictionary 583." Stephens v. Principi, 3 Vet. App. 513, 514 (1992). The Board is of course cognizant of the law and regulations pertaining to undiagnosed illnesses in Persian Gulf veterans. See 38 U.S.C.A. § 1117 (west 1991 and Supp. 1998); 38 C.F.R. § 3.317 (1999). In this case, there is no evidence that the veteran served in the Persian Gulf, and he does not so contend. The VA examination did not mention Persian Gulf service, and it appears that the examiner did not have such in mind when he used the term "undiagnosed".