Citation Nr: 1102054 Decision Date: 01/18/11 Archive Date: 01/26/11 DOCKET NO. 08-11 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a skin disorder. REPRESENTATION Appellant represented by: T. Edmund Spinks WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. G. Alderman, Associate Counsel INTRODUCTION The Veteran had active service from February 1977 to June 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran provided testimony before the undersigned Veterans' Law Judge sitting in St. Petersburg, Florida in April 2009. A transcript of the hearing has been associated with the claims file. In September 2009, the Board reopened the claim seeking service connection for a skin condition and remanded it for additional development, which has been completed. FINDING OF FACT The Veteran's skin disorder did not have onset during and is not otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for a skin condition have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2010). To establish a right to compensation for a present disability, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2010). In this case, the Veteran seeks service connection for a skin condition of her face. Service treatment records (STRs) show that in February 1979 the Veteran had bumps on her face and was vomiting. A December 1983 record states that the Veteran suffered a skin rash associated with the use of long sleeved fatigues. STRs dated May 1986 indicate that the Veteran had acne on her face. September and October 1987 STRs note skin tags and moles on her neck, some of which were removed. There is no further mention of a skin condition in the STRs. The Report of Medical History (RMH) form, completed in February 1994 for retirement purposes, shows that the Veteran indicated normal skin. In the physician's summary, he did not indicate that the Veteran had any chronic skin conditions. A separation examination is not of record. Overall, because her last treatment for a skin condition was in 1987 and because she did not indicate suffering a skin condition at the time she completed her separation RMH, the Board finds that the STRs weigh against finding that she had a chronic skin condition during service. Subsequent to service, the first evidence of treatment for a skin condition is dated May 2001, from private provider H.S.I.M. This treatment record states that the Veteran had hyperpigmentation with irregular pigment loss along the hairline and cheeks of her face. The diagnosis was pigment changes to the face, etiology unknown, weighing against the claim for service connection. A VA examination was conducted in March 2005 for another disability; however, the examiner noted pigmentation of the cheeks at the angle of the jaw. A June 2005 VA outpatient treatment record diagnosed hypopigmented skin of the face, possible vitiligo or tinea. An August 2005 record showed a provisional diagnosis of tinea versicolor. None of these records indicated the etiology of the skin condition. Private treatment records from Dr. S.A.S., M.D., dated August 2005, show that the Veteran had hypopigmented, non-scaly areas on the face as well as irritated lesions on the left forearm, right ankle, and upper medial thigh. The clinical impression was hidradenitis suppurativa of the upper medial thighs, tinea versicolor of the face versus post inflammation hypopigmentation, and to rule out "ISK versus malice." Etiology was not discussed. A September 2005 record from Dr. J.H., M.D., states that the Veteran reported a history of hidradenitis suppurativa. She also said her biopsies of the arm and leg revealed seborrheic keratoses and that she had a 10 year history of hypopigmented areas on both cheeks. The physical evaluation revealed discrete hypopigmented macules with subtle rims of hyperpigmentation. Dr. J.H. said that the findings are in the background of subtle reticulated hyperpigmentation on both cheeks. The diagnosis was pigmentary changes, cheeks. The etiology was not discussed. December 2007 and June 2008 VA outpatient treatment records show a past medical history of tinea versicolor but the physical evaluations revealed no rash, bruising, itch or lesions. An August 2008 record noted scaring of the upper inner thighs. March and April 2009 records indicate no skin abnormalities on evaluation. A July 2009 record shows that the Veteran had an area of excoriation on her upper back with a small pustule. None of these records indicated the etiology of the skin conditions. The Veteran had a VA examination in April 2010. The examiner reviewed the claims file and STRs and noted the 1987 removal of skin tags as well as her complaints of oily skin in 1986 and bumps on the face in 1979. The examiner observed many small areas of hypopigmentation, oval and circular in appearance, on both cheeks. The remainder of her facial skin and skin of her arms was tanned and smooth. No skin tags were found. The diagnosis was areas of facial hypopigmentation on both cheeks and tanned upper extremities and face. In the opinion, the examiner stated that it is not likely that the Veteran's claimed a facial skin condition is the same as or a result of the skin conditions treated during service. He specifically found no relationship between the skin tags removed during service and the current skin condition. His opinions were based upon on the fact that STRs show no treatment of skin tags after the 1987 removal and show no evidence of a skin disorder involving areas of facial hypopigmentation. Accordingly, the examiner's opinion weighs against her claim. In addition to the medical evidence, the Veteran submitted personal statements and statements from friends and family members in support of her claim. In a June 2003 statement, the Veteran reported blotchy brown areas on both sides of her face. She said the condition had onset about eight years ago, or 1995, but covered only a small area at that time. She also noted blood blisters on her thighs and stomach which had onset three years ago, in 2000, and that the blisters left scars on her inner thighs. In an October 2005 statement, she said that her skin condition started the summer she left active service, in 1994, and that the condition could be the result of exposure to chemicals used while performing her active duty service or from the chemicals used to clean her uniforms. In a May 2007 statement, the Veteran testified that her condition had worsened, spreading down her jaw line to the neck area. During her April 2009 hearing before the Board, the Veteran said that just prior to separation from service, she noticed spots on her face. A couple of months later she noticed that the brownish spots on her face had worsened. In August or September 1994 she took her son for a check-up at the health department where she was told that her skin condition was a fungus and to treat it with antifungal cream. She tried multiple remedies, none of which have cured her skin condition, which comes and goes. The Veteran also submitted buddy statements. An October 2005 statement from R.E. indicates that she met the Veteran in 1983 and that she witnessed the brown and white spots on the Veteran's face in 1995. A letter from J.M., dated February 2006, states that she met the Veteran in 1974 and that she and the Veteran have remained friends since that time. She said she saw the Veteran shortly after her retirement and that she had brown and white spots on her face. She said the Veteran had always had a good complexion but after retirement, her face looked dirty. Also of record is a statement from the Veteran's son, E.S., dated February 2006, which indicates that the Veteran started getting the brown blotches on her face before she retired from active service. He said she was assessed with a fungal condition in 1994. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 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, (e.g., a broken leg), (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 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). In this regard, the Court of Appeals of Veterans Claims (Court) has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the Board finds that the Veteran is competent to report the onset of her skin condition and its symptomatology because the condition is readily observable by a layperson. Unfortunately, while competent to report her symptoms, the Board finds that her statements pertaining to the onset of the skin condition are not credible as they lack consistency. Specifically, the Veteran has reported that the condition had onset during service, within two months after service, and one year after separation from service. Further, while she testified that the skin condition had onset just prior to separation from service, her RMH completed at separation did not show that either she, or the observing physician, observed a skin disorder, undermining her credibility as to this issue. Simply, the Veteran's statements and testimony lack consistency as to the onset of the disorder. The Board also reviewed the buddy statements and finds that the "buddies" are competent to report what they observed. In this case, each "buddy" observed the Veteran's face and noted the discoloration. Unfortunately the statements from R.E. and J.M. indicate that they observed the condition after the Veteran separated from service, weighing against the claim. The Veteran's son indicated that he noticed the skin discoloration before she left service, which weighs in favor of the Veteran's claim. Unfortunately, the Board finds that the preponderance of the evidence weighs against the Veteran's claim. As noted above, STRs show that the last in-service treatment for a skin condition was in 1987 for skin tags. STRs do not show treatment for skin discoloration. She did not indicate and a physician did not find that she had a chronic skin condition at separation from service. The first medical evidence of a skin disorder is dated May 2001, almost seven years after separation from service and approximately 14 years after her in-service treatment for skin tags, which weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). More importantly, the VA examiner found no relationship between the Veteran's current skin condition and service. Specifically, he said that she did not exhibit skin discoloration during service and that there is no relationship between her current skin discoloration and her skin tags, which were removed during service. The Board considered the lay evidence as to onset and etiology of the skin condition, but finds that the medical evidence outweighs the lay testimony. Each layman indicated a different period of onset or observation, and while the Veteran's son indicated that the condition had onset during service, the first indication of treatment for the skin condition is dated seven years after separation from service, weighing against a finding of chronicity of symptomatology. In this case, the Board gives more weight to the VA examiner's opinion and finds that the Veteran's current skin discoloration is not related to active service. For the above reasons, the Board finds that service connection for a skin condition is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2010). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction, or regional office (RO). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to provide the claimant with notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in December 2005 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient treatment records. The Veteran submitted private treatment records, statements, and buddy statements as was provided an opportunity to set forth her contentions during the hearing before the undersigned Veterans Law Judge. She was afforded a VA medical examination in April 2010. Significantly, neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for a skin disorder is denied. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs