Citation Nr: 0810431 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 04-42 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a skin disorder, to include cystic acne and residuals thereof. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The veteran had active military service from February 1986 to November 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In connection with this appeal, the veteran testified at a personal hearing before a Decision Review Officer in March 2005; a transcript of the hearing is associated with the claims file. The case was brought before the Board in May 2007, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the veteran in the development of his claims, to include providing the veteran with a VA examination. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. FINDINGS OF FACT 1. The veteran is presumed sound upon entry to active duty service. 2. The competent medical evidence of record demonstrates that the veteran's cystic acne with residual scarring is related to active duty service. CONCLUSION OF LAW Cystic acne with residual scarring was incurred in active duty service. 38 U.S.C.A. §§ 1111, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the Veterans Claims Assistance Act (VCAA) of 2000 (codified at 38 U.S.C.A. §§ 5100, 5102- 5103A, 5106, 5107, 5126 (West 2002)). Analysis Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled in service, except for defects, diseases, or infirmities noted at the time of entrance, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C.A. § 1111 (West 2002). According to 38 C.F.R. § 3.304(b) (2007), the term "noted" denotes only such conditions that are recorded in examination reports. The existence of conditions prior to service reported by the veteran as medical history does not constitute a notation of such conditions, but will be considered together with all other material evidence in determining the question of when a disease or disability began. See 38 C.F.R. § 3.304(b)(1) (2007). Determinations of whether a condition existed prior to service should be "based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to ... manifestations, clinical course, and character of the particular injury or disease or residuals thereof." Id. A preexisting disease will be presumed to have been aggravated by military service when there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2007). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b) (2007); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The law further provides that the burden to show no aggravation of a pre-existing disease or disorder during service is an onerous one that lies with the government. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Importantly, the VA Office of the General Counsel determined that VA must show by clear and unmistakable evidence that there is a pre-existing disease or disorder and that it was not aggravated during service. See VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. The Board must follow the precedent opinions of the General Counsel. 38 U.S.C.A. § 7104(c). Also pertinent is the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F.3d 1089 (Fed.Cir. 2004), issued on June 1, 2004, summarizing the effect of 38 U.S.C.A. § 1111 on claims for service-connected disability: When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C.A. § 1153. If this burden is met, then the veteran is not entitled to service- connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. On the other hand, if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417. Wagner, 370 F. 3d at 1096. It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2007). In the instant case, while the veteran's May 1985 service entrance examination does not note a history of cystic acne. Therefore, he is presumed sound at service entrance. The Board nevertheless finds that the evidence of record clearly and unmistakably demonstrates the veteran's skin disorder preexisted active service. In this regard, the veteran testified at his RO hearing that his skin condition delayed his entry into service. See hearing transcript at 1. In addition, service medical records dated February 14, 1986, ten days after the veteran's entry into active service, note the veteran as having a recent six month history of Accutane treatment for cystic acne. Finally, in July 2007, a VA examiner found that "medical evidence shows that the veteran was treated for cystic acne prior to [his] entering active duty. For these reasons, the Board finds the veteran's skin disorder clearly and unmistakably preexisted his active service. Turning to the question of aggravation, the Board notes that the veteran was provided a VA examination for his cystic acne in July 2007. The examination report notes that the veteran had suffered a recurrence of his skin disorder in service, but that this recurrence "should be considered a natural progression of the condition during service." However, the examiner was unable to provide an opinion as to whether the veteran's skin disorder increased in severity during service without resorting to mere speculation. As such, the Board finds that there is not clear and unmistakable evidence to establish that the veteran's cystic acne was not aggravated beyond its normal progression during active service. Therefore, the veteran is presumed sound upon entering service. See Cotant, Wagner, supra. If the government fails to rebut the presumption of soundness under 38 U.S.C.A. § 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); see also 38 C.F.R. § 3.322. After a careful review of the record, the Board concludes that the competent evidence of record demonstrates that the veteran's cystic acne with residual scarring is etiologically related to cystic acne he suffered during his active service. Service medical records indicate the veteran sought treatment several times in service for cystic acne. February 1986 treatment records note a "long history of severe cystic acne." June 1986 treatment records indicate the veteran suffered from inflamed cystic nodules on his neck. The veteran underwent a procedure in November 1986 to cut and drain an abscess. January 1987 treatment records note a long history of acne vulgaris. Finally, July 1987 treatment records note a history of cystic acne and a furnicle on the base of his neck. The veteran testified at his March 2005 RO hearing that he would develop boils on his neck and, when they got big enough, they would cause him to lose feeling in his shoulders and arms. He testified that these boils would eventually have to be lanced. A May 2004 VA examination report indicates residual scarring on the veteran's neck due to multiple incisions and drainage of these boils. Finally, a July 2007 VA examiner found status post treatment with Accutane for nodular cystic acne in service. In addition, the examiner found status post incision and drainage of furuncles involving either side of the neck, in the service and presently reoccurring two to three times a year. In sum, the evidence of record indicates the veteran suffered from cystic acne and furuncles on his neck during active service, and two VA examinations have found the veteran's current skin disorder and residuals thereof to be a recurrence of the skin disorder he suffered while in active service. As such, the Board finds that service connection for a skin disorder is warranted in the present case. ORDER Service connection for cystic acne with residual scarring is granted. ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs