Citation Nr: 1040625 Decision Date: 10/28/10 Archive Date: 11/04/10 DOCKET NO. 03-08 724A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a skin disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Douglas Massey, Counsel INTRODUCTION The Veteran served on active duty from February to May 1971. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2002 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, among other things, denied service connection for a skin condition. In his December 2002 notice of disagreement (NOD), the Veteran requested a hearing at the RO before a local Decision Review Officer. His hearing was scheduled and twice rescheduled at his request. However, he eventually withdrew his hearing request in a June 2004 letter. He also had indicated in his April 2003 substantive appeal (VA Form 9) that he did not want a hearing before the Board. 38 C.F.R. §§ 20.702, 20.704 (2010). In September 2008, however, the RO received his response to the then most recent supplemental statement of the case (SSOC), which had been issued in July 2008. And although he indicated that he had no other information or evidence to submit, and that he wanted is case returned to the Board for further appellate consideration, as soon as possible, he wrote on the bottom of the form that he still wanted to go before a judge on his case (presumably referring to a Veterans Law Judge (VLJ)). He indicated that he had requested this type of hearing 3 times already, and that he wanted to exercise this right. 38 C.F.R. §§ 20.700(a), 20.703. So in December 2008, in response, the Board sent him a letter requesting that he clarify the type of hearing he wanted before a Veterans Law Judge of the Board. The letter also indicated that if he did not respond within 30 days from the date of the letter, the Board would assume he did not want a hearing and proceed accordingly, deciding his appeal based on the evidence of record. Since he did not respond to that letter, his hearing request was deemed withdrawn. 38 C.F.R. §§ 20.702, 20.704. In May 2007, the Board issued a decision denying additional claims the Veteran had appealed for service connection for diabetes mellitus and headaches. However, the Board remanded his remaining claims - for service connection for a heart disorder and blood clots, a breathing disorder (asthma/bronchitis), and for a skin disorder, to the RO via the Appeals Management Center (AMC) for further development and consideration. Upon receiving the file back from the AMC, the Board issued a decision in March 2009 granting the claim for service connection for a breathing disorder (namely, asthma/bronchitis), but denying the claim for service connection for a heart disorder and blood clots. The Board again remanded the remaining claim for service connection for a skin disorder because there had not been substantial compliance with the Board's prior remand directives concerning this remaining claim. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). All of the requested development of this remaining claim since has been accomplished, however. The AMC since has issued another SSOC in August 2010 continuing to deny this remaining claim, so it is again before the Board. FINDINGS OF FACT 1. There is not the required clear and unmistakable evidence the Veteran had a pre-existing skin disorder such as psoriasis when entering the military, only his self-reported history of the condition preceding his service by some 6 to 7 years, so it must be presumed he was in sound health when entering service - especially since there was no objective indication of such a disorder when examined in anticipation of entering the military. 2. The first objective indication of psoriasis was during the Veteran's service and, indeed, the reason for his premature discharge. 3. The medical evidence is at least in balance for and against the claim as to whether this condition was first shown in service and insofar as whether it has persisted during the many years since. CONCLUSION OF LAW The Veteran's skin disorder - namely psoriasis, was incurred in service. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist VA has duties to notify and assist the Veteran in substantiating this claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). For a claim, as here, pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA also request that he submit any evidence in his possession that might substantiate his claim. See 73 FR 23353 (Apr. 30, 2008). These VCAA notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court made clear that a reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome determinative. In Sanders, the Supreme Court rejected the lower Federal Circuit's framework (see Sanders v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007)) that all VA notice errors are presumptively prejudicial, in part, because it was "complex, rigid, and mandatory." Id., at 1704. The Supreme Court rejected the Federal Circuit's analysis because it imposed an unreasonable evidentiary burden on VA to rebut the presumption and because it required VA to demonstrate why the error was harmless, rather than requiring the appellant - as the pleading party, to show the error was harmful. Id., at 1705-06. The Supreme Court stated that it had "warned against courts' determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record." Id., at 1704-05. Thus, it is clear from the Supreme Court's analysis that, while the Veterans Court may conclude generally that a specific type of error is more likely to prejudice an appellant, the error must nonetheless be examined in the context of the facts of the particular case. Id. Here, in response to his June 2001 claim, the RO sent the Veteran a letter in August 2001 advising him of the type of information and evidence needed to substantiate his claim and apprising him of his and VA's respective responsibilities in obtaining this supporting evidence. The RO sent that letter, incidentally, before initially adjudicating his claim in the November 2002 rating decision at issue in this appeal, so in the preferred sequence. Moreover, following and as a result of the Board remanding this and other claims in June 2006, the AMC sent the Veteran an additional VCAA notice letter in July 2006 to specifically address the holdings in the precedent cases cited above (namely, Quartuccio, Pelegrini II, and Dingess). And following another Board remand of this and other claims in May 2007, the AMC provided still additional VCAA notice later in May 2007, January 2008, and April 2008. Indeed, following the Board's most recent remand of this claim in March 2009, the AMC sent the Veteran even more VCAA development letters later in March 2009 and in February 2010. The AMC also since has readjudicated the claim in the most recent SSOC that was issued in August 2010, including considering any additional evidence submitted or otherwise obtained in response to those additional VCAA notices. So although those additional notices did not precede the initial adjudication of the claim, the claim has been reconsidered since providing all necessary VCAA notice. The timing error in the provision of these additional notices therefore has been rectified ("cured") so as to not, in turn, prejudice the Veteran. VA also fulfilled its duty to assist the Veteran in developing this claim. The RO and AMC obtained his service treatment records (STRs), service personnel records (SPRs), VA and private medical treatment records, and his Social Security Administration (SSA) records. Also, following and as a result of the Board remanding the claim, at least twice, the AMC obtained the requested medical nexus opinions concerning the etiology of the Veteran's skin disorder, including especially in terms of whether it was caused or chronically aggravated by his military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). So although the need for additional medical comment concerning the latter possibility was cited as the reason the Board had to again remand this claim in March 2009, the Board is satisfied there since has been substantial compliance with this remand directive in obtaining this necessary additional medical opinion. See Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008). Thus, as there is no other indication or allegation that any other relevant evidence remains outstanding, which is obtainable, the Board finds that the duty to assist has been met. Regarding this decision that follows, although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. II. Whether Service Connection for a Skin Disorder is Warranted When most recently remanding this claim in March 2009, the Board took the time to lay out the Veteran's contentions, relevant facts, governing statutes and regulations, and precedent cases. As the Board previously indicated in that remand, the central basis of the Veteran's assertion that he is entitled to service connection for a skin disorder is that his psoriasis, although admittedly a pre-existing condition, was nonetheless dormant until he received the immunizations during service, such that his immune system was permanently weakened. In July 2003, VA's General Counsel issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The Federal Circuit Court has adopted the General Counsel's position. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Veteran 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. This holding replaced the previous standard under 38 C.F.R. § 3.304(b), which had required that if a condition was not noted at entry but was shown by clear and unmistakable evidence to have existed prior to entry, the burden then shifted to the Veteran to show the condition increased in severity during service. To assist in making these important determinations, and pursuant to the Board's May 2007 remand, VA furnished the Veteran a compensation examination by an expert allergy immunologist to determine first whether he clearly and unmistakably had an immune system disorder prior to entering the military in 1971, taking into account, among other things, his self-acknowledged history of psoriasis prior to service. This self-reported history, alone, is insufficient to rebut the presumption of soundness at service entrance. See, e.g., Gahman v. West, 13 Vet. App. 148, 150 (1999) (recorded history provided by a lay witness does not constitute competent medical evidence sufficient to overcome the presumption of soundness, even when such is recorded by medical examiners); Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (a layperson's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability pre-existed service); Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a pre-existing condition); see also LeShore v. Brown, 8 Vet. App. 406 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional.) The Board's May 2007 remand further indicated that, if the VA examiner determined the Veteran clearly and unmistakably had a preexisting skin condition, there also must be clear and unmistakable medical evidence this pre-existing skin condition was not chronically aggravated during his military service beyond its natural progression to rebut this presumption of soundness at service entrance. Comment was specifically solicited as to whether any existing immune system disorder he may have had prior to service permanently increased in severity during service as a result of the immunizations he received in 1971. Unfortunately, the VA physician that conducted this requested examination in June 2008, on remand, did not specifically answer these important questions. The examiner only discussed his belief that the Veteran's skin condition, psoriasis, less likely than not was related to the vaccination - noting that, according to the medical treatise literature he had reviewed, the cause of psoriasis is unpredictable. The examiner explained that it usually begins on the scalp or elbows and may remain localized in the original region for an indefinite period or completely disappear, recur, or spread to other parts. Two of the chief features of psoriasis, added this examiner, are its tendency to recur and its persistence. Rarely, however, he went on to note, patients with psoriasis may remain completely free of the disease for years. So although this examiner discounted the notion that the vaccinations in service had caused the Veteran's psoriasis, this examiner had neglected to also address the equally important issues of whether the Veteran clearly and unmistakably had psoriasis prior to beginning his military service and, if he did, whether there also is clear and unmistakable evidence this pre- existing condition was not aggravated by his military service (by those vaccinations, in particular) beyond its natural progression. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence."). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Independent medical evidence is needed to support a finding that the pre-existing disorder increased in severity in service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). The presumption of aggravation applies where there was a worsening of the disability in service, regardless of whether the degree of worsening was enough to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). And 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; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (holding that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability). See, too, Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); and Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). (all holding that mere temporary or intermittent flare- ups of a pre-existing injury or disease during service are insufficient to be considered "aggravation in service", unless the underlying condition, itself, as contrasted with mere symptoms, has worsened). Moreover, in Verdon v. Brown, 8 Vet. App. 529 (1996), the Court held that the presumption of aggravation does not attach even where the pre-existing disability has been medically or surgically treated during service and the usual effects of treatment have ameliorated disability so that it is no more disabling than it was at entry into service. Hence, additional medical comment was needed concerning this because the Veteran is entitled - as a matter of law, to substantial compliance with the Board's remand directives. Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The report of the Veteran's military enlistment examination in February 1971 indicates his skin was normal, and he contemporaneously denied a history of skin diseases. The Board, as mentioned, therefore must initially presume he was in sound condition when entering the military in February 1971, with no prior skin disorder such as psoriasis. The presumption of soundness attaches where there has been an induction examination during which the disability about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id., at (b)(1). See also Quirin v. Shinseki, 22 Vet. App. 390 (2009). The Court, however, has recognized that skin disorders - by their inherent nature, tend to wax and wane, so sometimes are visibly evident whereas other times are not. That is to say, they often are cyclical in manifestation, so it is important to examine the Veteran during an "active" (versus "inactive") stage of the disease, i.e., during an outbreak since they often are subject to remission and recurrence. See Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994). See also Bowers v. Derwinski, 2 Vet. App. 675, 676 (1992) (holding that "it is the frequency and duration of the outbreaks and the appearance and virulence of them during the outbreaks that must be addressed."). The Veteran's STRs note that he was first seen for psoriasis in May 1971, so just 3 months after entering service. His psoriasis at the time involved scattered papulosquamous lesions on his scalp, arms, legs, and trunk. He reportedly had a six to seven year history of this condition, so preceding his entry into service. A Medical Board recommended his discharge from active duty because of his psoriasis. And one entry specifically notes it "EPTS" [existed prior to service], albeit, as mentioned, just apparently based on his self-reported history. His military service resultantly ended that same month. 38 C.F.R. § 3.303(c) recognizes there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. Consequently, with notation or discovery during service of such residual conditions with no evidence of the pertinent antecedent active disease or injury during service, the conclusion must be that they preexisted service. According to this same regulation, conditions of an infectious nature are to be considered with regard to the circumstances of the infection and, if manifested in less than the respected incubation periods after reporting to duty, they too will be held to have preexisted service. Pursuant to the Board's March 2009 remand directive, the Veteran had an infectious disease immunology evaluation in April 2009. The designated VA examiner reviewed the claims file for the pertinent history and examined the Veteran personally before concluding that, although the Veteran's service medical records indicate that he informed a physician that he had a six to seven year prior history of generalized psoriasis, there is no clear and unmistakable evidence that he had psoriasis prior to entering the military. In support of this opinion, this examiner explained that the examination at the time the Veteran entered service (referring to his enlistment evaluation) was within normal limits, and no medical records were available that pre- date his entering the military. This examiner therefore concluded the Veteran had onset of generalized psoriasis while serving in the military, adding there was no clear and unmistakable medical evidence that the psoriasis was not permanently aggravated during his military service. This examiner then went on to note that, since its onset while serving in the military, the condition has been continuous, but that there is no evidence to suggest that the onset of the Veteran's psoriasis is a result of the immunizations that he received in 1971. A VA physician (M.D.) performed that April 2009 infectious disease immunology evaluation and provided that positive opinion and medical comment concerning the merits of this appeal. A nurse practitioner (NP) additionally examined the Veteran in March 2010, but apparently without initially reviewing the claims file because this NP was under the mistaken impression that his additional examination of the Veteran was instead to evaluate the severity of the psoriasis in relation to a claim for an increase in the rating for this condition (so not to establish service connection, which first needed to be done). The resultant clinical findings therefore primarily concerned the extent and severity of this condition, the modalities of treatment, and consequent functional impairment. This NP submitted an addendum statement in May 2010 addressing the correct issue (service connection, not the appropriate rating since the psoriasis had not been service connected). Upon reviewing the file, this NP took note of the prior VA examinations in June 2008 and April 2009, and their respective findings and opinions, as well as the specifics concerning the vaccinations the Veteran had received in service. This NP then observed that he did not find any other supporting documentation regarding psoriasis many years later in September of 2004 at the Sumter VA Clinic. In rendering an opinion, this NP concluded the current diagnosis of psoriasis is less likely than not related to the Veteran's service or aggravated by his service. And in discussing the rationale for this unfavorable opinion, this NP indicated he could not find any documentation of psoriasis until 9 years after the Veteran left the military. This NP added that the Veteran had an acute, self-limiting, localized reaction due to immunizations that resolved in the service, and that the NP did not find any research to connect psoriasis to that kind of reaction. Another VA compensation examiner, who is a physician (M.D.) rather than NP, provided further comment concerning this appeal in July 2010. He indicated that he, too, had reviewed the claims file for the pertinent history, including the reports of the previous compensation and pension examinations, although he did not have the opportunity to also examine the Veteran personally. This commenting physician indicated his statement was a brief addendum to the exam performed by the NP. He then referred to the mention of a previous history of psoriasis in the Veteran's military record of approximately 6 to 7 years duration, so placing the onset of this condition at approximately 12 years of age. He also noted the concern that some immunizations in service had worsened this pre-existing psoriasis. Ultimately, though, he concurred with the previous findings that the diagnosis of psoriasis is less likely than not related to the Veteran's military service, or aggravated by his service. This additional unfavorable medical nexus opinion notwithstanding, the only mention of pre-existing psoriasis is the Veteran's self-reported history of this condition during service when he acknowledged he had had it for about 6 to 7 years, so since before his military service. But, again, his mere lay concession, alone, is insufficient to show he clearly and unmistakably had this condition prior to service, especially since there was no objective indication of it during his military enlistment examination. And, indeed, this apparently is precisely why the April 2009 VA examiner (an M.D.) concluded there was insufficient medical evidence in the file to definitively say the Veteran had this condition prior to service. Moreover, because that April 2009 VA examiner's opinion that VA has not met this burden of proof in establishing the existence of psoriasis prior to service is in stark contrast with the subsequently obtained, and contrary, opinions of the NP examiner in May 2010 and the additional MD examiner in July 2010, it cannot be said there is agreement or consensus on this determinative issue. Because, for all intents and purposes, there was no pre-existing psoriasis, the issue of aggravation is no longer in play because there was no pre-service disability to possibly worsen. Rather, it is presumed the Veteran was in sound health when entering service and had no skin disorder. The only remaining consideration, then, is whether his skin disorder initially manifested while in service. And the April 2009 VA examiner has offered the best explanation of the circumstances presented. While he acknowledged no correlation between the psoriasis and the immunizations the Veteran received in service (so, in effect, discredited this notion and in the process agreed with the May 2010 NP examiner and July 2010 MD examiner), he nonetheless conceded that the first credible indication of psoriasis was once the Veteran began serving on active duty. So he concluded this condition was incurred in service, also indicating it has persisted rather continuously during the many years since to establish the required linkage between the current diagnosis and the diagnosis in service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). The April 2009 VA examiner's opinion is most probative because, in comparison to the opinions obtained in June 2008, May 2010, and July 2010, he is the only examiner that addressed all relevant issues - and, most importantly, under the correct legal standard, including especially as mentioned regarding the extent of evidence (clear and unmistakable) required to establish pre- existing psoriasis and, in turn, rebut the presumption of soundness when entering service. See Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion [] must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the Veteran's position); and Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). It further deserves mentioning that, to the extent the May 2010 NP examiner expressed doubt there was the required evidence of chronicity of disease or injury in service when referring to no additional documentation of psoriasis until some 9 years after service, establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of etiologically linking any current disability to service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) and Clyburn v. West, 12 Vet. App. 296, 302 (1999). In Dalton v. Nicholson, 21 Vet. App. 23 (2007), the Court found that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion. Moreover, in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuity Court recognized lay evidence as potentially competent to support presence of disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as treatment records. So the mere absence of this type of evidence in the file is not determinative or dispositive of the claim. It further warrants pointing out that, in Barr v. Nicholson, 21 Vet. App. 303, 305 (2007), the Court held 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. Id. Other precedent cases have indicated that 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, there is no disputing the Veteran has psoriasis and even did while in service. And he is competent to say he has experienced recurrences of it in the intervening years, including when not actually documented by treatment records, especially since the April 2009 VA examiner has agreed that this indeed occurred. As absolutely accurate determination of etiology is not a condition precedent to granting service connection, nor is obvious or definite etiology. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The evidence concerning this need only be in relative equipoise, meaning about evenly balanced for and against the claim. 38 C.F.R. § 3.102. This is such a balance in this particular instance, so service connection for the psoriasis is warranted. ORDER Service connection for psoriasis is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs