Citation Nr: 1122140 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 08-23 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for actinic keratosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from June 1983 to April 1991; March 2003 to May 2004; and November 2005 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Nashville, Tennessee. Thereafter, the Denver, Colorado, RO assumed jurisdiction. The Veteran appeared at a Travel Board hearing at the Denver RO before the undersigned Veterans Law Judge in March 2011. A transcript of the hearing is of record. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran his current actinic keratosis is of service origin. CONCLUSION OF LAW Actinic keratosis was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1117, 1131, 1137 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.317 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Introductory Matters In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit)(as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision on this claim, further assistance is not required to substantiate that element of the claim. Service Connection Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A.§§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. see Grover v. West, 12 Vet. App. 109, 112 (1999). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The Board may not reject the credibility of the veteran's lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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). Service connection may also be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest 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, 2011. 38 U.S.C.A. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A "Persian Gulf veteran" is one who served in the Southwest Asia Theater of Operations during the Persian Gulf War. See 38 C.F.R. § 3.317. A "qualifying chronic disability" includes: (A) an undiagnosed illness, (B) the following medically unexplained chronic multi symptom illnesses: chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary of VA determines is a medically unexplained chronic multi-symptom illness; and (C) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). Objective indications of a 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. Disabilities that have existed for six 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. A disability referred to in this section shall be considered service connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(2),(5). Compensation shall not be paid under 38 C.F.R. § 3.317 if: (1) the undiagnosed illness was not incurred during active service in the Southwest Asia Theater of Operations during the Persian Gulf War; or (2) the undiagnosed illness was caused by a supervening condition or event that occurred between your most recent departure from service in the Southwest Asia Theater of Operations during the Persian Gulf War and the onset of the illness; or (3) the illness is the result of willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). With claims for service connection for a qualifying chronic disability under 38 C.F.R. § 3.317, a veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). When determining whether a qualifying chronic disability became manifest to a degree of 10 percent or more, the Board must explain its selection of analogous Diagnostic Code. Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). Compensation may be paid under 38 C.F.R. § 3.317 for disability which cannot, based on the facts of the particular veteran's case, be attributed to any known clinical diagnosis. The fact that the signs or symptoms exhibited by the veteran could conceivably be attributed to a known clinical diagnosis under other circumstances not presented in the particular veteran's case does not preclude compensation under 38 C.F.R. § 3.317. VAOPGCPREC 8-98. As the Veteran has been diagnosed as having actinic keratosis, he does not currently have an undiagnosed illness. Thus, the provisions of 3.317 are not for application. A review of the Veteran's service treatment records reveals that in a January 2004 note it was indicated that he had been evaluated by dermatology approximately 2 years previously for numerous actinic keratosis and had been treated with cryotherapy. The Veteran stated that his actinic keratosis had worsened since being deployed to the desert in Iraq. In a February 2004 dermatology report, R. Roth, M.D., a physician at the University of Pennsylvania Medical Center, indicated that he examined the Veteran at the dermatology clinic. Physical examination revealed numerous keratoses on the forehead and sporadic ones on the forearms as well as red papules on the trunk. He was treated with cryotherapy and had 10 actinic keratoses on the forehead, left ear, back, and forearm removed. In a December 2006 informal line of duty determination report, it was noted that the Veteran presented (prior to deployment) for skin check for cancer on February 6, 2006. It was noted that he had had previous deployment to the desert in 2004 and had been treated for facial actinic keratoses lesions on February 16, 2004. The lesions were solar induced. It was indicated that although they might not be directly related to service, aggravation by desert sun exposure could not be ruled out. It was noted that the Veteran had been deployed overseas as a C-130 loadmaster where he was subjected to intense heat and sun conditions on an infrequent basis. The Veteran was observed to have fair skin and it was possible that the time he spent in the sun may have aggravated whatever conditions he had prior to deployment. It was determined that the Veteran's actinic keratosis existed prior to service and was aggravated by service. The Veteran was afforded several VA examinations concerning multiple claims, including his claim for actinic keratosis. As part of an April 2007 VA general medical examination, the Veteran was noted to have actinic keratosis. Physical examination revealed a scaly hypopigmented lesion on the right forearm. The Veteran was also found to have multiple red-shaped domed lesions on his trunk. In conjunction with his claim for an increased evaluation for his service-connected seborrheic dermatitis, the Veteran was afforded a VA skin examination in May 2007. The examiner noted that there were objective findings of seborrheic dermatitis. The examiner stated that other significant findings has been noted on the April 2007 VA general examination. In his March 2008 notice of disagreement, the Veteran stated that he was seen in February 2004 for keratosis, from deployment to Southwest Asia. He indicated that as a result of the deployment and exposure to extreme sunrays, while using SPF 50, he developed actinic keratosis. He noted that he sought treatment for this condition after returning from the deployment. The Veteran indicated that he was again deployed to Southwest Asia in 2005 and again as a result of the sun exposure, the keratosis was aggravated and became worse than before. He stated that as a result of the exposure, he now had lesions on his whole forehead and portions of his nose, cheeks, neck, ears, right arm, and left shoulder. The Veteran reported that the keratosis covered at least 75 percent of his face. He indicated that the condition was painful and unsightly and was due to his exposure to sun while in the desert. The Veteran underwent an additional VA skin examination in September 2008. The examiner noted that the Veteran had actinic keratosis. She observed that the onset of symptoms occurred in 2004 due to excessive sun exposure. The course of condition was intermittent. The Veteran stated that he had scaly actinic keratoses spots on his forehead, neck, ears, shoulder and right arm. He indicated that prior to his active military service, he did not have any issues with his skin. The examiner noted that the Veteran had 10 actinic keratosis lesions treated with cryotherapy in February 2004. She also observed that new actinic keratoses had occurred since that time. Physical examination revealed three actinic keratoses lesions measuring less than 3 millimeters, one on the left temple, one on the right neck, and one on the forearm. The examiner rendered a diagnosis of actinic keratoses resolved. She observed that the current actinic keratosis was not caused by or related to actinic keratosis resolved in active military service. She noted that these were separate lesions that developed independently of each other from sun exposure. In November 2009, the Veteran was seen for a dermatology consult. At the time of the consultation, the Veteran complained of scaly irritated papules on his arms and face. He also complained of dry skin and a rash when his skin would get really dry. The examiner noted a history of extensive sun exposure. Physical examination revealed multiple erythematous, scaly papules on the forehead and temple and a few on the forearms. Diffuse xerosis overlying excoriated papules and a few waxy stuck on papules on the arms were also present. It was the examiner's assessment that the Veteran had actinic keratosis, xerosis, and mild dermatitis. At his March 2011 hearing, the Veteran reported that his actinic keratosis was treated with cryotherapy in service. The Veteran indicated that he was treated for actinic keratosis on two separate occasions while in service. The Veteran stated that this condition would reoccur. He indicated that he had been seeking medical care since his release from service. The Veteran noted having had dermabrasions at the Pensacola, Nashville, and Denver VA clinics. The record thus shows the Veteran was diagnosed and treated for actinic keratosis on several occasions during his periods of active service. In a December 2006 line of duty report, it was noted that the Veteran's actinic keratosis, first treated in February 2004, was aggravated by his period of service beginning in November 2005; and the Veteran was diagnosed as having actinic keratosis at the time of his April 2007 VA examination. In September 2008, the Veteran was again diagnosed as having actinic keratosis as he was at a November 2009 dermatology consult with an extensive history of sun exposure being reported at that time. The Veteran has testified as to having had problems and having sought treatment for his actinic keratosis on a continuous basis since service, with dermabrasions being performed at three separate VA Medical Centers. The September 2008 VA examiner indicated that the actinic keratosis in service resolved and that the then currently diagnosed actinic keratoses, present at the time of the September 2008 VA examination, were separate lesions that developed independently of each other from sun exposure. However, based upon the inservice findings and treatment of actinic keratosis, the findings of actinic keratosis at both the April 2007 and September 2008 VA examinations, and the diagnosis of actinic keratosis with a history of extensive sun exposure being noted at the November 2009 dermatology consult, along with the Veteran's testimony of continued problems and treatment for actinic keratosis, it cannot be stated that the preponderance of the evidence is against the claim. For a Veteran to prevail in his claim it must only be demonstrated that there is an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for benefits to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, at 54 (1990). As such, service connection is warranted for actinic keratosis. ORDER Service connection for actinic keratosis is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs