Citation Nr: 1300678 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 08-12 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a chronic skin disorder, including sebaceous cysts and acne vulgaris. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to April 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part, denied service connection for chronic sebaceous cyst and acne vulgaris. In September 2011, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. The Board has reviewed the contents of the Veteran's Virtual VA file and found no medical or other evidence pertinent to this appeal that is not in the claims file. FINDING OF FACT The evidence of record, to include competent medical opinion evidence and lay evidence, is at least in equipoise as to whether the Veteran has a chronic skin disorder, to include sebaceous cysts and acne vulgaris, that is caused by his military service. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the Veteran has a chronic skin disorder, including sebaceous cysts and acne vulgaris, that was incurred in active military service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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 Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (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). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The Board has considered this legislation, but finds that, given the favorable action taken below; no discussion of the VCAA at this point is required. The Merits of the Claim The Veteran dates the onset of his chronic skin disorder, to include sebaceous cysts and acne vulgaris, to the time of his military service. In a September 2005 statement, the Veteran explained that he developed cysts all over his body while on active duty. Upon review of the evidence of record, the Board grants the appeal for service connection for a chronic skin disorder, including sebaceous cysts and acne vulgaris. The evidence not only demonstrates that the Veteran had a chronic skin disorder, namely sebaceous cysts during service, but also that he has the same chronic disorder post service. Service connection may be granted if it is shown the Veteran develops a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. 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 - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). A disorder may also be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). For the showing of chronic disease in service, (or within a presumptive period per § 3.307), 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 or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. When the chronic disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Id. Additionally, medical nexus evidence demonstrating an etiological link is not necessary to establish service connection when evidence, regardless of its date, shows that a Veteran had a chronic condition in service, and that he still has the same chronic condition. Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008). See also 38 C.F.R. § 3.303(b). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). 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). VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a) (West 2002). The Federal Circuit held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); but see Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) ("VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to"). Citing its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. See id. at 1316. Instead, under 38 U.S.C.A. §§ 1154(a) 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, 492 F.3d at 1377 (footnote omitted). For example, a layperson would be competent to identify a "simple" condition like a broken leg, but would not be competent to identify a form of cancer. Id. at 1377 n.4. In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Service treatment records (STRs) reflect complaints, treatment, and a diagnosis for sebaceous cysts. Specifically, in July 1975, the Veteran underwent a surgical consultation for cysts on his scalp. He was assessed with multiple asymptomatic cysts on the scalp with the exception of one cyst. That cyst was incised and drained in August 1975. Upon discharge from service, the Veteran's report of medical examination at separation noted a scar on the back of the Veteran's head due to the removal of a sebaceous cyst in the occipital area. Post-service treatment records are replete with complaints, treatment, and diagnoses for a chronic skin disorder, to include sebaceous cysts and acne vulgaris. In a VA outpatient treatment record dated July 2005, the VA physician reported that the Veteran had chronic acne vulgaris with multiple cysts on the face, scalp, back, and rectal area. He was assessed with acne vulgaris stage 4. In September 2005, the Veteran reported continued pain from cysts on his back, buttocks, and head. See the September 2005 VA outpatient treatment note. At a VA dermatology consultation in August 2008, the Veteran complained of longstanding acne and furuncles since his military service. Examination of the Veteran revealed a few active inflamed acneiform cysts of the right malar area, left brow, left jawline, both postauricular areas, and the right lower abdomen at the waist. He was diagnosed with acne and furunculosis. Two months later, the Veteran returned to the VA dermatology clinic with raised and inflamed cysts on his bilateral post auricular ears, left neck area, left brow, right malar area, right lower abdomen, and three in the scalp. He was diagnosed with steatocystoma multiplex and acne. See the October 2008 VA outpatient treatment note. In May 2006, the Veteran was afforded a VA examination to determine the etiology of the claimed chronic skin disorder. The Veteran reported the onset of sebaceous cysts on his scalp and acne beginning in 1976. After physical examination testing, the VA examiner diagnosed the Veteran with chronic sebaceous cyst and acne vulgaris, "not thought to be as likely related to his military service." As the VA examination opinion described above did not include a rationale in support of the stated conclusion, the claim was remanded to the VA examiner for a clarifying opinion. See the September 2011 Board remand. In October 2011, a VA addendum opinion was provided. After a review of the claims file, the VA examiner diagnosed the Veteran with cystic acne and opined that it is less likely as not that the cystic acne is caused by or related to any skin condition in service. As to whether the Veteran's sebaceous cyst and acne vulgaris are related to his military service, the VA examiner indicated that sebaceous cyst and acne are separate disesase processes and are treated differently. The Board finds that the May 2006 VA opinion is of minimal probative value because it is a bare conclusion, with no supporting reasoning or rationale. Miller v. West, 11 Vet. App. 345, 348 (1998). The Board also finds the October 2011 VA opinion is of minimal probative value because the VA examiner failed to acknowledge the post-service treatment and diagnoses of cysts, as well as the diagnosis of chronic sebaceous cyst at the May 2006 VA examination. It is noteworthy that some chronic conditions are subject to active and inactive stages. See e.g., Ardison v. Brown, 6 Vet. App. 405, 408 (1994). Additionally, in VA outpatient treatment records and in a September 2005 personal statement, the Veteran has complained of cysts since his military service, and the Board finds the Veteran's statements throughout the appeal to be credible. See Reonal v. Brown, 5 Vet. App. 458, 461 (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Given that the record contains a diagnosis of chronic sebaceous cyst and his clinical history of treatment for a chronic skin disorder, to include sebaceous cyst and acne vulgaris, both during and after service, the evidence establishes a chronic skin disorder that began during his military service. Accordingly, resolving doubt in the Veteran's favor, the evidence supports service connection for a chronic skin disorder, including sebaceous cysts and acne vulgaris. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board does not express an opinion as to the severity of the chronic skin disorder, including sebaceous cysts and acne vulgaris, for the purpose of assigning a disability rating, as the RO will undertake this decision on implementation of this action. ORDER Service connection for a chronic skin disorder, including sebaceous cysts and acne vulgaris, is granted. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs