Citation Nr: 1310658	
Decision Date: 04/01/13    Archive Date: 04/11/13

DOCKET NO.  10-31 982	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in White River Junction, Vermont


THE ISSUE

Entitlement to service connection for skin disability.


REPRESENTATION

Appellant represented by:	Penelope E. Gronbeck, Attorney 


WITNESSES AT HEARING ON APPEAL

The Veteran and C.C.


ATTORNEY FOR THE BOARD

C. Fetty, Counsel


INTRODUCTION

The Veteran performed active military service from July 1967 to January 1969. 

This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction.

In December 2010, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the proceeding is of record.  

When this case was before the Board in June 2011, it was remanded for further development.  While the case was in remand status, the appeal for service connection for posttraumatic stress disorder was resolved by a May 2012 Decision Review Officer decision granting service connection for that disability.

The case has been returned to the Board for further appellate action on the Veteran's claim for service connection for skin disability.


FINDING OF FACT

The Veteran's current skin disability, classified as Xerosis of the lower extremities and post-inflammatory hyperpigmentation, originated during active service.  


CONCLUSION OF LAW

Skin disability, currently classified as Xerosis of the lower extremities and post-inflammatory hyperpigmentation, was incurred during active military service.  38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim.  In addition, the evidence currently of record is sufficient to substantiate his claim.  Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012).

Legal Criteria

Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service.  38 U.S.C.A. § 1110, 38 C.F.R. § 3.303.  

Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation in such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310(a) (2012). 

Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  38 C.F.R. § 3.310(b) (2012).  

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Factual Background and Analysis

The National Personnel Records Center has verified that the Veteran served in Vietnam from July 1968 to January 23, 1969.  Although his personnel records do not conclusively establish his participation in combat, he has competently testified that he performed perimeter guard duty and he reported surviving mortar attacks and sniper fire, among other events.  He does not recall precise dates, but he was located at an Army installation at Can Tho.  

According to VAOPGCPREC 12-99, the ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b) requires that a Veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.  See 65 Fed. Reg. 6257 (2000).  Nothing in the language or history of that statute or any VA regulation suggests a more specific definition.  The determination as to what evidence may be satisfactory proof that a veteran "engaged in combat with the enemy" necessarily depends on the facts of each case.  Determining whether evidence establishes that a veteran engaged in combat requires an evaluation of all pertinent evidence and an assessment of the credibility, probative value, and relative weight of the evidence.

The Joint Services Records Research Center confirmed that Can Tho was overrun by enemy forces on January 13, 1969, resulting in multiple US casualties.  The Veteran's unit, an engineer battalion, was assigned to Can Tho at that time.  Because the Veteran's unit was at a location attacked by the enemy, VA may conclude that the Veteran was there also.  See Pentecost v. Principi, 16 Vet. App. 124, 129 (2002) (corroboration of every detail of a stressor under such circumstances, such as the veteran's own personal involvement, is not necessary).  The Board therefore finds that the Veteran is a combat veteran for VA benefits purposes.  The significance of this finding is that although his STRs do not note any complaint of or treatment for a skin disorder, the Veteran's testimony that a skin disease arose during active service will be accepted as fact.  

Although the Veteran has alleged that his skin lesions could be secondary to his service-connected type II diabetes mellitus, the medical evidence shows that his current skin disability is not related to his diabetes.  

According to a December 2009 VA skin compensation examination report, the Veteran reported that an itchy rash developed on the right lower leg in late 1969, after serving in Vietnam.  The Veteran reported that the itchy rash has been located on the right ankle area ever since.  He reported that he first sought treatment for this about two years earlier, at which time, the doctor prescribed a cream.  After applying the cream twice a day for several weeks, the rash disappeared, although the area still itches.  

The December 2009 VA compensation examination report mentions that just above the right lateral ankle, there was a hyperpigmented ill-defined patch with superficial erosion in the center.  Also, there was xerosis of both lower legs.  A stain test was negative for fungus, although the physician noted that two years earlier, tinea corporis was detected.  The physician ruled-out current fungal infection and ruled-out any skin disease that could be secondary to diabetes mellitus.  The diagnoses were xerosis of the lower extremities and post-inflammatory hyperpigmentation in place of a previous rash.  The physician concluded with, "Because there is no documentation of a rash until 2007, I cannot say that his rash is service-connected without resorting to mere speculation."

In view of this medical opinion and the absence of any medical evidence linking the Veteran's skin disability to his diabetes, the Board must conclude that service connection for the disability is not warranted on a secondary basis.

In December 2010, the Veteran testified before the undersigned Veterans Law Judge that he served in Vietnam in the Mekong River Delta area, where the enemy was active.  He testified that he endured sniper fire and mortar fire and that he performed night guard duty that was terrifying.  This testimony supports his claim of combat-veteran status.  Concerning his skin disorder, he testified that ever since active service he has had sores and itching above the right ankle, for which he first sought treatment about 5-years earlier.

The lay testimony is competent with respect to observance of symptoms readily observable and it is credible, as there is no indication of lack of veracity.  Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005).  However, the determination of an issue involving a question of medical expertise requires further analysis of the Veteran's competency.  38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional).  Because the Veteran is competent to report itching and a rash, his testimony of continuous symptoms of such stretching back to active service does suggest a nexus between the current condition and that which arose during active service.  

Moreover, because the VA medical examiner declined to link the current skin disorder to active service based solely upon an absence of documentation in the STRs, and perhaps more importantly, the medical examiner also declined to dissociate the current skin disorder from active service, the Board will place additional weight on the Veteran's competent testimony of continuous symptoms since active service.  

After considering all the evidence of record, including the testimony, the Board finds that the evidence supportive of the claim is at least in equipoise with that against the claim.  Accordingly, service connection is warranted for the Veteran's current skin disability.


ORDER

Service connection for skin disability, currently classified as Xerosis of the lower extremities and post-inflammatory hyperpigmentation, is granted.



____________________________________________
Shane A. Durkin 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs