Citation Nr: 1311905 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 05-16 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a skin condition of the face, including residuals of removal of multiple keratoses. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty from June 1963 to June 1967. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified in support of this claim during a hearing held before the undersigned Acting Veterans Law Judge in Washington, D.C. in September 2008. In October 2008, August 2010 and April 2012, the Board remanded this claim to the RO for additional development. In August 2010, the Board also considered and denied a claim for service connection for a separate skin disorder, or more precisely, a skin rash affecting other than the Veteran's face. Given that decision, the Board now confines its discussion below to the skin on the Veteran's face. A review of the Virtual VA paperless claims processing system (Virtual VA) reveals no other pertinent documents for consideration in support of this claim. Virtual VA includes VA treatment records dated through 2012, which are not in the claims file, but the RO considered these records in support of this claim in a supplement statement of the case dated May 2012. FINDING OF FACT A skin condition of the face is not related to service. CONCLUSION OF LAW A skin condition of the face was not incurred in or aggravated by active service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). A. Notice The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). Notice under the VCAA must be provided a claimant prior to an initial unfavorable decision by the agency of original jurisdiction. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004). The RO in this case sent the Veteran letters dated in April 2001, May 2002, August 2002, September 2002, June 2005, August 2007, February 2008, April 2008, November 2008, January 2009, September 2009 and April 2012, some after initially deciding the Veteran's claim. Those letters are therefore untimely. The RO cured this timing defect later, however, by readjudicating the Veteran's claim in a supplemental statement of the case issued in May 2012. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007). These letters satisfy the content requirements of the VCAA. They informed the Veteran of the evidence needed to substantiate his claim, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated that it was reviewing his claim pursuant to this duty. The letters included all necessary information on disability ratings and effective dates. They identified the evidence the RO had requested and/or received in support of the Veteran's claim, the evidence that had not been received despite the RO's requests, and the evidence it was responsible for securing. They noted that the RO would make reasonable efforts to assist the Veteran in obtaining all outstanding evidence provided he identified its sources, but that it was the Veteran's responsibility to ensure VA's receipt of all pertinent evidence. VA provided the Veteran further notice in September 2008, during his hearing before the undersigned Acting Veterans Law Judge (AVLJ). Specifically, the Board informed the Veteran that if his skin condition is one typically associated with Agent Orange and he was in country in Vietnam, he might automatically get service connection for the condition; otherwise, he needed to submit a competent link, in the form of a medical opinion, relating the condition to service. See transcript at 9-10. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that, pursuant to 38 C.F.R. § 3.103(c)(2), the VLJ who chairs a hearing must satisfy two duties, including : (1) fully explaining the issue; and (2) suggesting the submission of evidence that may have been overlooked. Here, as previously indicated, the presiding AVLJ noted the nature of a service connection claim (requires evidence relating a current condition to service) and explained what was needed to satisfy the claim on either a direct or presumptive basis. As well, after the Veteran's representative indicated that the Veteran was seeing a private dermatologist, the AVLJ informed the Veteran how he should proceed in ensuring that the Board had all records of his dermatological treatment. See transcript at 10-11. The AVLJ then remanded the claim on three occasions and in each REMAND identified the missing element of the claim, that is, competent evidence of a nexus between any current skin disorder and the Veteran's active service. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of this claim, and is not prejudiced by any technical notice deficiency along the way, including the previously mentioned untimely notices. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir., 2004). Neither the Veteran nor his representative asserts that VA failed to comply with VCAA's notice provisions or the requirements set forth in Bryant. During the hearing, the AVLJ discussed with the Veteran and his representative the evidence needed to support this claim and their conversation in this regard demonstrates that the Veteran had knowledge of the elements necessary to substantiate his claim. B. Assistance VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO attempted to obtain all evidence the Veteran identified as being potentially pertinent to his claim, including service and post-service treatment records. In addition, the RO afforded the Veteran a hearing, during which he testified as to the onset of his skin condition, and multiple VA examinations, during which examiners addressed the etiology of the Veteran's skin complaints, and obtained a medical opinion in support of this claim. The Veteran does not now contend that the hearing or VA examinations were inadequate or that further opinion is needed. Instead, in a written statement signed in November 2011, he asks the RO to return this case to the Board as he has no other information or evidence to submit in support of this claim. II. Analysis The Veteran seeks a grant of service connection for a skin disorder on his face on either a direct or presumptive basis, the latter as due to in-service herbicide exposure. In his initial application for compensation, attached written statements, a VA Form 9 (Appeal to Board of Veterans Appeals) dated May 2005, and written statements dated July 2005, November 2006, May 2009 and May 2010, he characterized the disorder as a malignant mole on his left cheek. He noted that, in 1964, he presented to sick bay at Cory Field in Pensacola, Florida for treatment for the mole and that, after that visit, he had no follow up. The Veteran later indicated that he had had very sensitive skin since Vietnam and that, as of 2005, he still had a skin condition affecting, and producing growths on, multiple areas of his body, including his face. Allegedly, in 2009, he had three growths biopsied, the positive results of which necessitated excision. He claims that, in addition, a dermatologist sprayed other skin cancers. During his September 2008 hearing, the Veteran testified that he began experiencing rashes on his body during boot camp, a condition thought to be due to wool uniforms, and then noticed growths on his skin following service in Vietnam. Allegedly, while in DaNang for 14 months, he was exposed to the spraying of chemicals. He testified that the growths itched, occasionally necessitated excision, and resulted in spots that temporarily stopped itching when he pulled out the dried hairs located there. He testified that some of the growths were malignant and that dermatologists treated the others with sprays, which did not help with recurrences. See transcript at 7-10. The Board acknowledges the Veteran's assertions, but considering them in conjunction with the medical evidence of record, finds that the preponderance of the evidence does not support a grant of service connection for a skin disorder of the face, including residuals of removal of multiple keratoses, on a direct or presumptive basis. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). To prevail on the issue of service connection, there must be competent evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Once evidence is determined to be competent, its credibility must be evaluated. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence). Subsequent manifestations of a chronic disease in service, however remote, are to be service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service 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 diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). To establish service connection based on continuity of symptomatology, the claimant must have one of the chronic diseases enumerated at 38 C.F.R. § 3.303(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (limiting the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology to those "chronic" diseases enumerated in 38 C.F.R. § 3.309(a)). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). In some circumstances, a disease associated with exposure to certain herbicide agents may be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116(a) (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (20120. In this regard, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f) (West 2002). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); see Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009) (holding that VA's requirement that a veteran must have been present within the land borders of Vietnam - must have actually set foot therein - at some point in the course of duty in order to be entitled to a presumption of herbicide exposure constitutes a permissible interpretation of 38 U.S.C.A. § 1116(a)(1) and 38 C.F.R. § 3.307(a)(6)(iii). A veteran who never went ashore from the ship on which he served in the Vietnam coastal waters is not entitled to presumptive service connection. Id. Chloracne or other acneform disease consistent with chloracne is the only skin disorder included in 38 C.F.R. § 3.309(e) as a disease that has been associated with herbicide exposure. If herbicide exposure is not presumed, however, a veteran is not precluded from establishing service connection for that disease by submitting proof of direct causation. Combee v. Brown, 34 F.3d 1039 (1994). In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, 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. 38 U.S.C.A. § 1154(b) (West 2002). "Satisfactory evidence" is credible evidence. Collette v. Brown, 82 F.3d 389, 392 (1996). Such evidence may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b). The provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection in combat cases but rather ease the combat veteran's burden of demonstrating the occurrence of some in-service incident to which a current disability may be connected. Clyburn v. West, 12 Vet. App. 296, 303 (1999); Caluza v. Brown, 7 Vet. App. 498, 507 (1995). According to a DD Form 214, the Veteran served on active duty from June 1963 to June 1967, including in Vietnam. He does not, however, have chloracne or any other acneform disease consistent with chloracne. The previously noted presumptive provisions are therefore not applicable to his claim. Medical documents dated during the course of this appeal (from September 2001 to the present), including VA and private treatment records, a letter from a private physician and VA examination reports, confirm that the Veteran currently has another type of skin disorder, which VA examiners most recently diagnosed as senile urticaria. The question is whether any current skin disorder on the Veteran's face (diagnosed during the course of this appeal) is directly related to his active service. According to the Veteran's service treatment records, during active duty, the Veteran received treatment for skin complaints, including affecting his face. In February 1964, an examiner noted that the Veteran had a mole on his left cheek. On referral to dermatology, another examiner noted a nevus on the left side of the Veteran's face, which was to be removed in the future at the Veteran's convenience. The Veteran contends that a physician removed this growth, described as malignant, during service. There is no record of an excision; however, the examiner who conducted the separation examination in June 1967, did not note any growth on the face and instead noted normal clinical evaluations of the Veteran's face and skin. The Board thus finds credible the Veteran's report that he underwent excision of this growth during service, sometime between February 1964 and June 1967. As there is no record of a biopsy having been done in association with the excision, there is no evidence to corroborate that it was malignant, rather than the nevus the physician diagnosed in February 1964. On separation examination, the examiner noted multiple scars, including one on the back of the Veteran's head, but none on his face. According to post-service private medical records, in the 1990s, the Veteran began reporting skin complaints affecting multiple parts of his body, including the face. In September 1997, a physician noted, in part, a purplish patch on the Veteran's left chin. According to a June 2002 letter from Ramsay S. Kurban, M.D., a dermatologist, and his treatment records, the Veteran received treatment for actinic keratoses on his right and left cheeks in December 2000 and March 2001, prior to filing his claim for service connection for a skin disorder. Since then, the Veteran has continued to receive treatment for skin complaints, including some attributed to basal cell and squamous cell carcinomas, primarily affecting parts of the Veteran's body other than his face, but also affecting the face. In May 2003, the Veteran presented to Dr. Kurban who noted scaly macules on the left and right cheeks, diagnosed actinic keratoses and seborrhea keratoses, and indicated that there was no association between the Veteran's current cutaneous problems and his exposure to Agent Orange. In February 2009, the Veteran presented to Dr. Kurban complaining of generalized intermittent itching for years and lesions on the scalp and various other places. Dr. Kurban noted scaly macules on multiple body parts, including the left cheek, biopsied three sites, but not the cheek or face, and diagnosed actinic keratoses, seborrhea keratoses and eczema. During VA outpatient treatment visits dated through 2011, medical professionals noted that the Veteran was being followed for skin conditions, including actinic keratoses on the face, outside the VA. None related this or any other skin condition of the face to the Veteran's active service. A VA examiner has addressed the etiology of the Veteran's skin complaints. During a VA examination conducted in December 2009, the Veteran reported itchy skin of approximately 20 years duration, which he could not relate to any similar symptoms during service. The examiner specifically indicated that the Veteran had no lesions on his face. Similarly, in May 2012, the same examiner diagnosed senile urticaria, but did not note that it was affecting the Veteran's face. Instead, he noted that the Veteran had had a lesion removed from the left side of his face during service, had not had a reoccurrence of the lesion since then, and had no residual scar at the site. The VA examiner concluded that it is less likely than not that the Veteran's senile urticaria is related to his active service, the latter on the basis that the symptoms attributable to such a condition started in approximately 1989. The probative value of a medical opinion is based on the medical expert's personal examination of the patient, his knowledge and skill in analyzing the data, and his medical conclusion. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The credibility and weight to be attached to a medical opinion is within the province of the Board. Id. An opinion by a health care provider is never conclusive and is not entitled to absolute deference. Rather, the Board must consider the weight to be placed on the opinion depending upon, in part, the reasoning employed to support the conclusion. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). In this case, the Board finds the VA examiner's opinion the most probative on the nexus element of this claim. The Veteran has not submitted a medical opinion refuting it and, unlike Dr. Kurban's May 2003 unfavorable opinion, the VA examiner's opinion is supported by rationale. Moreover, it is based on a review of the claims file, a physical evaluation and the Veteran's admission that, since discharge, he has experienced no recurrences or any similar symptoms of the in-service growth on his left check. Neither the Veteran, nor any medical professional has concluded that the actinic keratoses on the Veteran's face represent residuals of the in-service growth. Multiple times during the course of this appeal, the Veteran has stated that his skin condition manifested long after discharge, a fact that substantiates the VA examiner's findings that the Veteran's current skin condition - senile urticaria - had its onset in approximately 1987 and that he has no residuals of the in-service nevus. There is no evidence in the claims file suggesting that the Board should question the VA examiner's credibility. His opinion is thus competent and credible on the question of whether the Veteran's skin disorder of the face, including actinic keratoses, is related to his active service, including the in-service nevus on the left cheek. The Veteran's assertion relating a general skin disorder to his active service thus represents the only evidence of record of a nexus. Although the Veteran is competent to provide an opinion on some medical issues and to report and describe the nature of certain lay-observable skin symptoms such as scaling and itchiness, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), he does not possess a recognized degree of medical knowledge to link these symptoms to his active service. Such an opinion falls outside the realm of a lay person's common knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (a layperson is not competent to diagnose cancer or offer an opinion regarding a medical question when that question may not be resolved through lay observation). In the absence of competent and credible evidence of a nexus between a skin disorder on the Veteran's face and his active service, the Board concludes that such disorder was not incurred in or aggravated by such service. In the absence of a diagnosis of chloracne or other acneform disease consistent with chloracne, the Board further concludes that a skin disorder on the face may not be presumed to have been incurred in service. A claimant is responsible for presenting evidence in support of his claim for benefits under laws administered by VA. VA is responsible for considering all such evidence, lay and medical. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA is to give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the evidence is not in relative equipoise. The benefit-of-the-doubt rule is thus not for application. ORDER Service connection for a skin condition of the face, including residuals of removal of multiple keratoses, is denied. ____________________________________________ J. CONNOLLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs