Citation Nr: 1315980	
Decision Date: 05/15/13    Archive Date: 05/15/13

DOCKET NO.  02-17 671	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for a fibrolipoma of the scalp (i.e., a growth on the head), including as due to exposure to Agent Orange.

2.  Entitlement to service connection for a peritonsillar abscess (mouth infection), also including as due to exposure to Agent Orange. 




ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel



INTRODUCTION

The Veteran had active military service from December 1973 to November 1975.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a June 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  The RO denied claims of entitlement to service connection for knee and ankle problems, high blood pressure, high cholesterol, stomach and intestinal polyps, a foot fungus, a growth on the Veteran's head, lapse of memory, a sleep disorder, and a mouth infection.  He filed a Notice of Disagreement (NOD) in July 2001 in response to the denials of service connection for high blood pressure, a growth on his head, a mouth infection, and stomach and intestinal polyps, and added a new claim for service connection for diabetes mellitus.

In an April 2002 rating decision, the RO confirmed all of the earlier denials and also denied the additional claim for service connection for diabetes mellitus.  He responded by initially appealing all of the claims in a May 2002 NOD, but later in June 2002 limited his appeal to the denials of service connection for diabetes mellitus, a growth on his head, and a peritonsillar abscess.  So these are the only claims he completed the steps necessary to perfect his appeal to the Board concerning.  38 C.F.R. § 20.200 (2012).

In May 2003, the Board remanded the claims to give him an opportunity to testify at a hearing at the RO before a Veterans Law Judge of the Board, also commonly referred to as a Travel Board hearing.  The hearing was scheduled for August 25, 2003, but the Veteran withdrew his request for a hearing, so the proceeding was cancelled.  See 38 C.F.R. § 20.704(e).

In September 2003, the Board again remanded the claims to the RO via the Appeals Management Center (AMC) in Washington, DC, for still further development and consideration.


In April 2009, the Board remanded the claims once more since it appeared from the record that the RO/AMC had not completely complied with the Board's previous, September 2003, remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (the Veteran is entitled to compliance with remand directives, and the Board itself commits error, as a matter of law, in failing to ensure this compliance).

A February 2011 Board decision since issued denied the claim of entitlement to service connection for diabetes mellitus, but again remanded the remaining claims for service connection for a fibrolipoma of the scalp (growth on the head) and for a peritonsillar abscess (mouth infection) for still further development and consideration.

The Board yet again remanded these remaining claims in October 2012, this time for still outstanding records concerning a hospitalization in service for these claimed conditions.  No additional records were obtained even despite that most recent remand, however, so the claims are again before the Board for disposition.


FINDINGS OF FACT

1.  There is probative medical and lay evidence indicating the current ulcerations, canker sores and infections of the Veteran's mouth are recurring manifestations, so residuals, of a peritonsillar abscess he had during his military service.

2.  But the probative (meaning competent and credible) evidence does not establish he was exposed to Agent Orange during his service, including while stationed overseas in Germany, and the most persuasive evidence does not etiologically link the fibrolipoma on his scalp to any incident of his service.



CONCLUSIONS OF LAW

1.  Resolving all reasonable doubt in his favor, his peritonsillar abscess was incurred during his military service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).

2.  The fibrolipoma of his scalp (growth on his head), however, was not incurred or aggravated during his military service and may not be presumed to have been, including from exposure to Agent Orange.  38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist the Claimant

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits.  Implementing regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012).

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf.  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  A regulatory amendment effective for claims pending as of or filed after May 30, 2008, removed the so called "fourth" requirement that VA also specifically request that he provide any evidence in his possession pertaining to the claim.  73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 C.F.R. 3.159(b)(1).

The U. S. Court of Appeals for Veterans Claims (Court/CAVC) further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), that these VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim:  1) Veteran status, 2) existence of a disability, 3) a connection between the disability and military service, but also concerning the "downstream" 4) disability rating and 5) effective date for the award if service connection is granted.

The Board is granting the claim for service connection for the peritonsillar abscess and associated residuals.  Hence, the Board need not discuss whether there has been compliance with the duty-to-notify-and-assist obligations as concerning this claim because the Veteran is receiving this requested benefit, regardless.  That is to say, even were the Board to assume, for the sake of argument, that a notice or assistance error was committed concerning this claim, it ultimately would be inconsequential and, thus, at most nonprejudicial, i.e., harmless error because the claim is being granted in any event.  38 C.F.R. § 20.1102.

With regards to the remaining claim for service connection for fibrolipoma of the scalp, through VCAA notice correspondence dated from April 2001 through December 2003, the RO and AMC appropriately notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  The VCAA notice further indicated the joint obligation between VA and him in obtaining pertinent evidence and information, explaining that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records.  See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).  The notice correspondence further provided an explanation of the "downstream" initial disability rating and effective date elements of a claim for service connection.


The initial VCAA notice correspondence in April 2001 was sent to him prior to the June 2001 rating decision on appeal, thus in accordance with the preferred preadjudicatory timing-of-notice standard.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  However, the June and December 2003 notice letters did not meet this timeliness requirement since they did not precede the initial adjudication of the claim.  This notwithstanding, he had opportunity to respond to the VCAA correspondence dated from 2003 in advance of issuance of the most recent February 2013 supplemental statement of the case (SSOC) continuing the denial of his claim.  And if, for whatever reason, VCAA notice was not provided prior to the initial adjudication of a claim or, if provided, the notice was inadequate or incomplete, this timing error can be effectively rectified ("cured") by providing any necessary VCAA notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007).  See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  See also 38 C.F.R. § 20.1102 (harmless error).  Here, there has not been any such pleading or allegation, much less showing.

The RO/AMC furthermore has taken appropriate action to comply with the duty to assist the Veteran with this claim by obtaining extensive records of his VA and private outpatient treatment, as well as records pertaining to his receipt of disability benefits from the Social Security Administration (SSA).  His complete service treatment records (STRs) and service personnel file also are of record.  

Also, pursuant to the prior Board remand directives, VA Compensation and Pension examinations were provided on the determinative issues of the nature, extent and etiology of his claimed fibrolipoma of the scalp disorder, including on the basis of a direct causal linkage to his military service.  The RO/AMC has further undertaken appropriate measures to attempt to objectively verify his claimed exposure to Agent Orange during his service, though to no avail.  In furtherance of the claim, he has provided several personal lay statements and statements from other individuals.  He requested a Travel Board hearing, but later withdrew that request.  There is no indication of any further relevant evidence or information that has not been obtained and that is obtainable.  The record as it stands includes sufficient competent evidence to decide the claim.  Under these circumstances, no further action is necessary to assist him with this claim.

He has received all essential notice, has had a meaningful opportunity to participate effectively in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  So, in summary, it is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claim.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran).  This is especially true in this instance, considering there already have been numerous remands of this claim to try and further develop it.


In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him 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 claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Background and Analysis

Service connection is granted for current disability resulting from a disease contracted or an injury sustained in the line of duty during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection on a direct-incurrence basis requires competent and credible evidence showing:  (1) the Veteran has the alleged disability or, at the very least, indicating he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or nexus 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

Certain conditions are considered chronic (i.e., permanent), per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a year after the Veteran's discharge from service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

Also of application to claims for direct service connection is the principle that where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  On the other hand, continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  In this circumstance, a showing of continuity of symptomatology since service is required establish chronicity of disease or injury in service and in turn link current disability to service.  38 C.F.R. § 3.303(b).  However, the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) since has clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), that this notion of continuity of symptomatology is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a).

Pertinent law further provides that a Veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange).  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii).  For purposes of application of this legal presumption, service in the Republic of Vietnam means actual service in country in Vietnam from January 9, 1962 through May 7, 1975, and includes service in the waters offshore, or 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), 3.313(a).  Qualifying service in the Republic of Vietnam must have involved service on the landmass of Vietnam (often referred to as service "in country") or, at the very least, on the inland waterways ("brown water"), but does not include mere service on a deep-water naval vessel in the waters offshore ("blue water").  See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); cert denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525); VAOPGCPREC 27-97.  What constitutes "inland waterways" is not defined in VA regulations; however, VA Adjudication Procedure Manual provides interpretive guidance.  The Manual indicates that inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated.  VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.k.  However, the Manual clearly states that service aboard a ship that merely anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore to establish presumptive exposure to herbicides.  Id.  The Manual does note an exception regarding Veterans who served as a coxswain.  

VA regulations further provide for presumptive service connection for specific diseases associated with exposure to herbicide agents.  Those diseases that are listed at 38 C.F.R. § 3.309(e) shall be presumptively service connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service.  Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service.  38 C.F.R. § 3.307(a)(6)(ii).

Rather recently, VA amended the list of covered diseases presumed service-connected due to herbicide exposure as to include all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia (CLL)), Parkinson's disease, and ischemic heart disease.  Note 3 to section 3.309(e) provides that "the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease."  See 75 Fed. Reg. 52,202-53,216 (Aug. 31, 2010), later codified at 38 C.F.R. § 3.309(e).  The other presumptive conditions include:  chloracne or other acneform disease consistent with chloracne, Type 2 Diabetes Mellitus, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e) (2009 and Supp. 2010); see Notice, 75 Fed. Reg. 168, 53202-16  (Aug. 31, 2010).


The Secretary of VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996).  The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for the following conditions:  Cancer of the oral cavity (including lips and tongue, pharynx (including tonsils), or nasal cavity (including ears and sinuses); cancers of the pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic organs; esophageal cancer; stomach cancer; colorectal cancer (including small intestine and anus); hepatobiliary cancers (liver, gallbladder and bile ducts); pancreatic cancer; bone and joint cancer; melanoma; non-melanoma skin cancer (basal cell and squamous cell); nasopharyngeal cancer, breast cancer, cancers of reproductive organs (cervix, uterus, ovary, testes, and penis; excluding prostate); urinary bladder cancer; renal cancer; cancers of brain and nervous system (including eye); endocrine cancers (thyroid, thymus, and other endocrine; cancers at other and unspecified sites; neurobehavioral disorders (cognitive and neuropsychiatric); amyotrophic lateral sclerosis (ALS); chronic peripheral nervous system disorders; respiratory disorders; gastrointestinal immune system disorders (immune suppression, allergy, and autoimmunity); circulatory disorders (including hypertension); endometriosis; effects on thyroid homeostasis; certain reproductive effects, and, any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted.  See Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21260 (May 7, 2009); Notice, 75 Fed.Reg. 32540 (June 8, 2010).

Thus, service connection may be presumed for residuals of Agent Orange exposure by satisfying two requirements.  First, a Veteran must show that he served in the Republic of Vietnam during the Vietnam War era or elsewhere outside of Vietnam where Agent Orange was used or sprayed.  See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6).  Second, the Veteran must have a diagnosis of one of the specific diseases listed in 38 C.F.R. § 3.309(e).  See Brock v. Brown, 10 Vet. App. 155, 162 (1997).  However, the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from alternatively establishing entitlement to service connection with proof of direct causation linking his claimed disability to his military service.  See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see, too, McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which, instead, concerned exposure to radiation, are equally applicable in cases involving Agent Orange exposure to establish direct causation).

The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 3.102.

Generally, lay statement evidence may have direct relevance to establishing underlying components of a claim for service connection.  In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit Court commented that competence to establish a diagnosis of a condition can exist when:  (1) a layperson is competent to identify the medical condition, (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.

Lay testimony where found credible is also competent to establish the presence of continuity of symptomatology for a claimed disability during and since separation from military service (again, subject to the limitation that a "chronic" disease is involved as defined under 38 C.F.R. § 3.309(a)).  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).


The Federal Circuit Court has further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition.  But as also observed by the Federal Circuit Court, lay evidence must "demonstrate some competence."  See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).  When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).

Peritonsillar Abscess

On review of service medical history, a June 1975 clinical record documents the Veteran presented with a five-day history of pain in his throat, with a resultant inability to open his mouth very far or swallow well.  Physical examination revealed a very enlarged tonsil and peritonsillar tissue on the left.  There was mild cervical adenopathy.  The diagnosis was a left peritonsillar abscess.  A few days later he underwent surgery for an incision and drainage of the peritonsillar abscess and afterwards was also prescribed a course of oral antibiotics.  Also as a result, he was placed on a two-week temporary physical profile, temporarily limiting his duty assignments.  His military service ended a short time later, in November 1975.

In his August 2003 correspondence, Dr. S.F., a private physician, indicated the Veteran initially had presented in July 2003 with a history of recurrent painful boils and ulcerations on his gums.  He also had a lesion on his palate.  He had reported that, while in service, he was exposed to "pesticides" and three days later he had these boils appear.  Without having had his complete medical records for review, this physician opined that it was possible but not certain that the Veteran's "pesticide" exposure caused his boils and ulcers of the mouth.

A February 2004 VA outpatient clinical record indicates, amongst other current conditions, oral ulcers, for which the Veteran would try a therapeutic mouthwash.

Meanwhile, a March 2004 private clinical record indicates the complaint of irritation of the gums in the lower jaw for a period of more than six years.  The assessment was probable canker sores.

In connection with this claim, the Veteran had a VA Compensation and Pension examination in May 2004 (performed by a QTC contract examiner).  The Veteran reported that a mouth infection in service had caused a constant ulcer inside of his mouth and a growth on the top of his mouth that was removed in 1974.  According to him, he had experienced ulcers of his mouth, and the symptoms were dry mouth, bad breath, tenderness and soreness.  He also reportedly had a lump on the top of his mouth.  The treatment was a form of mouthwash.  The functional impairment described was being very sensitive to hard or solid foods.  Objectively, examination of the larynx and pharynx was within normal limits.  There was no interference with chewing or speech.  There was no diagnosis made, because there was no pathology to render a diagnosis.  In regards to determining the etiology of a peritonsillar abscess, the examiner indicated that no opinion could be rendered because the Veteran had no oropharyngeal abnormalities on exam.

In her April 2005 statement, the Veteran's spouse indicated that he had experienced the problem of a mouth infection since his discharge from service.

During another VA C&P examination in August 2007 (again by a QTC physician), the Veteran reported having symptoms of sore and dry mouth, discomfort, headaches and ulcers.  There was reported previous treatment and hospitalization for bad infection after initial chemical exposure.  A physical examination was completed.  As to the subject of diagnosis, the examiner deemed a diagnosis not possible because the Veteran's tonsils were not swollen at that time.  There was present moderate periodontal disease.  It was further noted that the Veteran reported he constantly had ulcers, which came and went, once or twice per month.  At the time of exam, he objectively had one on his right cheek, an aphthous ulcer.  

Upon the request for an opinion regarding the etiology of a peritonsillar abscess, the examiner indicated that aphthous ulcers were recurrent and usually occurred during times of stress.  The examiner agreed with the assessment on file from Dr. M.D.G. that the Veteran's peritonsillar abscess was a chronic condition at least once or twice per month.  

When prompted for a more definitive opinion, the examiner stated that "no reasonable opinion can be made due to the fact that even [the Veteran's] medical factors can't seem to agree if any of his illnesses are related to his exposure.  At the time I evaluated [him] his abscesses were not even active."

During yet another comprehensive VA C&P examination in April 2011, following a comprehensive physical evaluation, the opinion was given that a peritonsillar abscess was not caused by or a result of service.  The stated rationale was that there was no Department of Defense (DOD) record of Agent Orange exposure; the condition in service resolved with no disability now found (no difficulty swallowing, or loss of weight); and post-service records showed the Veteran was treated by a mouth ulcer, resolved after use of magic mouth mouthwash.

After the Board's review of this collective body of evidence, the Board finds a tenable basis upon which to premise a grant of service connection for a peritonsillar abscess.  In so doing, the Board is mindful that the record supporting such a disposition is hardly the most definitive and clear, given the just minimally supportive VA examination findings obtained.  But them notwithstanding, applying VA's benefit-of-the-doubt doctrine in the Veteran's favor, the criteria for service connection are sufficiently established.

To begin with, the initial requirement of a relevant disease, injury or event in service having been met is indisputable.  In June 1975 the Veteran had a documented left peritonsillar abscess that required incision and drainage, and for which he was placed on a two-week temporary limited duty profile.  So there is no question he had that relevant incident in service.  The record must further show a connection to present-day disability, however, to establish his entitlement to service connection, and it does as likely as not, which is all that is required.

Regarding the requirement that there be proof of current disability, this crucial element is likewise shown despite some contradictory evidence on the matter.  See generally Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability."); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).  In Brammer  v. Derwinski, 3 Vet. App. 223 (1992), the Court reiterated that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in disability.  See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection may not be granted unless a current disability exists].  A "current disability" means a disability shown by competent evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).

Substantiating the Veteran's claim is the August 2003 physician's letter identifying a history from that year of recurrent painful boils and ulcerations on the gums, and a lesion on the palate.  There is consistent VA and private medical evidence from 2004 of oral ulcers and canker sores.  Whereas these findings are not identical to the condition during service of a peritonsillar abscess, they are nonetheless indicative of substantially similar disability, potentially symptomatic of a broader clinical condition.  The Board also readily acknowledges there is contradictory evidence, including two out of three post-service VA examinations (those from May 2004 and August 2011) during which the Veteran had no ascertainable disability whatsoever involving his interior mouth region; and an August 2007 VA examination in which he had just a single aphthous ulcer, considered likely due to stress as opposed to anything that had occurred during his military service.  But the fact remains that in August 2003, as corroborated by the treating physician's letter, then contemporaneous with when the Veteran filed his original claim for service connection, the disability claimed already existed, which is legally sufficient to establish a present disability for VA adjudication purposes.  See generally McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the existence of a current disability may be satisfied when a claimant has a disability at the time a claim for compensation is filed or during the pendency of that claim even though the disability resolves prior to VA's adjudication of the claim).

The existence of both in-service injury and a current disability having been proven, the remaining dispositive question is that of a causal nexus, whether the present disability is attributable to the Veteran's military 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, Duenas v. Principi, 18 Vet. App. 512, 516 (2004).  Resolving all reasonable doubt in the Veteran's favor concerning this final requirement, the Board finds that his present-day condition of ulceration, canker sores and lesions of his oral region is as likely as not a continuation of the same clinical condition that began during his service, as documented in 1975, particularly given that there is no intervening or intercurrent injury or infection to otherwise offer a nonservice-related etiology.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not condition precedent to granting service connection, nor is "definite" or "obvious" etiology).

While the VA examinations relevant to this claim have not provided any favorable medical nexus opinions thus far, the lack thereof appears to have been repeatedly attributable to the fleeting nature of the Veteran's symptoms, inasmuch as the mouth ulceration condition is dormant for long periods.  But even the VA compensation examiners readily conceded as much.  Without an observable disability at the time of their evaluation of the Veteran, they simply were unable to offer any opinion on etiology.  But as already explained, according to the holding in McClain, the Veteran already had established he has present disability since it has been shown since the filing of his claim in 2003, and there likewise is no compelling reason otherwise than to ascertain that this condition is part of the ongoing progression of the pathology in service.  Thus, the Board concludes that the final essential element of a causal nexus is proven.  Whereas another of the averred bases of recovery was exposure to Agent Orange during service, there is sufficient evidence to support a theory direct service connection without the need for proof of underlying herbicide exposure.

Accordingly, the critical components of service connection for a peritonsillar abscess having been met, this claim is granted.

Fibrolipoma of the Scalp

Unlike the claim just decided regarding the peritonsillar abscess, there is no reference or mention in the Veteran's STRs to a fibrolipoma of his scalp or to any substantially similar dermatological condition.  His military service, as mentioned, ended in November 1975.

This condition initially was noted in a June 1984 VA clinical record indicating he had had a knot on top of his head for the past two years, so since 1982 or thereabouts, causing headaches and moodiness.  He was observed to have a then present subcutaneous lesion on his head.

A July 1984 private hospital outpatient clinical record documents that for several months he was known to have a nodule on his scalp, increasing in size.  He underwent a procedure for excision of the fibroma.  A biopsy then showed that the section removed consisted of fibroadipose tissue, with no malignancy seen.

In July 2001 correspondence filed in connection with this claim of entitlement to service connection, the Veteran contended that in 1974, so during his military service while assigned a tour of duty in the Federal Republic of Germany and serving on a rotating unit for guard duty guarding chemicals, he was told that the substance within the chemical barrels was Agent Orange.  He was further told that the barrels were to be stored in Germany on their way to Vietnam.  According to him, some of the barrels were leaking a green substance.  Allegedly, the substance accidentally was transferred onto him and even got on some food he was eating one night while on guard duty. He expressed the belief that his medical condition involving a dermatological lesion on his head was directly related to his inadvertent exposure to Agent Orange.


In an August 2001 statement, L.E., who had served with the Veteran in Germany in the capacity of a corpsman, indicated that in June 1974 he had witnessed and observed the Veteran as an inpatient.  At the time, the Veteran had expressed to him that he had been affected by some kind of chemicals.  The Veteran was visibly short of breath and had visible respiratory problems.

In September 2002 correspondence, Dr. M.D.G., private physician, stated that he had been treating the Veteran for about three years for hypertension, abdominal pain and recurrent colonic polyps.  The Veteran also had experienced anxiety and depression.  According to this physician, "some of these conditions may have been caused by or made worse due to exposure to Agent Orange."  The physician anticipated the exacerbation of some or all of these conditions at some point in the future. 

The October 2002 clinical record from another private facility indicates the Veteran reported having been possibly exposed to Agent Orange, with a claimed relationship to a recurrent nodule on his scalp where he found that he had some fibrosis, to be re-biopsied at a later date.  A December 2002 record documents for the second time an excision of a scalp lesion.

In his August 2003 correspondence, the Veteran indicated that his duty assignment overseas was 30 minutes from Hamburg, Germany, where he again indicated that while on guard duty at an ammunition site he was in close proximity to Agent Orange.  According to him, he and others would eat their meals on top of the deteriorating barrels carrying a then unknown chemical, and he also immersed his hands in the liquid in the barrel.  A non-commanding officer (NCO) observed the Veteran mixing his hands in the liquid and told him not to because the barrels contained herbicides.  According to the Veteran, it was just two to three days later that he went to a military hospital with a severe infection in his mouth.  He further stated that, soon after his discharge from reserve duty in 1979, an April 1980 photograph depicted a skin infection on his head.  (A copy of a photograph ostensibly from this time period is of record in the Veteran's claims file, but the contents of the photo are near totally obscured.)

During his May 2004 VA C&P examination, the Veteran indicated that the dermatological growth on his head had been removed four times and had returned, the last returned growth having been removed six months previously.  He reported that due to his skin condition he had itching, which occurred constantly.  The skin disease involved areas that were exposed to the sun, including his head.  Over the previous twelve months, he had received topical medication only for the skin condition.  The described functional impairment was a knot on top of his head causing headaches, moodiness, and increase in scalp size.  Objectively, there were signs of skin disease located on his scalp.  There was no ulceration, exfoliation, crusting, tissue loss, induration, inflexibility, hypopigmentation, hyperpigmentation, abnormal texture or limitation of motion.  The skin lesion coverage of the exposed area was one percent.  The skin lesions were not associated with systemic disease and did not manifest in connection with a nervous condition.  The diagnosis was fibrolipoma.  In regards to determining the etiology of the dermatological growth on the head, the examiner found that the condition "was present during [the Veteran's] military service but does not appear to be related to [his] military service." 

In April 2005 correspondence the Veteran indicated his belief that the record showed that he had a growth on his head throughout the latter portion of his service records, including reserve duty, and stated these conditions worsened and required surgeries for removal of the lesion for many years to follow.  

In an April 2005 statement, the Veteran's spouse indicated the Veteran had experienced the condition of a growth on his head since his discharge from service.

In an undated response to the RO's inquiry, the United States Armed Services Center for Unit Records Research (CURR) indicated "this office has no documentation of any chemical materials (herbicides, Agent Orange) being stored in Germany during the period April to May 1974."  The CURR, incidentally, is now called the U. S. Army and Joint Services Records Research Center (JSRRC).

In March 2006 correspondence, Dr. L.E.G. indicated the Veteran had a recurring fibrolipoma of the scalp approximately 1-cm in diameter.

An inquiry to the National Personnel Records Center (NPRC), which is a military records repository, resulted in a March 2006 response of "no record of exposure to herbicides" for the Veteran.

Upon RO/AMC measures to contact the VA Compensation and Pension Service (by email) regarding the question of whether the Veteran was exposed to Agent Orange during his service, a July 2007 response was received.  The author of the response indicated that review had been completed of a listing of herbicide use and test sites outside of Vietnam provided by the DOD, which contained 71 sites within the U.S. and in foreign countries where herbicide and/or Agent Orange use or testing was acknowledged.  Regarding the specific circumstances of the Veteran as a claimant, there was no DOD record of any Agent Orange or other herbicide use, testing, or storage in Germany or elsewhere in Europe for any year.  Therefore, no evidence was available to support the claim, and the RO/AMC was advised to follow the standard development procedure in cases involving Agent Orange claims (as prescribed in the VA Adjudication Procedure Manual).

During VA examination in August 2007 (by QTC Services), the Veteran reported a skin lesion on his head having existed for 30 years, so presumably dating back to his military service or thereabouts.  Because of his skin condition, he had exudation, ulcer formation, itching, shedding and crusting.  The symptoms described occurred intermittently, as often as every three months, with each occurrence lasting four days.  The ability to perform daily functions during flare-ups was present but he experienced itching in the lesion.  Over the previous 12 months he had received corticosteroids constantly, with no side effects.  The diagnosis given was scar with alopecia of the left anterior scalp.  As to the etiology of this condition, the examiner indicated that the Veteran "has had a recurrent fibrolipoma that did occur in the service but it was initially felt to be a sebaceous cyst.  It was removed years later after discharge.  Military and private physician notes were reviewed...  As noted above, I have no evidence that he was exposed to Agent Orange so it is my opinion that the fibrolipomas are not caused by exposure to Agent Orange."

At the direction of a prior Board remand, a new inquiry was made to the JSRRC regarding possible Agent Orange exposure in service based on the now correct dates of the Veteran's active duty service (not limited to a two-month period from 1974).  In September 2009, the JSRRC responded that the U.S. Army historical records available did not document the spraying, testing, transporting, storage or usage of Agent Orange in Germany from May 1974 to September 1975.  The DOD inventory listing sites of herbicide spray areas and test sites also had been reviewed and Germany was not a listed location.  Also, the DOD suspended the use of Agent Orange in 1970.  Therefore, the JSRRC was unable to document any incident of exposure to Agent Orange as concerning this particular Veteran.

On VA reexamination in April 2011, following a physical evaluation the opinion was given that a disability manifested by fibrolipoma of the scalp was not caused by the Veteran's military service, the rationale being that there was no documented history of the condition during his service; no current disability was found related to the prior lesion on his scalp; fibrolipoma could be recurrent due to incomplete resection or surgical trauma at the site of excision.

Also pursuant to Board remand directive, the RO/AMC again contacted the NPRC requesting any further available clinical records from the Veteran's July 1974 hospitalization in service (including those records that might tend to establish hazardous chemical exposure), and in February 2013 the NPRC responded that no additional records were found.

Having reviewed this evidence in its entirety, the Board is unable to conclude that the record substantiates service connection for fibrolipoma of the scalp, including on the basis of alleged exposure to Agent Orange in Germany.  Therefore, this claim is being denied.


As an initial observation, the Board finds without question that the Veteran manifests a current disability involving recurrent fibrolipoma of his scalp, and has done so for several years dating back to original diagnosis and excision of the condition in 1984.  This first element of a presently diagnosed disability established, said disability also must be etiologically related to an incident of his military service to warrant the granting of service connection.  And, unfortunately, it is in this equally critical respect that this required showing of a medical nexus is not established, so the claim ultimately must be denied.

The primary basis of entitlement contended is that of in-service incurrence of a fibrolipoma of the scalp due to Agent Orange exposure, however, that theory of recovery does not lead to fruition given the lack of confirmation of the underlying herbicide exposure.  The Veteran's overseas duty was entirely in Germany and not in the Republic of Vietnam during the Vietnam Era or elsewhere outside of Vietnam were it has been acknowledged that Agent Orange was used or sprayed.  Therefore, as an initial matter, he is not entitled to the presumption of exposure to herbicides under prevailing law.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii).  A claimant may still attempt to establish exposure to herbicides based on exposure in locations other than the Republic of Vietnam, or the Demilitarized Zone (DMZ) in Korea (for which there is also under select circumstances a presumption of herbicide exposure).  On this subject, VA's Adjudication Procedure Manual provides specific evidentiary development measures to confirm herbicide exposure where there is no express legal presumption of such hazardous exposure.  See M21-1R, IV.ii.2.C.10(o) (Dec. 16, 2011).  These procedures prescribe that, upon receipt of information from the Veteran describing herbicide exposure (for locations other than in Thailand during the Vietnam Era), the case should be forwarded to the VA Compensation and Pension Service for a review of DOD's inventory of herbicide operations to determine whether herbicides were used as alleged.  If this inquiry does not show relevant herbicide exposure, the next stage of development is to contact the JSRRC for verification of exposure to herbicides. 


Here, the Board is satisfied that these prescribed development measures were completed.  As indicated in the July 2007 response from the VA Compensation and Pension Service, the DOD inventory list did not include Germany as amongst those locations where herbicides were stored or actively used.  The JSRRC since has indicated in September 2009 that available historical records did not document any spraying, testing, transporting, storage or usage of Agent Orange in Germany during the time period in question (when the Veteran was there), and moreover, the DOD had suspended use of Agent Orange in 1970 - so before he even served in the military, keeping in mind that his service was from December 1973 to November 1975.  Therefore, the prescribed development channels available fail to confirm Agent Orange exposure.

The Board thus is left with the Veteran's unsubstantiated lay allegations of Agent Orange exposure during his service.  While he is competent to report what he has observed personally, so has firsthand knowledge concerning, see Washington v. Nicholson, 19 Vet. App. 363 (2005), some objective corroboration of Vietnam service or elsewhere where Agent Orange was used or sprayed is required given that it involves more than mere observable symptoms of a medical condition, and instead is relevant to establishing hazardous exposure to Agent Orange during his service.  See, e.g., Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (in contrast to situations involving alleged medical symptoms or injury, a non-combat claimant's lay assertion that an event occurred in service must be weighed against other evidence of record, including lack of documentary evidence of the incident).  The Veteran only posits what he believes to have been Agent Orange in the barrels he references, not his actual knowledge that this was indeed the case.  There also is the August 2001 statement of a former corpsman who recalled treating the Veteran in 1974 for a reported exposure to some kind of chemical substance.  However, this information alone does not provide substantial corroborating details of actual Agent Orange exposure, and is instead a second-hand account of possible "chemical" exposure with no further supporting information.


Likewise, there is no medical evidence that after the fact points to herbicide exposure in a compelling manner.  A September 2002 private physician's opinion was that some of the Veteran's health conditions "may have been caused by or made worse due to exposure to Agent Orange."  For one, this opinion presumes there was exposure to Agent Orange, which, for the reasons already discussed, has not been established as actual fact.  There is no indication of an objective basis for finding Agent Orange exposure, only consideration of the Veteran's reported history of that event.  An opinion based on an unestablished factual premise cannot be said to carry probative weight.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative).  In Kowalski v. Nicholson, 19 Vet. App. 171 (2005), the Court indicated the Board may not disregard a favorable medical opinion solely on the rationale it was based on a history given by the Veteran.  Rather, as the Court further explained in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility.  Here, the Veteran's claim of having been exposed to Agent Orange during his service lacks credibility inasmuch as both the JSRRC and NPRC have refuted any such notion, so the medical opinion relying on this history also resultantly has no probative value.  Moreover, the opinion proffered also is stated in far less than definitive terms.  See, e.g., Tirpak v. Derwinski,  2 Vet. App. 609 (1992) (medical professional's use of equivocal terms such as "may" or "may not" was too speculative to constitute a definitive opinion on issue of causation); Winsett v. West, 11 Vet. App. 420, 424 (1998).  Saying something is "possibly" true is the same as or tantamount to saying it just as well is "possibly not" true and, thus, an insufficient basis to grant service connection.  The Court has held on several occasions that medical evidence that is speculative, general or inconclusive in nature cannot support a claim.  See 38 C.F.R. § 3.102 (noting that reasonable doubt does not include resort to speculation or remote possibility); see also Obert v. Brown, 5 Vet. App. 30, 33 (1993) (finding that medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (similarly finding that a doctor's statement framed in equivocal terms such as "could have been" is not probative); and Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert, 5 Vet. App. at 33 (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus).  There are indeed even other precedent cases discussing the lesser probative value of opinions like this that are equivocal, in various contexts, which essentially state that it is possible that what posited is true.  See, e.g., Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Perman v. Brown, 5 Vet. App. 227, 241 (1993).  See, too, Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty).

Consequently, there is no competent and credible indication of Agent Orange exposure in this case, as a basis to support an etiological relationship to service premised upon said hazardous exposure.  The Board also has before it the theory of direct service connection other than due to herbicide exposure, as reminded in Combee, McCartt and its progeny.  As concerning this additional matter, however, the preponderance of the evidence also is unfavorable.

The Board's review of the evidence does not reflect any evidence of a fibrolipoma of the head during service.  There is no documentation of the same in the STRs.  To the extent May 2004 and August 2007 VA examiners indicated the condition actually manifested in service, this was clearly based on their consideration of the Veteran's subjectively recounted history, which is not shown to be based in fact.  Under proper circumstances, where competent and credible, a claimant's allegations alone may establish in-service injury where not documented in the service records.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (where lay evidence provided is credible and competent, the absence of contemporaneous medical documentation such as actual treatment records does not preclude further evaluation as to the etiology of the claimed disorder).  Here, however, without discounting the Veteran's competence as a witness, the best evidence before the Board strongly suggests a post-service (rather than in-service) onset of fibrolipoma of his head.  The June 1984 VA clinical record provides the first medical documentation of this condition at issue and indicates a history of a knot on the top of the head for only the previous two years -- demonstrating a likelihood of initial inception in 1982, at best, so not until some 7 years after the Veteran's discharge from service, keeping in mind his service had ended in 1975.

A contemporaneous July 1984 private clinical record similarly notes an onset period of just several months.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran, long after the fact); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).  Aside from the aforementioned VA medical examinations, moreover, the theory generally set forth by the Veteran has been that the condition developed post service, albeit as the result of Agent Orange exposure during his service.  Thus, the interpretation of the facts most consistent with the objective medical record, as well as his own assertions, does not substantiate the in-service incurrence of a fibrolipoma lesion on his head.

Given the absence of initial incurrence in service, and of any other explanation for relating the 1984 diagnosis of fibrolipoma to an incident of service, the claimed condition cannot be said to be etiologically related thereto.  As a consequence,  the Board must rule out service connection under the averred theories, including on the basis of Agent Orange exposure.  Nor for that matter can the Board accept the Veteran's unsubstantiated lay opinion as the dispositive pronouncement on the subject of etiology.  Whereas one's lay observation cannot be outright discounted on the subject of causal nexus, this case presents a situation in which medical expertise is clearly needed to resolve the issue of causation given the time lapse between service and onset of disability.  The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  The Board therefore may consider the absence of any indication of a relevant medical complaint until relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period for which there was no clinical documentation of the claimed disorder).

Negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc).  Still, ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

Moreover, to the extent the Veteran might competently allege having had fibrolipoma in service, as a necessary premise for an allegation of causal nexus, for the reasons stated above, the likely existence of this condition in service has effectively been ruled out.  Thus, this case does not present the situation in which his lay observations of a continuous clinical condition over time would otherwise help establish a causal nexus.  The provisions of 38 C.F.R. § 3.303(b), even when shown to apply as defined by Walker, only allow for evidencing continuity of symptomatology since service to alternatively establish the required nexus between current disability and service when the condition now claimed about was "noted" during the Veteran's service, which in this particular instance it was not.

In deciding claims, the Board must assess the probative value of all evidence submitted, so including both lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  This evaluation generally involves a three-step inquiry.  First, the Board must determine whether the evidence is competent.  See e.g., Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  Second, the Board must determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether the evidence also is credible).  Third, the Board must assess the probative value and weight of the evidence in light of the entire record.  Gonzales, 218 F.3d at 1380-81.  See also Baldwin v. West, 13 Vet. App. 1, 8 (1999).

As observed by the Federal Circuit Court, lay evidence must "demonstrate some competence."  See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).  The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent.  See id.; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration).  However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it).  Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability, but this is entirely dependent on the specific type of disability at issue.  See Davidson, 581 F.3d at 1316.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy).  

For example, the Court has held that a lay person is competent to diagnose a disease with "unique and readily identifiable features" such as varicose veins.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  Similarly, the Court has found a lay person competent to identify tinnitus and flat feet, which are disorders that can be identified based on lay observation alone.  See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).

However, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity.  See Barr, 21 Vet. App. at 309.  For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a more medically complex condition.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  To reiterate, the Federal Circuit Court has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances:  (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007).

Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  Id.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  Id.

The competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility and probative value.  See Layno, 6 Vet. App. at 469; accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify.").  

The Board discounts the weight of evidence it finds not to be credible.  See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). 

In determining whether statements submitted by a veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").

In deciding claims, the Board must assess the credibility and weight of all the evidence, so including both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds persuasive or unpersuasive and providing reasons or bases for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107.  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See also 38 C.F.R. § 3.102.  When the evidence is in relative equipoise, he prevails.  See Gilbert, supra.  The preponderance of the evidence must be against the claim for benefits to be denied.  Alemany v. Brown, 9 Vet. App. 518 (1996). 

In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11.  The Board is mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another.  Evans v. West, 12 Vet. App. 22, 31 (1998).  The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings.  The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.  Sklar v. Brown, 5 Vet. App. 140 (1993).  In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran many years later, long after the fact.  Curry v. Brown, 7 Vet. App. 59, 68 (1994).  Also, as already explained, medical evidence that is speculative, general or inconclusive in nature cannot support a claim insofar as establishing the posited relationship between the claimed disability and the Veteran's military service.  See Obert v. Brown, 5 Vet. App. 30, 33 (1993).

Accordingly, the Board is denying this claim for connection for fibrolipoma of the scalp, including due to Agent Orange exposure.  The preponderance of the evidence is against this claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).



ORDER

Service connection for a peritonsillar abscess is granted. 

However, service connection for a fibrolipoma of the scalp (growth on the head), including as due to exposure to Agent Orange, is denied.




____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs