Citation Nr: 1327773 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 08-19 651A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a skin disorder, to include as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from August 1969 to April 1971, to include a tour of duty in the Republic of Vietnam from February 1970 to April 1971. His decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. In October 2009, the Veteran and his spouse testified at a personal hearing over which the undersigned Veterans Law Judge presided in Washington, DC. A transcript of that hearing has been associated with his claims file. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the October 2009 hearing, the undersigned clarified the issues on appeal and inquired as to the etiology and continuity of the Veteran's asserted symptoms. The Veteran and his spouse were offered an opportunity to ask the undersigned questions regarding his claim. The Board, therefore, concludes that it has fulfilled its duty under Bryant. The issues on appeal were previously denied by the Board in August 2010. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), and in February 2011, the Court granted a Joint Motion for Remand, remanding these claims back to the Board. This matter was then before the Board in September 2011 and December 2012 at which time it was remanded for additional development. It is now returned to the Board. As will be discussed further herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the February 2011 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The issues of bilateral hearing loss and tinnitus have been raised by the record, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A low back disorder has not been shown to have been manifested as a result of the Veteran's period of active service, or as a result of a service-connected disability. 2. A skin disorder has not been shown to have been manifested as a result of the Veteran's period of active service, nor is it secondary to exposure to Agent Orange. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 2. The criteria for establishing entitlement to service connection for a skin disorder, to include as secondary to exposure to Agent Orange, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in February 2007, November 2007, February 2010, March 2010, July 2011, September 2011, June 2012, July 2012, August 2012, and June 2013 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Board further observes that this case was most recently remanded in December 2012 in order to obtain any outstanding VA treatment records and afford the Veteran VA examinations so as to assess the nature and etiology of his asserted disabilities. Thereafter, additional VA treatment records were associated with the claims file. The Veteran was scheduled for the requested VA examinations, however, he failed to appear as scheduled. In an August 2013 Written Brief Presentation, the Veteran's representative noted that the Veteran was unable to attend his scheduled examination for good cause, though, added that the reasons were unavailable. Neither the Veteran nor his representative requested that he be rescheduled for additional examination. Therefore, the Board finds that the AOJ has substantially complied with the December 2012 remand directives such that no further action is necessary in this regard. See D'Aries, supra. As noted, the Veteran failed to report for the scheduled VA examinations of his back and skin as requested by the Board in December 2012. It is a Veteran's responsibility to report for any examination and to cooperate in the development of his case, and that the consequences of failure to report for a VA examination without good cause results in the case being decided on the evidence already of record. 38 C.F.R. § 3.655 (2012). In Olson v. Principi, 3 Vet. App. 480 (1992), the Veteran failed to report for scheduled examination, and it was reiterated that the duty to assist is not always a one-way street, or a blind alley; and that the Veteran must be prepared to cooperate with VA's efforts to provide an adequate medical examination and by submitting all medical evidence supporting a claim. See also Wood v. Derwinski, 1 Vet. App. 190 (1991). In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). If the Veteran engaged in combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). To establish service connection, however, there must be medical evidence of a nexus between the current disability and the combat injury. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). Most recently, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in such cases, not only is the combat injury presumed, but so are the consequences of that injury at least in service. See Reeves v Shinseki, 682 F.3d 988 (Fed. Cir. 2012). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). A Veteran who had active service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era also will be presumed to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). This presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). The following diseases are associated with herbicide exposure for purposes of this presumption: chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), ischemic heart disease, Parkinson's disease, and B cell leukemias. 38 C.F.R. § 3.309(e). Actinic keratosis is not among the specific conditions for which a presumption of service connection based on exposure to herbicides used in Vietnam during the Vietnam era is warranted. The Secretary, under the authority of the Agent Orange Act of 1991 and based on the studies by the National Academy of Sciences (NAS), has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41, 442-449 , and 61 Fed. Reg. 57, 586-589 (1996); Notice, 64 Fed. Reg. 59, 232-243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42, 600-08 (June 24, 2002); Notice, 72 Fed. Reg. 32, 395-407 (June 12, 2007). However, even if a Veteran is found not entitled to a regulatory presumption of service connection, the claim still must be reviewed to determine whether service connection may be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). See, also, McCartt v. West, 12 Vet. App. 164, 167 (1999) (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 Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons 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. Low Back Disorder The Veteran asserts that he currently has a low back disorder that is related to an in-service fall. Service treatment records show that he sustained a low back injury during active service. A December 1969 service treatment record shows that he fell on his back when coming down a hill. X-rays revealed questionable spreading of the transverse process of the L5 vertebra on the right. The physician concluded that the Veteran had quite a severe muscle spasm secondary to trauma of the lower back. A treatment note two days later shows that the Veteran was feeling much better, and X-rays revealed no fracture. An April 1971 separation report of medical examination shows that clinical evaluation of the Veteran's spine was normal. Following service, a VA examination report dated in June 2007 shows that the VA examiner noted there were no X-rays or treatment for the back on record since separation from active service. The diagnosis was lumbar strain. The VA examiner opined that it was less likely as not that the lumbar strain was caused by or a result of a muscle strain in service. The examiner based this opinion on the fact that after the 1969 fall in service, there were no further complaints of back pain through separation. The examiner also noted that there was no nexus from active service to the present, and that the Veteran had no complaints of back pain documented or X-rays taken. A VA outpatient treatment record dated in January 2008 shows that X-rays of the lumbar spine revealed no abnormalities of the lower back. During the October 2009 hearing, the Veteran's representative explained that the Veteran had slipped while climbing a mountain during active service, wherein he had fallen three to four feet into a ravine. It was also suggested that the current back disorder could be related to a gunshot wound to the right shoulder that had been asserted to be related to active service. A VA examination report dated in April 2010 shows that the VA examiner opined that the Veteran's low back disability was not related to events that occurred during active service. The examiner noted that the Veteran was seen for follow-up treatment in December 1969, and that he was doing better after his fall. There was also no evidence to establish chronicity, and a VA outpatient treatment record from April 2004 had indicated that the Veteran had no complaints. A VA examination report dated in October 2011 shows that the VA examiner indicated that the Veteran's medical history had been reviewed in conjunction with conducting the examination of the Veteran. Following objective testing, the VA examiner opined that it was unlikely that the Veteran's back pain arose from active service. The examiner explained that the Veteran's in-service injury was diagnosed as muscle spasms, which normally resolve over a brief period of time and would not predispose someone to future strains, fractures, degenerative joint disease, or tumors. Further, the examiner noted the lack of evidence of continued symptoms or treatment, as shown by the lack of treatment records from active service to present, indicated that relationship to active service was unlikely. In December 2012, the Board determined that the VA examiner in October 2011 had not provided a discussion of the Veteran's lay statements regarding his continued back symptoms from service to present, and remanded the issue so that the Veteran could be re-examined, and an opinion could be provided as to the likelihood that the current low back disorder was manifested as a result of service taking into consideration the Veteran's lay statements regarding chronicity of symptomatology since service. As noted above, the Veteran did not appear for the scheduled VA examination. Based on the foregoing, the Board finds that the Veteran's claim must be denied. While the Veteran has been diagnosed with chronic low back pain and resolved lumbar sprain/strain, his diagnosed low back disorder has not been related to his period of active service. The Veteran's separation physical examination report is highly probative as to his condition at the time of his release from active duty, as it was generated with the specific purpose of ascertaining his then-physical condition, as opposed to his current assertion which is proffered in an attempt to secure VA compensation benefits. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). The April 1971 separation examination report is entirely negative for any symptoms associated with the lumbar spine and weighs heavily against the claim. Moreover, there is no diagnosis of arthritis of the lumbar spine made within one year following separation from service, therefore, entitlement to service connection on a presumptive basis under 38 C.F.R. § 3.307 is not warranted. Following service, there is no indication of a low back disorder until the June 2007 VA examination, which is more than 35 years following separation from service. Evidence of a prolonged period without medical complaint and the amount of time that elapsed since active service, can be considered as evidence against a claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds probative the opinions of the VA examiners to the extent that their assessment of the documented history has not shown the Veteran has a low back disorder that is manifested as a result of active service. While the VA examinations did not thoroughly consider the Veteran's competent lay statements as to the onset and continuity of symptomatology, as noted above, the Veteran did not report for examination in this endeavor, and the claim must be adjudicated based on the evidence already of record. The VA medical opinions of record are otherwise considered probative as they are definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. The Veteran has not provided any competent medical evidence to rebut the opinions against the claim or otherwise diminish their probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). In view of the findings of one incident of a low back injury in service that was not noted at separation, coupled with the lengthy period following service without treatment, there is no evidence of continuity of symptomatology, and this weighs against the Veteran's claim. The Board recognizes the Veteran's contentions that he has had continuous symptoms since active service. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran is able to observe continuity of low back symptoms, his opinion is outweighed by the competent medical evidence. Simply stated, the Veteran's service treatment records (containing no evidence of a low back disorder at separation) and post-service treatment records (showing no complaints, symptoms, findings or diagnoses associated with a low back disorder until 2007, and no competent medical evidence linking the current disability to the Veteran's service) outweigh the Veteran's contentions. While the Veteran is competent to describe that which he experienced in service and thereafter, any contentions that his low back disorder is related to active service are outweighed by the remaining evidence of record. Additionally, the Board notes that service connection is not in effect for any residuals of a gunshot wound to the left shoulder. As such, service connection on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury is not warranted. See 38 C.F.R. § 3.310(a) (2012). Given the medical evidence against the claim, for the Board to conclude that the Veteran's current low back disorder was incurred during service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102 (2012); Obert v. Brown, 5 Vet. App. 30, 33 (1993). As such, the evidence in this case weighs against the claim of service connection for a low back disorder. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C.A. §5107 (West 2002). Skin Disorder The Veteran contends that he is entitled to service connection for a skin disorder, to include as due to Agent Orange exposure. Specifically, the Veteran contends that his current skin condition is related to a skin condition that occurred during active duty. The Veteran's service personnel records demonstrate that he had a tour of duty in the Republic of Vietnam. Therefore, exposure to herbicidal agents is presumed. See 38 U.S.C.A. § 1116(f). A review of the Veteran's service treatment records demonstrates that he was treated for cellulitis of the right foot and T. Dermatophytes of the buttocks in August 1970. However, the evidence suggests that these were acute conditions that resolved upon treatment. There is no evidence of follow-up treatment for either of these conditions during active service. The April 1971 separation report of medical examination shows that clinical evaluation of the skin was normal. Following service, a VA outpatient treatment record dated in April 2002 shows that the Veteran had been experiencing a rash on his face for the preceding five years. The diagnosis was keratosis and questionable rosacea. An April 2003 dermatology note indicates that he was experiencing lesions on the scalp, face and nose, and was diagnosed with sebaceous keratosis. A VA examination report dated in April 2010 shows that the Veteran was diagnosed with actinic keratosis (resolved) and non-specific dermatitis of the face. The VA examiner concluded that the Veteran's skin condition was not related to events that occurred in active service. The examiner based this opinion on the fact that there was no evidence of actinic keratosis or of dermatitis during active duty, and, that the April 2002 VA outpatient treatment record noted complaints of a facial rash for only the prior five years. A VA skin examination report dated in October 2011 shows that the Veteran was diagnosed with seborrheic keratosis, actinic keratosis, keratosis and nevus. The VA examiner opined that it was less likely than not that the claimed condition was caused by or a result of active service. The examiner explained that the current seborrheic keratosis, actinic keratosis, keratosis and nevus were related to exposure to Agent Orange while in Vietnam. The examiner also noted that the Veteran had a tinea type of rash that had no relationship between to his current skin disorders. A VA dermatology report dated in July 2013 shows that the Veteran was said to have declined a compensation and pension examination. The VA dermatologist nonetheless reviewed the Veteran's claims file and opined that it was less likely than not that the Veteran's actinic keratosis, benign nevus, and benign keratosis were incurred in or caused by the claimed in-service injury, event, or illness. The examiner added that all pathology reports were reviewed, and no skin cancers were found. Actinic keratosis was said to be a common skin lesion of disordered keratinocyte proliferation in the epidermis as the result of cumulative ultraviolet radiation form sun exposure; very common for residents of Florida. Having carefully considered the claim in light of the record and the applicable law, the Board finds that the preponderance of the evidence is against the claim of service connection for a skin disorder, and the appeal will be denied. Initially, the Board notes that a skin disorder manifested by seborrheic keratosis, actinic keratosis, keratosis and nevus is not a disability for which presumptive service connection would be available under 38 C.F.R. § 3.309(e). The competent medical evidence of record has not shown that the Veteran has ever been diagnosed with chloracne. As such, entitlement to service connection for a skin disorder is not warranted on a presumptive basis pursuant to exposure to herbicides in the Republic of Vietnam. In this regard, the Board notes that the Secretary has reiterated that there is no positive association between exposure to herbicides and any condition for which it has not been specifically determined that a presumption of service connection is warranted. See 72 Fed. Reg. 32395 (Jun. 12, 2007). However, as noted above, the Veteran is not precluded from establishing service connection with proof of direct causation. See Combee, 34 F.3d at 1042. The Veteran's April 1971 separation report of medical examination is negative of any assessment of a skin disorder, and is highly probative as to his condition at the time of his release from active duty, as it was generated with the specific purpose of ascertaining his then-physical condition, as opposed to his current assertion which is proffered in an attempt to secure VA compensation benefits. Rucker, 10 Vet. App. at 73. There is no evidence suggesting that the Veteran was treated for a skin disorder following service until the April 2002 VA outpatient treatment records which is more than 31 years since separation. Evidence of a prolonged period without medical complaint and the amount of time that elapsed since active service, can be considered as evidence against a claim. Maxson, 230 F.3d at 1333. The Board has considered the opinion of the VA medical examiners of record and finds them to be probative as they are definitive, based upon a contemporaneous physical examination and a complete review of the Veteran's entire claims file, and supported by detailed rationale. Accordingly, they are found to carry significant weight. The Veteran has not provided any competent medical evidence to rebut the opinions against the claim or otherwise diminish their probative weight. See Wray, 7 Vet. App. at 492-93. The Board recognizes the Veteran's contentions that he has had continuous symptoms since active service. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr, 21 Vet. App. at 303. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. See Jandreau, 492 F.3d at 1377. To the extent that the Veteran is able to observe continuity of a skin disorder, his opinion is outweighed by the competent medical evidence. Simply stated, the Veteran's service treatment records (containing no evidence of a skin disorder at separation) and post-service treatment records (showing no complaints, symptoms, findings or diagnoses associated with a skin disorder until 2002, and no competent medical evidence linking the current disability to the Veteran's service) outweigh the Veteran's contentions. While the Veteran is competent to describe that which he experienced in service and thereafter, any contentions that his skin disorder is related to active service are outweighed by the remaining evidence of record. Given the medical evidence against the claim, for the Board to conclude that the Veteran's current skin disorder was incurred during service would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102 (2012); Obert, 5 Vet. App. at 33. As such, the evidence in this case weighs against the claim of service connection for a low back disorder. See Degmetich, 104 F.3d at 1328; Gilpin, 155 F.3d at 1353. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C.A. §5107 (West 2002). ORDER Service connection for a low back disorder is denied. Service connection for a skin disorder, to include as due to exposure to Agent Orange, is denied. ____________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs