Citation Nr: 1330320 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 04-31 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for lupus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1977 to December 1987 and from February 3, 2003 to August 15, 2004. The Veteran also served in the Reserves from 1988 to 2004. This appeal comes before the Board of Veterans' Appeals (Board) from a rating decision dated in February 2003 of the Department of Veterans Affairs (VA), Regional Office (RO), in San Diego, California, which, in part, denied entitlement to service connection for lupus. In April 2006, the Veteran testified before the undersigned Acting Veterans Law Judge at a videoconference hearing. Additionally, the Veteran through his testimony, with the assistance of his representative, demonstrated actual knowledge of the elements necessary to substantiate the claim. He testified that his skin disability began during his second period of active duty and reported continuity of symptoms since service. In the alternative, the Veteran alleged that any pre-existing lupus was aggravated by his second period of service. See Bryant vs. Shinseki, 23 Vet. App. 488 (2010). A copy of the hearing transcript has been associated with the claims folder. In July 2006 and April 2013, the Board remanded the issue for additional development. Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. There has been substantial compliance with the requirements articulated in the Board's prior remand decisions. Pursuant to these instructions, the RO has attempted to obtain all outstanding medical records, including any outstanding treatment records from the Veteran's Reserves service. The Veteran was afforded a VA examination in compliance with the remand directives. The examination is adequate because the examiner reviewed the claims file, opined as to the likely etiology of the Veteran's lupus, and provided an opinion as to any relationship between lupus and service, including the issue of aggravation. The examiner provided a complete rationale for the opinions which were based on objective findings in the record and sound medical principles. The Veteran also considered the Veteran's assertions. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104 -05 (2008); Dyment v. West, 13 Vet. App. 141 (1999). In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file have been reviewed, and all relevant records are either duplicative of the evidence in the paper claims file or are separately identified and summarized below. The VVA file includes the appellate brief provided by the Veteran's representative, and the document has been reviewed. Finally, the Veteran's claim on appeal involves the issue of service connection for lupus, but from the inception, the Veteran has indicated that he has a "skin" disease that began during service, or worsened during service. The Veteran is not expected to discern what symptoms are attributable to his claimed dermatitis and what symptoms are attributable to his discoid lupus erythematous. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, the issue of service connection for dermatitis was separately addressed in a September 2005 rating decision. In that decision, the RO denied the claim and the Veteran did not timely appeal that issue. In a July 2009 letter, the Veteran asserted service connection for a skin disorder to include lupus and dermatitis. As such, there is a pending claim as to the issue of whether new and material evidence to reopen the claim of service connection for service connection for dermatitis, which has not yet been adjudicated by the Agency of Original Jurisdiction. Therefore it is referred to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran's discoid lupus erythematous clearly and unmistakably preexisted his second period of active service which began in February 2003, and it was clearly and unmistakably aggravated by the Veteran's second period of active service. 2. Lupus was not incurred during a period of active duty for training. 3. Lupus is not etiologically related to any disease, injury or other event in service. CONCLUSION OF LAW Lupus was not incurred in, or aggravated by, active service or active duty for training. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.6, 3.303 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in May 2002. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. However, the notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection. This defect was subsequently cured when the RO issued subsequent duty-to-assist letters in August 2006 and May 2013. This letters specifically notified the Veteran of all five elements of a service connection claim, including the assignment of initial ratings and effective dates for all grants of service connection. The claim was thereafter readjudicated by way of supplemental statements of the case (SSOCs), with the most recent SSOC having been sent in June 2013. Moreover, the notices provided to the Veteran over the course of the appeal provided all information necessary for a reasonable person to understand what evidence and/or information was necessary to substantiate his claim. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Moreover, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The Veteran's available service treatment records and relevant VA medical records are in the file. The RO, pursuant to April 2013 remand instructions, contacted the Veteran and requested that he identify any private medical providers, and requested appropriate authorization to obtain any such records. The Veteran did not respond to that request. Additionally, the RO attempted to obtain additional service treatment records during the time the Veteran was in Reserves status. After three attempts to obtain any additional outstanding service treatment records, the RO formally found that no additional records were available in October 2008. All relevant records identified by the Veteran as relating to this claim have been obtained, and the Veteran does not contend otherwise. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Veteran was provided a VA examination in May 2013. The May 2013 examiner considered the Veteran's claims of experiencing symptoms of skin problems while on active duty, as well as the service treatment records, post-service treatment records, and conducting a physical examination. The examiner concluded that the lupus was less likely than not incurred in or aggravated by the Veteran's service. As the opinion was based on review of the claims file, including the Veteran's statements and other material favorable to the Veteran's claim, and provided an extensive rationale for the opinion provided, the opinion provided is adequate. The evidence of record is thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The medical evidence of record is sufficient to adjudicate the Veteran's claim. The record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was 'noted' during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as 'chronic' in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also 38 C.F.R. § 3.309(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Active military, naval, or air service includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (IDT or INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C.A. § 1106; 38 C.F.R. § 3.6(a). Service connection on a presumptive basis is not available where the only service performed is ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 476-78 (1991). For veterans who have achieved "veteran" status through a prior period of service, as is the case here, and claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness at entry applies ONLY when the veteran has been "examined, accepted, and enrolled for service" and where that examination revealed no "defects, infirmities, or disorders." Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). Thus a claimant who has "veteran" status through a prior period of active duty and wishes to apply for a disability that was incurred during a period of ACDUTRA must have had an examination prior to entering the period of ACDUTRA during which the injury or disease occurred for the presumption of soundness to apply. The examination must reveal no preexisting disabilities. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, flat feet, varicose veins), (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, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumptive period, or whether it can be so identified by lay observation). Savage, 10 Vet. App. 488, 494-97 (1997). See also Barr v. Nicholson, 21 Vet. App. 303 (2007). In determining whether service connection is warranted for a claimed disability, VA adjudicators have the responsibility of determining whether the evidence supports the claim or is in relative equipoise (i.e., about evenly balanced for and against the claim), with the Veteran prevailing in either event. Conversely, the claim will be denied if the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All reasonable doubt is resolved in the Veteran's favor. 38 CFR § 3.102. A Veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111; VAOPGCPREC 3-2003. The presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. See VAOGCPREC 3-2003. The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011). In sum, when no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C.A. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. As explained in Wagner, 370 F.3d at 1096, and more recently in Patrick, "both the plain language and legislative history of section 1111 make clear that the presumption of soundness can only be rebutted by clear and unmistakable evidence both that a condition existed prior to service and that it was not aggravated by service." Patrick, 668 F.3d at 1328 . To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). However, if the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). As noted, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions," Id. at (b)(1). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). 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. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background The Veteran seeks service connection for lupus. He maintains that his claimed lupus disability was incurred in active military service. He has also argued, in the alternative, that his more recent, second period of active duty from February 2002 to August 2004, aggravated his claimed lupus disability. During the Veteran's first period of service, service treatment records (STRs), to include physical examinations dated in November 1977, November 1980, August 1983, and April 1986, are negative for any complaints or diagnosis of lupus. In October 1980 service treatment record indicated that the Veteran presented with a two week history of a puritic scalp rash which was also on his bilateral hands and forearms. A diagnosis of contact dermatitis was made. The STRs from the first period of service do not show a diagnosis, or a suspected diagnosis, of lupus. The Veteran's discharge examination in November 1987 is negative for complaints of a skin disease. On a Report of Medical Examination in January 1988, the Veteran's skin was noted to be normal. Private treatment records dated in February 2000 include treatment for other skin diagnoses to include chronic fungal dermatitis. The Veteran indicated that he had the condition for four to five years prior to the examination. A November 2000 private biopsy report was suggestive but not fully diagnostic of lupus erythematosus, correlating with reported light microscopic findings. The report noted that this constitutes an equivocal lupus band test. The final diagnosis was "weakly positive direct immunoflourescence study, suggestive of Lupus erythematous (Equivocal lupus band test)." A February 2001 private treatment note, prior to the Veteran's second period of active service, indicated that the Veteran had a skin condition that forced him to avoid the sun. In a May 2002 private treatment record, the physician concluded that the Veteran has sun-induced lupus. He was followed by a dermatologist, but has not been seen in a year. He was requesting medication. The diagnosis was possible lupus. During the Veteran's second period of service, STRs showed complaints and treatment for seborrheic dermatitis; however there is no treatment or diagnosis of lupus. In the Veteran's July 2003 Post-Deployment Health Assessment related to his second period of active duty, the Veteran reported that he experienced skin diseases and rashes both during and after his deployment in Kuwait. A July 2004 Medical Evaluation Board evaluation did not include a diagnosis of lupus. A November 2004 private treatment record noted the head/face and skin as normal. The Veteran underwent a general VA examination in May 2005 which revealed a diagnosis of seborrheic dermatitis, resolved. A December 2005 VA progress note noted no lesions on the skin. VA progress notes dated from January 2006 to February 2007 includes a diagnosis of discoid lupus erythematosus. In a January 2006 VA progress note, the Veteran reported that the lesions on his face began after desert active duty as "sand always caus[ed] irritation on upper cheeks." During an April 2006 videoconference hearing, the Veteran testified that one day when he went into the Reserve center before training, he was handed equipment to include gas masks. He stated that a specialist was cleaning it because he just came back from the first Gulf War. The Veteran asserted that the equipment was not cleaned, so he was training with dirty, contaminated equipment. He noticed all kinds of "ringworm looking" spots on his head and face. He was given medication from his private examiner and it cleared. He claimed that the skin disorder reappeared after returning from Iraq. He was given additional medication. The Veteran underwent a VA lupus examination in May 2013. The examiner noted that the claims folder was reviewed. During this examination, the diagnosis was noted as: Discoid lupus erythematous, diagnosed in 2000. The examiner noted that the Veteran has seborrheic dermatitis, so it was difficult to distinguish between a lupus rash and seborrheic dermatitis when the Veteran describes his skin disorder. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner also noted that review of treatment records confirm that the Veteran was diagnosed with mild discoid lupus in 2000 at Kaiser and that he received immunosuppressant treatment from Kaiser. Also, VA dermatology notes indicate treatment for skin rashes, thought to be from discoid lupus. The examiner noted that as of March 2013, the Veteran was no longer on any topical immunosuppressant and there had been no recurrence or flare up of malar rash. The examiner opined that it is less likely than not that the Veteran's discoid lupus occurred during his service period from 1978 to 1988, because review of the service treatment records did not show that he was seen during that time for a malar rash or a rash/lesion on the left temple. The examiner also opined that it is less likely than not that the Veteran's lupus worsened during his second period of service. There was no objective evidence in the claims file to support the claim that the lupus worsened in severity during his second period of service from 2003 to 2004. The examiner found that there was only the Veteran's subjective claim that sun exposure while in Iraq for 4 months worsened his rash. It was noted that the Veteran's discoid lupus was stable and mild during the examination. There was no objective evidence of a malar rash, therefore, there was no obvious visible skin manifestation of discoid lupus evident during the physical examination. Analysis The evidence supports a diagnosis of discoid lupus erythematosus; however, service connection is not warranted for lupus because the persuasive evidence of record provides no nexus or link to his periods of active military service; and, because the Veteran's discoid lupus erythematous clearly and unmistakably preexisted service and was clearly and unmistakably not aggravated in service. With regard to direct service connection, as noted above, though the medical evidence reflects the presence of a skin disability during the Veteran's periods of active service, there was no initial diagnosis of lupus during either period of active service. Post-service medical records, as noted above, show a diagnosis of lupus no earlier than 2000 with additional treatment beginning in January 2006. Significantly, the record also includes no competent medical opinion establishing a nexus or medical relationship between the Veteran's current lupus diagnosed between periods of active service and events during the Veteran's active service. In that regard, the Board finds the May 2013 VA medical opinion to be of significant probative value as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale based on sound medical principles. That examination confirmed that the Veteran was initially diagnosed in 2000, and no earlier. Additionally, the evidence does not show, and the Veteran does not contend that he developed lupus during a period of ADT. The RO attempted to obtain records showing the Veteran's periods of ADT while he was not on active duty, but no such records were located. Further, the Veteran was requested to provide any such records in his possession and/or provide the RO with his dates of ADT. The Veteran did not respond. The evidence also establishes that the Veteran did not have a diagnosis of lupus within one year of discharge from his first period of service which was in 1987, because the first diagnosis of lupus was in 2000, in between the two periods of active duty. Thus, service connection on a presumptive basis under 38 C.F.R. § 3.307, 3.309 is not warranted. Furthermore, there is no persuasive medical opinion to support the claim that any pre-existing lupus was aggravated by the Veteran's second period of active duty and neither the Veteran nor his representative has presented, identified, or even alluded to the existence of any such evidence or opinion. Lupus was not shown on the Veteran's entrance examination for his second period of service. Thus, the Veteran is entitled to the presumption of soundness at entry into his second period of service and clear and unmistakable evidence is necessary to find that the lupus pre-existed service and was not aggravated by service. In this case, the record clearly identifies the Veteran's initial lupus diagnosis in February 2000. Prior to, and since that time, the Veteran has been afflicted with dermatitis, but lupus was first shown in 2000, several years after the Veteran's first period of service, and prior to the second period of service. The diagnosis of lupus was based on a biopsy and the record does not show a prior diagnosis of lupus. Thus, the diagnosis of lupus clearly and unmistakably predated the second period of service which began in February 2003. The presumption of Though the Board recognizes that there was some worsening of the Veteran's lupus in 2006, that, as noted by the May 2013 VA examiner, was three years after his second period of active service and there was no treatment for lupus in the interim. Additionally, even with consideration of the Veteran's competent testimony that he suffered from a skin condition on the face beginning just prior to his deployment to Iraq, the evidence of record also shows that the Veteran's increase in severity during service was a flare-up during that time, and did not constitute a permanent worsening of the condition. The medical evidence dated after the Veteran's second period of service shows that the condition waxes and wanes; and, it improved after 2006. The examiner in May 2013 specifically opined that the lupus did not likely worsen during service because the objective evidence demonstrates that the rash improved after 2006 as noted by the treatment records. The Veteran's contention that his skin disorder worsened during the second period of active duty is found credible, but the fact that no permanent worsening is shown indicates that the pre-existing lupus was not clearly and unmistakably aggravated by service. Significantly, temporary or intermittent flare-ups of the preexisting condition during service are not sufficient to be considered aggravation unless the underlying condition (as contrasted to the symptoms) has worsened. See Davis (John F.) v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder is not presumed to have been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The May 2013 examiner's opinion constitutes probative and dispositive evidence on the medical nexus question. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) ('It is the responsibility of the BVA to assess the credibility and weight to be given the evidence') (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). It is notable that the examiner's opinion is based upon the objective evidence showing a diagnosis by biopsy of lupus. While the Board does not doubt the sincerity of his belief that his current lupus is a result of his active service, this claim turns on a medical matter. Though the Veteran may be competent to testify as to the sensory perceptions of his current disorder, questions of medical diagnosis and causation are within the province of medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Lay persons are limited to attesting to factual matters of which they have first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). As a layperson without the appropriate medical training or expertise, the Veteran is not competent to render a probative opinion on such a medical matter. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ('a layperson is generally not capable of opining on matters requiring medical knowledge'). Here, while the Veteran is competent to say he had skin problems, the Veteran is not competent to say that his in-service skin complaints were the result of or a manifestation or a permanent worsening of his pre-existing lupus and not non-service connected dermatitis. Hence, the submitted assertions in this regard do not constitute persuasive evidence in support of the claim for service connection. It is acknowledged that the May 2013 examiner did not word his medical opinion using the clear and unmistakable standard of proof; however, this is harmless error because the overall totality of the evidence, including the objective diagnostics, lay statements by the Veteran and the medical opinion provide clear and unmistakable evidence of a pre-existing lupus that was not clearly and unmistakably aggravated during service. There is no reason to find an opinion inadequate simply because the examiner failed to use specific legal language. It is the Board's determination as to whether all of the competent and credible evidence meet the clear and unmistakable standard of proof. In this case, it is undeniable that the lupus pre-existed service and was not permanently aggravated during the second period of active duty because the medical records show only temporary flare-ups of the condition. Under these circumstances, the Board must conclude that the Veteran's lupus clearly and unmistakably pre-existed service, and was not clearly and unmistakably aggravated by service. Thus service connection for lupus is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for lupus is denied. ____________________________________________ L. B. Cryan Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs