Citation Nr: 1331098 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 07-16 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for cystic acne. 2. Entitlement to service connection for residuals of keloid removal. 3. Entitlement to service connection for a right hip disorder, secondary to residuals of a service-connected right knee injury, status-post anterior cruciate ligament reconstruction (right knee disability). 4. Entitlement to service connection for a right ankle disorder, secondary to a service-connected right knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1987 to June 1988 and from January 2004 to January 2006. The Veteran also served additional periods of service with the Army Reserve from June 2007 through February 2013. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO). In January 2011 and February 2013 the Board remanded this case to the Appeals Management Center (AMC) for further development to include affording the Veteran VA examinations and associating service treatment records with the claims file. The AMC attempted to locate the Veteran's entrance and separation examinations from the period of service from January 2004 to January 2006, however they were unavailable. See March 2013 notice from the VA Records Management Center. The Veteran was afforded VA examinations in May 2013. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The issues of entitlement to service connection for residuals of keloid removal and for a right hip disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. With resolution of reasonable doubt in the Veteran's favor, the Veteran's cystic acne was incurred in or aggravated by active service. 2. A right ankle disorder was not incurred in or aggravated by active service. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for cystic acne are approximated. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. The criteria to establish service connection for a right ankle disorder have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in February and March 2006. These letters advised the Veteran of the information necessary to substantiate her claims and of her and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). These letters also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and she was afforded a meaningful opportunity to participate effectively in the processing of her claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. The Veteran's entrance and separation examinations for her period of service from January 2004 to January 2006 have not been located. See March 2013 response from the VA Records Management Center. However, as discussed below, the Board is denying the Veteran's claim based on lack of a currently diagnosed disability. The Veteran is also claiming that her right ankle disorder is secondary to her service-connected right knee disability, not that she injured it during her January 2004 to January 2006 tour of duty. See e.g., November 2006 statement. Accordingly, the Board concludes the duty to assist with obtaining medical records has been met. 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, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was afforded VA medical examinations in March 2006 and May 2013 for her right ankle claim. These examinations were conducted by medical professionals following a thorough examination and interview of the Veteran and review of the claims file. The examiners obtained an accurate history. The examiner provided detailed conclusions for the opinions that were reached. Therefore, the Board finds that the examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury or that service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a 'competent' source. The Board must then 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 such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with 'unique and readily identifiable features' that is 'capable of lay observation.' See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see 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'). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Cystic Acne The Veteran contends that her cystic acne began in service. For the reasons discussed below, the Board finds that service connection is warranted. A May 2004 private treatment record, while the Veteran was on active duty, noted the Veteran had cystic acne and a prescription medication was recommended. In an undated post-deployment examination the Veteran reported that she had cystic acne which began while she was deployed. Following separation from service, her March 2006 VA examination report noted she had minimal cystic acne which had improved with Accutane usage since 2004. At the Veteran's May 2013 VA examination she reported she had been treated for acne since 1997. The examiner noted that she had deep acne which affected less than 40 percent of her face and neck and affected body areas other than the face and neck as well. He did not relate the Veteran's acne to service. His rationale was that her acne occurred outside the dates of active duty service, it preexisted service, and was not worsened in service. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and the claim will be granted on this basis. 38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518 (1996); Brown v. Brown, 5 Vet. App. 413 (1993) (under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). While the May 2013 VA examiner did not relate the Veteran's acne to service, there is evidence of cystic acne while on active duty and in a post-deployment examination the Veteran stated that this condition began during active duty. Resolving reasonable doubt in favor of the Veteran, the criteria for a grant of service connection have been approximated. The Veteran's claim of service connection for cystic acne is granted. 38 U.S.C.A. § 5107 (West 2002). In granting service connection, the Board states no opinion as to the severity of the disorder for the purpose of establishing a service-connected rating. The determination will be made by the RO on receipt of this decision. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). Right Ankle Disorder The Board has reviewed the Veteran's service treatment records and there is no evidence that she complained of, was diagnosed with, or was treated for a right ankle disorder while in service. Although the Veteran was seen with complaints of right knee pain on numerous occasions, there is no reference to a right ankle disorder. The Veteran was afforded a VA examination in March 2006 for her right ankle. She denied injury to her right ankle, but reported frequent pain. The examiner found that the Veteran's right ankle was normal. At a December 2006 VA examination the examiner noted the March 2006 x-rays which were unremarkable for the right ankle. She was diagnosed with right ankle strain. The Veteran was again afforded a VA examination in May 2013. She complained of ankle pain beginning in 2002 following her right knee surgery. The examiner found no objective evidence to support a diagnosis of a right ankle condition. Although lay persons such as the Veteran are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the issue of diagnosing and determining the etiology of a right ankle disorder, this falls outside the realm of common knowledge of a lay person. The Veteran's assertion has been investigated by competent medical opinion, and found to be without merit. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (lay evidence may be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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). Without a current diagnosis of a disability, the Board cannot grant service connection. To prevail on the issue of service connection, a current disability must have existed on or after the date of application for that disability. See 38 U.S.C.A. § 1110; see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (agreeing that the requirement that a claimant have a current disability before service connection may be awarded is satisfied when a claimant has a disability at the time a VA claim is filed or during the pendency of that claim.). There is no competent evidence of a diagnosis of a right ankle disorder. Accordingly, the Veteran's claims for service connection must be denied. ORDER Entitlement to service connection for cystic acne is granted. Entitlement to service connection for a right ankle disorder is denied. REMAND The Veteran was afforded a VA examination in May 2013 for her claimed disorders. While the examiner opined that the Veteran's right hip was not proximately due to, or the result of, the Veteran's right knee disability, he did not offer an opinion as to whether the Veteran's service-connected right knee disability aggravated her right hip. The examiner also did not thoroughly discuss the Veteran's keloid removal, which occurred in 2005, during service, and again in 2011. Accordingly, an addendum opinion should be obtained. Accordingly, the case is REMANDED for the following action: 1. Request that the May 2013 examiner review the claims file and offer an addendum opinion. The entire claims file (i.e. any medical records contained in Virtual VA, CAPRI, and AMIE), to include this REMAND, must be reviewed by the examiner in conjunction with the opinion. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. The examiner should offer the following opinions: a) Is the Veteran's right hip disorder chronically worsened (aggravated) by her service-connected right knee disability? b) Whether there is clear and unmistakable evidence that shows the keloid condition was NOT permanently aggravated in service beyond the natural progression of the disorder. The examiner should take into account that the Veteran had keloids on entrance to service in June 1987, she had keloids removed in 2005, when she was on active duty, and again towards the end of 2011, when she may have been on active duty. She also stated that her keloids worsened in service as a result of wearing a helmet. In all conclusions, the VA examiner must identify and explain the medical basis or bases, with identification of the evidence of record. If the VA examiner is unable to make a determination without resorting to mere speculation, he or she should so state. Any necessary tests or studies must be conducted, and all clinical findings will be reported in detail. If further examination of the Veteran is necessary to provide the requested opinion, the Veteran should be scheduled for an additional examination. It is the Veteran's responsibility to report for any examination scheduled, and to cooperate in the development of the case; the consequences of failing to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2012). 2. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 3. After completing the above, and any other development deemed necessary, the RO should readjudicate the Veteran's claims. If the benefits sought on appeal are not granted, the Veteran and her representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs