Citation Nr: 1334806 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-17 653 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a skin disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to September 1969, including combat service in the Republic of Vietnam, and his decorations include the Navy Commendation with Combat "V" and Combat Action Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. FINDING OF FACT The Veteran's skin disorder had its onset during combat service in Vietnam. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a skin disorder have been met. 38 U.S.C.A. §§ 1110, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS In this decision, the Board grants service connection for a skin disorder, which represents a complete grant of the benefit sought on appeal. As such, no discussion of VA's duty to notify and assist is necessary. 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). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; 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"). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) (West 2002) and its implementing regulation, 38 C.F.R. § 3.304(d) (2013), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, 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). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Further, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Veteran served in combat and was likely exposed to conditions that caused a chronic skin problem while serving in Vietnam given that such exposure is consistent with the circumstances, conditions, and/or hardships of that service. 38 U.S.C.A. § 1154(b). In fact, a July 1969 service treatment record documented his complaints and treatment for jungle rot on the left knee. As such, VA must presume the occurrence of the in-service injury. In addition, the post-service medical evidence shows that the Veteran has been diagnosed as having a skin disorder diagnosed as a lesion. Moreover, the Veteran reports the onset of this skin disorder during combat service in Vietnam. Further, the Board finds that the Veteran is both competent to report that he observed a skin abnormality, such as lesion, during and since serving in combat in Vietnam and that his account of having a skin problem since that time is credible. Likewise, the Board finds that the Veteran's wife, in her December 2010 statement in support of claim, is both competent to report on observing that the claimant had skin abnormalities such as a lesion since she first met the appellant 30 years ago and that her account of his having a skin problem since that time is credible. Furthermore, in December 2010 Milton S. Gaspais, M.D., Ph.D., opined that the Veteran's skin lesions are directly related to his tour in Vietnam and this medical opinion is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In light of the foregoing, the Board finds that the evidence is not sufficient to rebut the presumption that the Veteran's skin disorder became manifest during his combat service. See Reeves. In light of his in-service, combat-related trauma, the credible history of a skin disorder in and since service, and the diagnosis of a skin disorder (i.e., a skin lesion), the Board finds that service connection for a skin disorder is warranted because the disability had its onset in service. ORDER Service connection for a skin disorder is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs