Citation Nr: 1335465 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-16 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for scars on the back of the neck. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active duty service in the United States Marine Corps from July 1959 to July 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In May 2011, the Veteran testified at a hearing before a Decision Review Officer (DRO hearing). In May 2013, the Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are associated with the Veteran's claims folder and Virtual VA file. A review of the Virtual VA paperless claims processing system reveals a transcript of the Veteran's May 2013 videoconference hearing testimony, which has been reviewed by the Board. FINDING OF FACT The Veteran has scars on the back of the neck that are residuals of a skin condition that began during his military service. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the Veteran has scars on the back of the neck that were incurred in active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION With regard to the issue of service connection for scars on the back of the neck, a review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of a VCAA letter from the RO to the Veteran dated in May 2010. In any event, if any defect in VCAA notice or assistance is found, such defect is not prejudicial to the Veteran, given the completely favorable disposition of this particular service connection issue. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Governing Laws and Regulations for Service Connection Veterans are entitled to compensation from the VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. §§ 3.303, 3.306. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Under 38 C.F.R. § 3.303(a), service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Federal Circuit Court recently held that diseases that would be considered "chronic" in a medical sense, but which are not listed in 38 C.F.R. § 3.309(a) as an enumerated "chronic disease," may still qualify for service connection under the three-element test for disability compensation described in § 3.303(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Competent medical evidence means 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 mean 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). 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 the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Federal Circuit has held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). That is, 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, 581 F.3d at 1316. See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In short, 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 on the issues of diagnosis and medical causation. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). For instance, a layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). In contrast, a layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma. Layno v. Brown, 6 Vet. App. 465, 469 (1994). If the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that evidence against other evidence of record in making its determination regarding the existence of service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Analysis - Service Connection for Scars to the Neck The Veteran has contended that he has scars to the back of the neck that are residuals of a skin condition that began during his active service. Specifically, he has asserted that he was initially treated at the Camp Lejeune, North Carolina 2nd Marines Service Battalion dispensary sometime in late 1959 or early 1960 for several growths on his neck that omitted pus. He has indicated that the growths on the back of his neck were lanced by military medical personnel, and a wick was placed in the wounds to drain them. The Veteran has stated that he was diagnosed with furuncles (boils). He was treated for several weeks, and bandages were placed on the wounds to keep them clean. Several months later, in May 1960, the Veteran was transferred to the Marine Corps Air Station in Cherry Point, North Carolina, at which time the growths on his neck returned. A shot of antibiotics were used help to clear up the furuncles, but the Veteran has contended that he was in severe pain for several days due to the injection. He required the help of a fellow soldier, N.K., his bunkmate (initials used to protect privacy), to assist him with dressing for a few days. He has said that he experienced flare-ups of the skin condition on the neck over the years and has claimed that he has residual scars on the back of his neck. He has admitted that he never received post-service treatment for the condition. See February 2011 NOD; June 2010 Veteran's statement; May 2011 DRO hearing testimony at pages 3-6; May 2013 videoconference testimony at pages 4-12; June 2010 VA skin examination. Upon review of the evidence of record, the Board concludes that the Veteran is entitled to service connection for scars on the back of the neck. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the present case, there is sufficient evidence that the Veteran meets the threshold criterion for service connection of current scars on the back of the neck. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. Specifically, a June 2010 VA examiner diagnosed three scars on the back of the Veteran's neck. Consequently, the determinative issue is whether the Veteran's current scars on the neck are somehow attributable to his alleged treatment for furuncles during his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). The Veteran's service treatment records dated from 1959 to 1963 do not document any complaints, treatment, or diagnosis of scars or a skin disorder on the back of the neck. Moreover, upon separation in July 1963, no objective skin or scar abnormality was found, although scars were noted on the knees and right hand. The Veteran contends that the relevant service treatment records dated between late 1959 and May 1960 from the Camp Lejeune, North Carolina 2nd Marines Service Battalion dispensary and the Marine Corps Air Station in Cherry Point, North Carolina, are missing and not present in the claims folder. In any event, the absence of medical evidence of in-service treatment or injury is not in and of itself fatal to a claim for service connection, but rather is just one factor for consideration. The Veteran is competent to report symptoms and treatment for a skin disorder to the back of his neck during and after his military service. Layno, 6 Vet. App. at 469. See also 38 C.F.R. § 3.159(a)(2). The Court has held that a lay person may testify as to an incident or event that resulted in a physically observable injury. Harvey v. Brown, 6 Vet. App. 390, 393 (1994). In fact, in McCartt v. West, 12 Vet. App. 164, 167 (1999), the Court indicated that a skin condition is the type of condition lending itself to lay observation. Although the Veteran is clearly competent to report his in-service skin symptoms and treatment, the Board must also determine if the lay evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible and probative). In this regard, the Board finds that the Veteran's various lay statements and hearing testimony throughout the appeal are consistent and plausible. In addition, there is a lay statement O submitted by a fellow soldier (N.K.) in January 2011. N.K. reported that he served with the Veteran and witnessed his symptoms and treatment for skin problems on the back of the neck in early 1960. His lay statement adds credibility and weight to the Veteran's assertions regarding the existence of and treatment for a skin disorder on the back of the neck during active service. Following service, the Veteran credibly states that he had flare-ups of the skin condition over the years and still has "lumps" on the back of his neck. See June 2010 Veteran's statement. He also honestly admits that he never sought post-service treatment for the skin disorder. The Board has considered the Court's holding in Ardison v. Brown, 6 Vet. App. 405, 408 (1994), a case in which, similar to the present case, a skin disorder had "active and inactive stages" or was subject to remission and recurrence. Most importantly, there is medical evidence of a nexus or link between the Veteran's current scars on the back of his neck and his competent and credible lay report of in-service treatment for skin infections on the back of his neck in 1960. Holton, 557 F.3d at 1366. See also 38 C.F.R. § 3.303(a), (d). Specifically, the June 2010 VA skin examiner reviewed the claims folder, discussed the Veteran's reported history, and found that the Veteran currently has three scars on the back of his neck. The etiology of these scars was "sebaceous cysts with cicatrix" on the back of the neck during an in-service infection in 1959. Where a Veteran has provided lay testimony of an in-service injury, unless the Board finds that the testimony is not credible, an examiner may not ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). In fact, the Court has held that even the absence of in-service documentation could not constitute negative evidence and that a VA examiner had to consider the Veteran's lay report regarding the occurrence of the injury. Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). The Court has further emphasized that VA cannot reject a medical opinion simply because it is based on a history supplied by the Veteran and that the critical question is whether that history was accurate. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); see, e. g., Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on a Veteran's statement renders a medical report incredible only if the Board rejects the statements of the Veteran). In the present case, as discussed above, the VA examiner properly considered the Veteran's reported lay history, which the Board has found to be credible. Overall, the June 2010 VA skin examiner's examination and opinion was thorough and accurately considered and addressed the Veteran's history and lay assertions and relevant longitudinal complaints. Notably, the claims folder contains no evidence of any intercurrent injury to the back of the Veteran' neck since his separation from service in 1963. See 38 C.F.R. § 3.303(b). At his May 2013 videoconference hearing, the Veteran specifically denied any other injuries to the back of his neck after service, including a scar, a stitch, or a broken bone. See testimony at page 11. Accordingly, resolving doubt in the Veteran's favor, the evidence supports service connection for scars on the back of the neck. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Subject to the provisions governing the award of monetary benefits, service connection for scars on the back of the neck is granted. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs