Citation Nr: 1336409 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 09-32 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for skin disfigurement of the face and back. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had active service from March 1941 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Cleveland, Ohio in which the RO in pertinent part, denied the Veteran's claim of entitlement to service connection for skin disfigurement of the face and back. Jurisdiction of the case was subsequently transferred to the RO in Phoenix, Arizona, as a result of the Veteran's relocation to such state. In June 2011, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a hearing at the RO. A copy of the hearing transcript has been associated with the claims folder. This case was previously before the Board in August 2011, October 2012, and May 2013. In those decisions, the Board remanded the issue for additional development. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The probative evidence of record does not show that the Veteran's current skin disfigurement of the face and back is related to his military service. CONCLUSION OF LAW Skin disfigurement of the face and back was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance With respect to the issue denied herein, 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements 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). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Prior to initial adjudication of the Veteran's claim, the RO's October 2008 letter advised the Veteran of the foregoing elements of the notice requirements. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The October 2008 letter provided the Veteran with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. 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). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, VA outpatient treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, the Veteran was afforded an opportunity to testify at a June 2011 hearing before the Board. See 38 C.F.R. § 20.704 (2013). In Bryant v. Shinseki, 23 Vet. App. 488, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the DRO or VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the basis of the prior determinations and noted the elements of the claim that were lacking to substantiate the claim for benefits. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of either hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. Furthermore, the Veteran was provided with VA examinations in connection with his claim for service connection for skin disfigurement of the face and back. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Pursuant to the Board's August 2011 remand, a VA examination was obtained in December 2011. Pursuant to the Board's October 2012 remand, a VA addendum opinion to the December 2011 VA examination was obtained in March 2013. In compliance with the Board's May 2013 remand, a VA examination and medical opinion were obtained in July 2013, as to whether the Veteran's claimed skin disfigurement of the face and back was incurred in service, and if so, whether it was related to his service. The Board finds this VA examination adequate, as it was based upon a complete review of the record, clinical examination of the Veteran with consideration of the Veteran's statements, and the VA examiner provided a written rationale for the conclusion reached. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Based on the foregoing, the Board concludes that there has been substantial compliance with the aforementioned remand directive with respect to the issue decided herein. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Finally, as there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Legal Criteria Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis The Veteran contends that his current skin disfigurement on the back, face, and head is the result of daily ultraviolet (UV) treatment that he underwent during service. In this regard, during a June 2011 hearing before the Board, he testified that he underwent such treatment while stationed aboard Unites States Coast Guard (USCG) CUTTER BIBB, in the Arctic. He further testified that he, along with other servicemen, sat under UV lights in order to receive Vitamin D. Service treatment records, to include a March 1941 induction physical examination, and a November 1945 separation physical examination are negative for complaints, treatment, or a diagnosis of any skin disorder. Post-service private treatment records include a June 2002 record that notes a possible diagnosis of seborrheic keratosis. A July 2003 pathology report indicates an atypical squamous proliferation; the physician's comment was to rule out skin cancer versus inflamed seborrheic keratosis. Subsequent records dated from December 2007 through 2009 demonstrate diagnoses of seborrheic keratosis and benign lichenoid keratosis. A December 2007 pathology report issued following biopsy indicates seborrheic keratosis, as well as underlying sebaceous hyperplasia of the right temple. A January 2009 pathology report issued following a second biopsy notes that sections reveal severely sun-damaged skin demonstrating a solar lentigo, associated with benign lichenoid keratosis with no definite atypia or malignancy identified. The Veteran underwent a VA examination in December 2011. Upon examination and review of the claims file, the examiner diagnosed papulosquamous disorder of seborrheic keratosis that spread over 70 percent of the Veteran's face and 90 percent of his back with several on the upper arms and chest. The examiner opined that the Veteran's current skin disorder was "less likely than not" incurred in or caused by service. In providing such opinion, the examiner stated that seborrheic keratoses were benign skin lesions that were common in the elderly or an inherited trait. She also noted that some keratoses might appear in sun exposed areas, but many appear in areas not exposed to UV rays. She concluded that while genetics and age were definite indicators for seborrheic keratoses, it could not be completely ruled that UV exposure had some effect on their development also. The Board found the December 2011 VA opinion to be inadequate for rating purposes, as the examiner failed to discuss any of the Veteran's private treatment records, nor did she opine as to whether the Veteran's current skin disorder was related to in-service UV exposure, instead she stated that UV exposure could not be ruled out. Private treatment records dated in 2012 note diagnoses of seborrheic keratoses. In an August 2012 statement, the Veteran reported that no one in his family had any skin imperfections. He further reported that he did not have any lesions below his waist, just on his upper body and face, where he was exposed to the UVA and UVB rays. In a March 2013 addendum opinion, the December 2011 VA examiner opined that the Veteran's current seborrheic keratoses were "less likely than not" incurred in or caused by service. In providing the opinion, the examiner indicated that the association of such diagnosis with sun exposure was not strong, stating, "Certainly we can not separate out the sun exposure during his military time from sun exposure experienced before and after his military service." The examiner concluded that the development of seborrheic keratoses was extremely common with time and age and noted that a vast majority of the population developed at least some. The Board found the March 2013 addendum opinion to be inadequate for rating purposes, as the examiner failed to discuss any of the Veteran's private treatment records, to include those dated in January 2009, namely, the pathology report that notes that the Veteran had severely sun damaged skin demonstrating a solar lentigo, associated with benign lichenoid keratosis with no definite atypia or malignancy identified. Further, the examiner did not address all of the Veteran's current diagnoses of record to include underlying sebaceous hyperplasia, noted in a December 2007 pathology report. The Veteran underwent another VA examination in July 2013. At the time, the Veteran reported that he was Vitamin D deficient while serving in the arctic in January 1942 until March 1943, so he and his fellow servicemen were treated with UV lights for 15 minutes every other day for several weeks. He further reported that he subsequently served in the South Pacific in August 1944, where he was shirtless for most of the time, and sustained a blistering sunburn shortly after he arrived in Guadalcanal. He reported that he initially noticed lesions on his face in approximately 1947 or 1948. He stated that he underwent a biopsy in 1952, which resulted in a diagnosis of a benign lesion. Upon examination, the examiner diagnosed seborrheic keratoses, sebaceous hyperplasia, and noted a prior diagnosis of actinic keratosis. The examiner further noted that the Veteran's private treatment records, to include a January 2009 record, show a benign lichenoid keratosis with associated solar lentigo, and a small shave biopsy of severely sun-damaged skin and underlying sebaceous hyperplasia, with no definite atypia or malignancy identified. The examiner noted that the Veteran had seborrheic keratoses on his face, neck, and back, which were benign lesions, as well as a few sebaceous hyperplasia, which were also benign. The examiner noted that the Veteran did not have any identifiable actinic keratoses. The examiner opined that such conditions were "less likely than not" incurred in or caused by service, to include exposure to UV treatment. In providing the opinion, the examiner noted the Veteran's aforementioned contentions. The examiner also noted that the January 2009 biopsy demonstrating severely sun-damaged skin was performed 50 to 60 years after the Veteran's discharge from service, which was in 1945. The examiner explained that it was impossible to separate the Veteran's UV light exposure that occurred in the 19 years prior to his entry into service, the exposure during his four years of service, and the subsequent 68 years of post-service exposure. She further explained that dermatological literature states that the first 18 years of sun exposure were extremely important as far as subsequent sun damage. She also noted that the Veteran spent the last six years of living in Phoenix, Arizona. The examiner referenced the December 2011 VA examination report, and noted that it was factual and well done. In this regard, she indicated that as far as human genetics were concerned, humans carried many hidden genes that did not manifest themselves. She stated that since seborrheic keratoses were not inherited in a great number of cases, the fact that the Veteran's family did not have such imperfections, was irrelevant. The examiner stated that the distribution of the Veteran's conditions, namely, his seborrheic keratoses, was the normal pattern for such benign, non-malignant tumors that were ubiquitous in our white male population. The examiner concluded that while the Veteran had a large number of seborrheic keratoses, doctors saw many patients with similar numbers. After reviewing the evidence of record, the Board finds that service connection is not warranted for skin disfigurement of the face and back injury. There are currently diagnosed disorders, to include seborrheic keratoses, actinic keratoses, and sebaceous hyperplasia. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). However, there is no competent and credible evidence of record linking the Veteran's current skin disorders to his active service. The Board has considered the Veteran's lay statements regarding the appearance of spots (lesions) on his face approximately two years after discharge from service. The Veteran is capable of making lay observations and his contentions with respect to a the appearance of spots on his face do serve as competent evidence of what he actually observed. Observations are within the realm of his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Diagnoses, however are not. Here, the Veteran's service treatment records are negative for complaints or diagnoses of any skin disorder. Moreover, post-service treatment records fail to document any complaints of or treatment for a skin condition for nearly 47 years after the Veteran's discharge from service. This expansive period without complaints or treatment for skin symptomatology is evidence that there has not been a continuity of symptomatology since service, and it weighs heavily against the claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Moreover, the probative evidence of record does not show that any current skin disorder of the face or back is related to the Veteran's active duty service. In this regard, it is noteworthy that after examining the Veteran, thoroughly reviewing the Veteran's post-service treatment records, and considering the Veteran's reported history and lay assertions, the July 2013 VA examiner opined that the Veteran's current conditions (seborrheic keratoses, actinic keratoses, sebaceous hyperplasia) were "less likely than not" incurred in or caused by service, to include exposure to UV treatment. In rendering this opinion, the examiner noted the Veteran's report of serving in the arctic in January 1942 until March 1943, when he was treated with UV lights for 15 minutes every other day for several weeks as a result of Vitamin D deficiency. The examiner further noted the Veteran's report of subsequently serving in the South Pacific in August 1944, where he was shirtless for most of the time. The examiner, however, also noted that while the medical evidence of record demonstrates severely sun-damaged skin in January 2009, such a finding was not until 50 to 60 years after the Veteran's discharge from service. The examiner explained that it was impossible to separate the Veteran's UV light exposure that occurred in the 19 years prior to his entry into service, the exposure during his four years of service, and the subsequent 68 years of post-service exposure. She further explained that dermatological literature states that the first 18 years of sun exposure were extremely important as far as subsequent sun damage. She also noted that the Veteran spent the last six years living in Phoenix, Arizona. Although the examiner found that it was impossible to separate the Veteran's pre- and post- service UV exposure from his in-service exposure, she provided an adequate explanation for her conclusion against the Veteran's claim. Further, she based that conclusion upon consideration of the Veteran's reported history, his post-service treatment, and a contemporaneous examination. She also described the Veteran's current skin disorders in sufficient detail so that the Board's evaluation of claim involving the disorder is a fully informed one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As to the Veteran's statement service events must have caused his skin problems because his family had no history of skin problems like seborrheic keratoses, the examiner stated that since such a condition was not inherited in a great number of cases, the fact that the Veteran's family did not have such imperfections was irrelevant. In this regard, she stated that the distribution of the Veteran's conditions, namely, his seborrheic keratoses, was the normal pattern for such benign, non-malignant tumors that were ubiquitous in our white male population. The examiner concluded that while the Veteran had a large number of them, doctors see many patients with similar numbers. The Board accords a significant probative value to the July 2013 VA examiner's opinion because it was rendered by a physician and is supported by a well-reasoned rationale. To extent that the Veteran contends that his skin disorders were caused by in-service exposure to UV treatment, the Board finds that his statements as to medical causation are not competent evidence to establish service connection for skin disfigurement of the face and back. The Veteran is not a medical professional competent to diagnose conditions and assign medical causation. The Board notes that in certain unique instances lay testimony may be competent to establish medical etiology or nexus. See Jandreau, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay statements are competent evidence regarding symptoms capable of observation and may provide sufficient support for a claim of service connection. Id.; see also Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Here however, the medical nature or cause of a skin disorder is not a simple question that can be determined based on mere personal observation by a lay person. The Board therefore finds that competency to answer the medical questions of whether the Veteran's skin disorders are related to or were caused by his military service does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge. See Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316. It is not shown otherwise that the Veteran possesses the ability, knowledge, or experience to provide such an opinion, as opposed to observed continuity-of-symptomatology. 38 C.F.R. § 3.159(a)(2); see also Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Accordingly, the Board finds that the Veteran's lay statements as to medical causation are not competent evidence to establish service connection for skin disfigurement of the face and back. Here, only independent medical evidence may be considered to support medical findings. The Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). In the absence of competent evidence of a skin disorder in service, or competent and probative evidence of a nexus between a current skin disorder and his active service, service connection is not warranted for this disorder. The Board has considered the benefit of the doubt doctrine when making these findings, but as discussed above, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for skin disfigurement of the face and back. 38 U.S.C.A. 5107(b); Gilbert, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for skin disfigurement of the face and back is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs