Citation Nr: 1337814	
Decision Date: 11/19/13    Archive Date: 12/06/13

DOCKET NO.  08-21 899	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to service connection for a skin disorder, to include fibroepithelial polyps, seborrheic keratosis, poikiloderma of civatte, and idiopathic guttate hypomelanoisis.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Laura E. Collins, Associate Counsel

INTRODUCTION

The Veteran had active service from August 1967 to August 1969, to include combat service in Vietnam, and from September 1986 to August 2007.  His awards and decorations include a Bronze Star Medal with Combat "V" Device for valor in combat against enemy forces, a Combat Infantryman Badge, the Vietnam Service Medal with three Bronze Stars, the Republic of Vietnam Campaign Medal, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation Badge.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the VA Regional Office (RO) in San Juan, Puerto Rico.

The Veteran originally claimed entitlement to service connection for skin condition.  The United States Court of Appeals for Veterans Claims (Court) has held that "a claimant's identification of the benefit sought does not require any technical precision."  Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009); see also Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007).  In light of the Veteran's skin diagnoses of record, the Board has recharacterized the issue as reflected on the title page.

In his notice of disagreement, the Veteran requested a hearing before a Decision Review Officer.  Such a hearing was scheduled and then, at the Veteran's request, rescheduled for September 2009.  However, the Veteran subsequently withdrew that request.  As such, his hearing request is deemed withdrawn. 

In January 2012, the Board remanded this case for additional development.


FINDING OF FACT

The Veteran's skin disorder, including fibroepithelial polyps, seborrheic keratosis, poikiloderma of civatte, and idiopathic guttate hypomelanoisis, had its onset in service.


CONCLUSION OF LAW

Fibroepithelial polyps, seborrheic keratosis, poikiloderma of civatte, and idiopathic guttate hypomelanoisis were incurred in service.  38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary.

Service connection may be granted when "the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service."  38 C.F.R. § 3.303(a).  Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

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).  

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 his current symptomatology.  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, 581 F.3d at 1316; 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); Jandreau, 492 F.3d at 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).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the 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 & Supp. 2012).  Moreover, the 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).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza,7 Vet. App. at 511.  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").

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 Veteran.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

The Veteran contends that his skin disorder began in service and has continued to the present.  Alternately, he contends that it is due to Agent Orange exposure.

The February 2012 VA examiner stated that the Veteran was currently diagnosed with benign neoplasms, namely fibroepithelial polyps.  Based on a review of the record, he noted that this condition was diagnosed in September 2005, while the Veteran was on active duty.  Private treatment records show, and the VA examiner noted, that such a lesion was surgically excised in the same month.  Thus, the Veteran's currently diagnosed fibroepithelial polyps were first diagnosed and treated in service.

The February 2012 VA examiner diagnosed three additional current skin conditions: seborrheic keratosis, poikiloderma of civatte, and idiopathic guttate hypomelanoisis.  He opined that these diagnoses were less likely than not related to service because they were not noted in the service treatment records (STRs), and are due to aging and sun exposure.

However, the STRs obtained in this case are incomplete and do not reflect the entirety of the Veteran's more than 30 years of active duty.  When service records are missing or lost, the Board has a heightened duty to provide reasons and bases for its findings and conclusions and to consider carefully the benefit-of-the-doubt rule.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005).

The Veteran asserted in his substantive appeal that his skin condition started in service.  While his STRs are negative for complaints, diagnosis, or treatment of seborrheic keratosis, poikiloderma of civatte, or idiopathic guttate hypomelanoisis, he is competent to report a history of symptoms that began in service.  38 C.F.R. § 3.159(a)(2); Washington, 19 Vet. App. At 368; Layno.  Moreover, the mere fact that his account is not supported by contemporaneous clinical evidence does not render it inherently incredible.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). 

In its capacity as a finder of fact, the Board finds the Veteran is credible as to his reports of the onset and recurrence of skin symptoms.  His STRs are incomplete and the Board has a heightened duty to carefully the benefit of the doubt.  Moreover, the VA examiner stated the conditions were due to aging and sun exposure.  The majority of the Veteran's aging and lifetime sun exposure occurred on active duty, as he served for more than 30 years and separated from service at age of 59.  Resolving reasonable doubt in favor of the Veteran, the Board finds his lay evidence regarding the onset and recurrence of skin symptoms to be credible. 

Because the vast majority of the Veteran's aging and lifetime sun exposure occurred on active duty, the VA examiner's statement that the current diagnoses of seborrheic keratosis, poikiloderma of civatte, and idiopathic guttate hypomelanoisis were due to aging and sun exposure actually supports the Veteran's assertion that his current disability began in and has continued since service.  For this reason, the Board finds that the VA examiner's medical opinion actually supports the Veteran's claim of service connection.

Service connection may be granted when "the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service."  38 C.F.R. § 3.303(a).  The evidence in this case establishes that the Veteran's fibroepithelial polyps were incurred coincident with service and service connection is warranted.

Resolving all reasonable doubt in favor of the Veteran, the medical and lay evidence also establish that the Veteran's seborrheic keratosis, poikiloderma of civatte, and idiopathic guttate hypomelanoisis were incurred coincident with service and service connection is warranted.  As service connection is being granted on a direct basis, consideration of other theories of entitlement is moot.


ORDER

Service connection for skin disorder, to include fibroepithelial polyps, seborrheic keratosis, poikiloderma of civatte, and idiopathic guttate hypomelanoisis, is granted.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs