Citation Nr: 1502472 Decision Date: 01/16/15 Archive Date: 01/27/15 DOCKET NO. 10-40 811A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for vitiligo. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to June 1971. This case 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 Houston, Texas. Initially, the Board notes that the August 2010 statement of the case also addressed a claim of entitlement to a compensable evaluation for bilateral hearing loss; however, the Veteran limited his appeal to the issue of reopening the claim of service connection for vitiligo in his October 2010 substantive appeal, and he did not perfect an appeal as to this other issue. Therefore, the increased evaluation claim is no longer in appellate status, and no further consideration is necessary. A hearing was held before the undersigned Veterans Law Judge at the RO in San Antonio, Texas, in July 2013. A transcript of the hearing is of record. In a January 2014 decision, the Board reopened the above claim and remanded the case for further development. The case was subsequently returned to the Board for appellate review. Thereafter, the Board requested an advisory medical opinion from the Veterans Health Administration (VHA) in June 2014. The Veteran and his representative were sent a copy of the opinion and given 60 days to submit further evidence or argument; however, the Veteran did not submit any additional evidence thereafter. See 38 C.F.R. §§ 20.901, 20.903 (2014). The Board acknowledges the Veteran's May 2014 written statement, in which he indicated that he will be submitting additional evidence in support of his appeal at his future Board hearing. Nevertheless, the Veteran was afforded a Board hearing, the testimony of which is of record, as noted above. In addition, the Veteran was afforded a 60-day period following the VHA opinion notification letter (in addition to the initial time period following his May 2014 written statement) to submit additional evidence or argument in support of his claim, but he failed to do so. Therefore, with respect to the issues raised in this written statement, the Board concludes that to proceed with adjudication of this case at this time is not prejudicial to the claimant. This appeal was processed using the Veterans Benefits Management System (VBMS). The Virtual VA electronic claims file does not contain additional documents pertinent to the present appeal, with the exception of the Board hearing transcript. FINDING OF FACT The Veteran's preexisting vitiligo did not increase in severity beyond its natural progression during his active service. CONCLUSION OF LAW Vitiligo was not aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2014); 38 C.F.R. § 3.159(b) (2014); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO provided the Veteran with a notification letter in April 2009, prior to the initial decision on the claim. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. In the letter, the RO notified the Veteran of the evidence necessary to substantiate the claim and of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file. The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein. The record also includes written statements provided by the Veteran and his representative, as well as a transcript of the Board hearing. The Veteran was afforded a VA examination in April 2012 in connection with his claim, and a clarifying opinion was obtained in March 2014. The Board requested a VHA advisory medical opinion and received an October 2014 responsive opinion. The Veteran and his representative were provided with a copy of the opinion and an opportunity to submit further evidence or argument. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination report and VA and VHA opinions, when taken together, are adequate to decide the case because they are predicated on a review of the claims file, as well as on an examination during which a history was solicited from the Veteran. The adequate opinions also sufficiently address the central medical issues in this case to allow the Board to make a fully informed determination and are supported by rationale. Id. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran also testified at a hearing before the undersigned Veterans Law Judge in July 2013. The Veterans Law Judge clearly set forth the issue to be discussed, sought to identify pertinent evidence not currently associated with the claims folder, and elicited further information when appropriate. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate the claim. As such, the Board finds that VA complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). There has been no allegation otherwise. The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis Service connection may be established for 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, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). The disorder at issue is not considered a chronic disease as enumerated for VA compensation purposes. As such, the provisions for continuity of symptomatology after discharge are not for application in this case. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Every veteran is presumed to have been in sound condition at entry into service, except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that an injury or disease existed before entry and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. The law provides that an increase in disability must consist of worsening of the enduring disability. Davis v. Principi, 276 F.3d 1341, 1344 (Fed. Cir. 2002). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). See also Davis, 276 F.3d at 1345 (holding that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is not warranted for vitiligo. The Veteran has contended that his vitiligo, which existed prior to his military service, progressed at an abnormally rapid rate during service, including as a result of stressful in-service circumstances. See, e.g., June 1971 original claim; March 2009 written statement; July 2013 Bd. Hrg. Tr. at 3-8. He currently has widespread vitiligo. See, e.g., June 2010 Dr. S.M. private treatment records. The June 1969 entrance examination report notes several discolorations over the Veteran's entire upper torso and moderate vitiligo. He received treatment for his vitiligo during service. See March 1970, July 1970, and February 1971 to June 1971 service treatment records. The March 1971 separation examination notes patches of depigmentation scattered over the Veteran's entire body. The Veteran has contended that a portion of a March 1971 dermatology consultation report in the service treatment records noting a history of "patches of leukoderma of face, torso, [and] extremities since age 16" contradicts the observations made on the entrance examination and is not accurate, inasmuch as he reports that he did not recall having spots on his extremities at that age, and any spots present at that time were very small (nickel or quarter-sized). See, e.g., June 1971 original claim; July 2013 Bd. Hrg. Tr. at 3-5, 11. Initially, the Board notes that the presumption of soundness does not apply in this case, as vitiligo was specifically noted on the entrance examination. Indeed, the Veteran's claim has been asserted on an aggravation basis dating back to his original claim in 1971. Thus, the remaining question is whether the Veteran's preexisting vitiligo was aggravated during service. There are several medical opinions of record pertaining to the Veteran's claim. In evaluating the individual opinions, Dr. F.B. (initials used to protect privacy), a private treatment provider, concluded that the Veteran's service duties aggravated his vitiligo symptoms that have persisted. See January 2010 written statement. The Board affords limited probative value to this opinion, as it is without rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Significantly, the remainder of the medical opinions weigh against the claim. An April 2012 VA examiner determined that it was unlikely that the Veteran's vitiligo was aggravated beyond its natural progression by his military service. In so finding, he stated that the natural progression of generalized vitiligo is to worsen over time with involvement of larger areas of skin; the time course may vary, but some individuals may undergo rapid total body depigmentation in two years. The examiner also noted that environmental factors, stress, and major life crisis have been thought to be possible risk factors for precipitating or causing vitiligo, but that there was no mention in the medical literature of these factors permanently aggravating the disorder. In addition, he indicated that trauma to the skin may cause new areas of vitiligo to form, but noted that the Veteran did not recall experiencing skin trauma during service. The examiner further indicated that the service treatment records show documented improvement of skin lesions on the Veteran's face; however, he observed conflicting notations in the service treatment records as to the severity of the vitiligo prior to service. A March 2014 VA examiner (based on the April 2012 VA examination) also determined that the Veteran's vitiligo was not aggravated beyond its natural progression by his military service. The examiner's rationale for this opinion is substantially similar to that of the prior VA examiner, including a notation that there was no mention in the medical literature of stress aggravating or affecting the progression of vitiligo. While the VA examiners addressed some questions related to the Veteran's vitiligo, it is unclear if the examiners considered the complete history of the development of the disorder, including his report as to the contradicting service treatment records, in providing these opinions. The probative value of these opinions is therefore lessened. Nevertheless, the October 2014 VHA opinion by the dermatologist fully addresses the remaining questions on the issue of aggravation. The physician determined that the increase in severity of the Veteran's vitiligo during service was consistent with the natural progression of the disease. In so finding, he noted that, given the natural propensity of vitiligo to spread (and even to spread rapidly), the increase in severity of the Veteran's vitiligo was not unusual. He noted that, even deferring to the Veteran's report that he did not have involvement of the extremities at age 16, the conclusion that the vitiligo had progressed during service would be the same. Finally, the VHA physician indicated agreement with the prior VA examiners that there was no convincing evidence in the medical literature that situational stress aggravates or affects the progression of vitiligo. The Board affords substantial probative weight to this opinion, as it is based on a review of the claims file, to include the Veteran's contentions and the medical evidence, and an accurate characterization of the evidence of record, and it is supported by detailed rationale. See Nieves-Rodriguez v. Peake, supra. The VHA physician also considered the Veteran's report of the pre-service state of his vitiligo, but still found that the increase in severity was consistent with the natural progression of the disease. The Board has considered the statements of the Veteran and his representative. The Veteran is certainly competent to report as to the observable symptoms he experiences, such as an onset of his skin problems, and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, competence must be distinguished from probative weight. To the extent that the Veteran and his representative are competent to opine on this matter, the Board finds that the specific, reasoned opinions of the medical providers are of greater probative weight than the more general lay assertions in this regard. The medical providers have training, knowledge, and expertise on which they relied to form their opinions, and they provided rationale for them. In addition, the Board acknowledges the Veteran's competent statement that his doctors told him initially that the progression of his vitiligo was due to stress; however, he indicated that later on, they told him that they were not exactly sure. See Bd. Hrg. Tr. at 7. In any event, this statement is not conclusive on the question of aggravation, and the most probative evidence in this case, as discussed in detail above, is against the claim. Based on the foregoing, the Board finds that the weight of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49, 53. ORDER Entitlement to service connection for vitiligo is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs