Citation Nr: 1604434 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 10-00 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a skin condition, to include atopic dermatitis and tinea versicolor. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from August 1969 to February 1980, and had unverified service from November 1980 to May 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, denied entitlement to service connection for psoriasis and hypertension. In November 2015, the Veteran testified at a Board hearing at the RO in Waco, Texas, before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. After reviewing the contentions and evidence of record, the Board finds that the issues on appeal are more accurately stated as listed on the title page of this decision. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). In this regard, while the Veteran's claim identified the diagnosis of psoriasis, he has been variously diagnosed with different forms of a skin condition. Therefore, in consideration of the holdings in Brokowski and Clemons, the Board has recharacterized this claim as reflected on the title page. The issue of hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran experienced symptoms of a skin condition during service and has experienced symptoms of a skin condition since separation from service. 2. The Veteran's current skin condition was incurred in service. CONCLUSION OF LAW The criteria for service connection for a skin condition, to include psoriasis, atopic dermatitis, and tinea versicolor, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). Given the favorable outcome of this decision, no prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection - Applicable Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2015). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a 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 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). Service Connection for a Skin Condition - Analysis The Veteran contends that he is entitled to service connection for a skin condition. Specifically, he alleges that his skin condition began in service and has persisted since service. The Veteran's service treatment records contain several complaints of and treatments for rashes. The Veteran was treated twice in September 1969 for a rash, but no specific diagnosis was noted in his service treatment records. In April 1970, the Veteran was seen in the dermatology clinic and diagnosed with tinea versicolor. The referring physician noted that the rash was on the Veteran's trunk and had been there for a year. In January 1972, the Veteran was treated for a rash that had previously been diagnosed by dermatology as tinea versicolor. The Veteran reported at the time that the present rash was the same, but the doctor noted that it looked more like pityriasis. The Veteran was treated in May 1976 for a rash on both arms. The doctor noted that it looked like eczema. The Veteran was seen for a follow-up appointment in June 1976. The doctor again diagnosed eczema, and noted that the Veteran was frustrated and that a referral to Dermatology would be considered. The Veteran was seen again two weeks later, and the doctor noted that the eczema was still present on both arms. In July 1979, the Veteran was treated for a fine red rash all over his body. The rash was worse in the folds of his body. The doctor diagnosed the rash as allergic dermatitis, but gave no etiology. The Veteran was afforded a VA examination in October 2012 as to the nature and etiology of his skin condition. The VA examiner noted that the Veteran had been diagnosed with atopic dermatitis and tinea versicolor in the 1970s, in addition to prior diagnoses of psoriasis and eczema. The examiner diagnosed the Veteran's current skin condition as dermatitis. The examiner noted that the skin on the Veteran's hands is dry and calloused. The examiner opined that the Veteran's current skin condition is likely a continuation of the irritation he experienced while in the military, and noted that the Veteran's job in the military involved exposure to many irritants. In a November 2015 hearing, the Veteran indicated that his skin condition started in service and has continued ever since service. He stated that his skin condition comes and goes, but has never completely gone away. He also stated that doctors have at times given his skin condition various diagnoses, including psoriasis, eczema, and contact dermatitis. The repeated complaints of a skin rash in service, together with the VA examination report, and the Veteran's lay contentions, tend to show that the Veteran's current symptoms of a skin condition had their onset during service, that is, shows that the skin condition was "incurred coincident with" active service. See 38 C.F.R. § 3.303(a). All lay and medical evidence supports a finding that the Veteran's variously-diagnosed skin disorders began in service and have existed since that time. There is no probative evidence to the contrary. The Veteran's skin condition meets all three elements for service connection, as there was an in-service incurrence, there is a currently diagnosed skin condition, and the October 2012 VA examiner provided a nexus between the in-service and current skin conditions. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for direct service connection for a skin condition have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a skin condition, to include atopic dermatitis and tinea versicolor, is granted. REMAND The record does not contain the Veteran's military personnel records from his service in the Kansas Air National Guard. National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States; at all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id. Therefore, the Board finds that further development is needed to determine the status of the Veteran's service in the National Guard from November 1980 to May 1990, and to determine the dates of any periods of ACDUTRA. In the present case, the Veteran has been diagnosed with hypertension. The Veteran contends that his hypertension symptoms first manifested in service. Blood pressure readings from the Veteran's service and post-service treatment records through 1991 are as follows: Date Blood Pressure February 21, 1975 130/80 June 7, 1976 110/78 May 2, 1979 120/69 January 7, 1980 136/82 January 8, 1980 142/86 January 9, 1980 116/78 January 17, 1980 120/88 August 6, 1980 130/88 January 8, 1981 130/88 March 14, 1981 110/78 May 28, 1981 120/70 April 26, 1982 144/102 April 27, 1982 120/80 January 4, 1983 140/86 January 6, 1983 120/82 March 2, 1984 120/82 July 5, 1984 110/76 Date Blood Pressure August 18, 1984 138/96 August 20, 1984 132/86 January 6, 1985 130/88 February 24, 1985 120/84 April 26, 1985 128/78 May 8, 1985 128/80 November 12, 1985 130/90 February 26, 1986 122/98 January 7, 1988 134/82 January 7, 1989 130/88 February 10, 1989 123/76 June 23, 1989 120/82 August 11, 1989 118/90 August 11, 1989 130/90 May 5, 1990 130/64 May 5, 1990 130/70 January 21, 1991 150/90 The Veteran has not been afforded a VA examination. The VA must provide a VA examination in this instance as there is evidence of a current diagnosis of hypertension and the Veteran's service treatment records document elevated blood pressure readings, but there is insufficient competent medical evidence on file to decide the claim. See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As such, on remand, a VA examination should be obtained in order to assist in determining whether currently diagnosed hypertension first manifested in service, or is otherwise related to service. Accordingly, the case is REMANDED for the following action: 1. Determine the status of the Veteran's service in the National Guard from November 1980 to May 1990, including dates for all periods of active duty for training (ACDUTRA). 2. Schedule the Veteran for a VA examination on the nature and etiology of his hypertension. The claims file must be provided for the examiner's review, and the examination report should indicate that the claims file was reviewed. After reviewing all pertinent documents in the record and obtaining a complete medical history from the Veteran, the examiner should offer an opinion as to whether it is as least as likely as not (i.e., 50 percent or greater probability) that currently diagnosed hypertension was incurred in or is otherwise related to service. The examiner is asked to discuss the elevated blood pressure readings in the Veteran's service treatment records, which are listed in the Remand narrative, above. The VA physician must provide a detailed rationale for the opinions rendered. If the physician cannot provide the requested information without resort to speculation, it must be so stated with reasons why, and if an additional clinical evaluation is necessary to render the requested information, then that opportunity should be made available. 3. Thereafter, the RO should readjudicate on the merits the issue of service connection for hypertension. If the benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs