Citation Nr: 1717536	
Decision Date: 05/19/17    Archive Date: 06/05/17

DOCKET NO.  08-12 296	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to service connection for a chronic skin disorder to include skin cancer, to include as due to exposure to herbicide agents.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from August 1968 to August 1970, including service in the Republic of Vietnam.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.  The RO in Chicago, Illinois, currently has jurisdiction over the Veteran's VA claims folder.  

The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in January 2012.  A transcript of this hearing is of record.

In April 2012, the Board, in pertinent part, remanded the skin disorder claim for further development.  That claim has now been returned for additional appellate consideration.

The Board notes that the appeal has a complex procedural history, and included other issues in addition to the skin disorder claim such as entitlement to a total rating based upon individual employability (TDIU).  However, the other issues have either been allowed or finally adjudicated such that only the skin disorder claim remains in appellate status.  For example, an October 2015 rating decision granted the TDIU, effective January 19, 2007.  The Veteran has not, based upon the evidence available for the Board's review, submitted a timely Notice of Disagreement (NOD) with respect to the effective date of the TDIU.

The Board further notes that the Veteran was previously represented by a private attorney with respect to this appeal.  However, by a November 2016 statement, that attorney noted he was no longer representing the Veteran before the VA, and that the representation had ended in January 2016.  The Veteran has not appointed a new accredited representative for this appeal.


FINDINGS OF FACT

The preponderance of the competent medical and other evidence of record is against a finding the Veteran has a chronic skin disorder, including skin cancer, that was incurred in or otherwise the result of his active service to include his presumed exposure to herbicide agents therein.


CONCLUSION OF LAW

The criteria for a grant of service connection for a chronic skin disorder, to include skin cancer, are not met to include as due to exposure to herbicide agents.  38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).  In this case, however, it does not appear the Veteran contends there is any deficiency in the notification and assistance he has received in this case.  Accordingly, the Board need not search for, or address, any such argument.  See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015).  The Board will therefore proceed to the merits of the appeal.

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) (table).  

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).

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 symptoms.  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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 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); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

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 (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).  Moreover, the United States Court of Veterans Claims (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 v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  

Initially, the Board notes that the Veteran's service treatment records do not appear to contain entries showing a diagnosis of or treatment for skin problems while on active duty.  Further, his skin was clinically evaluated as normal on his 1968 pre-induction examination and 1970 separation examination.  He also indicated on a Report of Medical History completed concurrent with his separation examination that he had not experienced skin disease.  

The Board acknowledges that there is evidence of a skin problems in the post-service medical records.  For example, private treatment records dated in August 2008 reflect he has been diagnosed with (1) dermal reparative reaction; (2) actinic keratosis;(3) lentigos, no atypia; (4) cherry angiomas; (5) seborrheic keratosis; and cicatrix.  However, the first competent medical evidence of such skin disorders appears to be years after his separation from service.  

The Board notes the Veteran served in Vietnam and is thus presumed to have been exposed to herbicide agents, including Agent Orange, during service.  38 U.S.C.A.
§ 1116; 38 C.F.R. 3,307, 3.309(e).  Because he was exposed to an herbicide agent during service, certain diseases are presumed to have been incurred in service, if manifest to a compensable degree within specified periods, even if there is no record of such disease during service.  Id.  Review of the record does not reflect he has been diagnosed with a skin disorder such as chloracne that are subject to presumptive service connection under 38 C.F.R. § 3.309(e).  However, the unavailability of presumptive service connection for a disability based on exposure to herbicide agents does not preclude a veteran from establishing service connection with proof of direct causation, to include via such exposure.  Stefi v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  Nevertheless, as he has not been diagnosed with a skin disorder that is presumptively associated with exposure to herbicide agents, and the first competent medical evidence of his current skin disorder(s) is years after service, the Board finds that competent medical evidence is required to resolve this claim.

Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion.  Consequently, his contentions cannot constitute competent medical evidence.  38 C.F.R. 
§ 3.159(a)(1).  No competent medical opinion is otherwise of record which supports a grant of service connection for a skin disorder.  Rather, a September 2016 VA examination, which diagnosed actinic keratosis and lentigo, is against the claim.  Specifically, the examiner opined that the Veteran's skin disorders are less likely than not incurred in or caused by the Veteran's military service including exposure to Agent Orange.

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.").  

As an initial matter, the Board notes that VA examiners are presumed qualified to render competent medical opinion(s), and the Veteran has not questioned the qualifications of the September 2016 VA examiner.  See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009).  The examiner was familiar with the Veteran's medical history from review of the VA claims folder.  Further, the examiner's opinion was not expressed in speculative or equivocal language, and was supported by stated rationale consistent with documented medical evidence of record.  Moreover, no competent medical evidence is of record which explicitly refutes the VA examiner's opinion to include supporting rationale.  Therefore, the Board finds this examination is adequate, persuasive, and entitled to significant probative value in the instant case.

For these reasons, the Board concludes the preponderance of the competent medical and other evidence of record is against a finding the Veteran has a chronic skin disorder, including skin cancer, that was incurred in or otherwise the result of his active service to include his presumed exposure to herbicide agents therein. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case.  See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  Consequently, the benefit sought on appeal with respect to this claim must be denied.

The Board also takes note that the Veteran reported at the September 2016 VA examination that he no longer wised to pursues service connection for his skin disorder due to service.  See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.204.


ORDER

Service connection for a chronic skin disorder to include skin cancer, to include as due to exposure to herbicide agents, is denied.





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

Department of Veterans Affairs