Citation Nr: 1722650 Decision Date: 06/19/17 Archive Date: 06/29/17 DOCKET NO. 09-39 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Service connection for a skin disorder, claimed as chloracne, to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Ragheb, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1968 to June 1972. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2007 rating decision by the Department of Veterans Affairs VA Regional Office (RO) in Jackson, Mississippi. The Board has reviewed both the Veterans Benefits Management System (VBMS) and "Virtual VA" files so as to ensure a total review of the evidence. In September 2015, the Board remanded the issue on appeal to the Agency of Original Jurisdiction (AOJ) in order to provide the Veteran with a VA examination. Because the above-referenced development has been completed, the Board finds that the AOJ substantially complied with the September 2015 Board remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. The Veteran had in-country service in the Republic of Vietnam during the Vietnam era. 2. The Veteran has a current skin disability of folliculitis and hyperpigmentation. 3. The current folliculitis and hyperpigmentation had its onset in service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for folliculitis and hyperpigmentation are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, the Board is granting service connection for skin disability (diagnosed as folliculitis and hyperpigmentation), which constitutes a full grant of the benefit sought on appeal with respect to this claim. As there remains no aspect of this claim to be further substantiated, there is no further VCAA duty to notify or assist, or to explain compliance with VCAA duties to notify and assist. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection for Skin Rash Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). 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 evidence 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); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Notwithstanding the above, however, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See 38 C.F.R. § 3.159(a)(2); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). Lay evidence can be competent and sufficient evidence of a diagnosis 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 at 1376-77. Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Jandreau at 1376-77. The Veteran contends that service connection for rash on the face, neck, chest, and back (including chloracne) is warranted as a result of exposure to Agent Orange during service. The record reflects that the Veteran had in-country service in the Republic of Vietnam during the Vietnam era; therefore, in-service herbicide exposure is presumed. See 38 C.F.R. § 3.307(a)(6)(m). The Board finds that the Veteran has a current skin disability. The August 2016 VA examination report shows diagnoses of folliculitis and hyperpigmentation. While the Veteran has asserted that he was diagnosed with chloracne in the 1980s, the record shows no evidence of a diagnosis of chloracne during or immediately prior to the appeal period. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (recognizing the disability could arise at any time during the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (recognizing disabilities that occur immediately prior to filing of a claim). The Veteran's reported skin symptoms were fully considered and diagnosed as folliculitis and hyperpigmentation by the August 2016 VA examiner. Accordingly, the grant herein of service connection for folliculitis and hyperpigmentation constitutes a full grant of the benefit sought on appeal and it grants service connection for the diagnosed disability that accounts for all the reported skin symptoms, leaving no skin symptoms for which service connection is not granted, and for which a disability rating will not be provided. The Board also finds that the evidence is in relative equipoise on the question of whether the current diagnosed folliculitis and hyperpigmentation began in service, that is, whether folliculitis was directly "incurred in" service. Evidence weighing in favor of this finding includes the Veteran's statements that he has had a recurrent rash since service in Vietnam. A December 1996 VA examination report shows that the Veteran reported that he began to have skin problems in March or April 1969 after being in Vietnam for about five months. The Veteran reported that the rash had been recurring since service with episodes occurring three to four times per year, each lasting approximately three to four weeks. See also September 2006 VA Form 21-526. The Veteran is competent to report skin disorder symptoms experienced at any time. See McCartt v. West, 12 Vet. App. 164, 167-68 (1999) (a veteran is competent observe skin conditions such as boils, blotches, and rashes). The Board also finds the above-referenced reports of skin symptoms in service and after service separation to be credible. The service treatment record shows no evidence of diagnosis, complaints, or treatment for a skin disorder during service; however, the absence of contemporaneous medical evidence is only one factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v, 21 Vet. App. at 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The evidence weighing against a finding of in-service onset of folliculitis and hyperpigmentation includes the May 1972 service separation examination report, which shows a normal clinical evaluation of the skin, with no reports by the Veteran of current symptoms or a history of skin disease. Resolving reasonable doubt in the Veteran's favor on this question, the Board finds that symptoms of the current folliculitis and hyperpigmentation began during service, that is, folliculitis and hyperpigmentation was directly incurred in service. 38 C.F.R. § 3.303(a), (d). The Board notes that the record contains an August 2016 VA negative nexus opinion with respect to the relationship between folliculitis and active service; however, because the weight of the evidence shows that folliculitis and hyperpigmentation began during service, so were incurred in service, a medical nexus opinion was not necessary to establish service connection. The Board does not need to reach the weight assignable to this opinion because the Board is granting service connection on a direct basis because of in-service incurrence or onset of folliculitis and hyperpigmentation symptoms that continued after service, rather than on the basis of a relationship (or nexus) between service and a skin disorder that first manifested years after service. See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements are competent to report in-service and post-service symptoms such as dizziness, loss of balance, hearing trouble, stumbling and falling, and tinnitus that were later diagnosed as Meniere's disease); see also Jandreau, at 1377 (lay evidence may establish symptoms that later support a diagnosis by a medical professional). For the reasons discussed above and resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for folliculitis and hyperpigmentation is warranted as directly incurred in service. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.303(a), (d). Because the Board is granting service connection on a direct basis, all other theories of entitlement to service connection are rendered moot. ORDER Service connection for folliculitis and hyperpigmentation is granted. ____________________________________________ J. RAGHEB Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs