Citation Nr: 1757062	
Decision Date: 12/11/17    Archive Date: 12/20/17

DOCKET NO.  16-41 854	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to an evaluation higher than 0 percent for hearing loss.

2.  Entitlement to service connection for a pulmonary disorder, including chronic obstructive pulmonary disease (COPD)/emphysema.

3.  Entitlement to service connection for a skin disorder.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Buck Denton, Associate Counsel



INTRODUCTION

The Veteran had active duty service periods in the Marine Corps from August 1956 to October 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to a higher rating for hearing loss 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's skin disorder, diagnosed as benign hyperkeratotic lesions, is etiologically related to his military service.

2.  The Veteran's pulmonary disorder, diagnosed as COPD and emphysema, had its clinical onset during active service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for benign hyperkeratotic lesions have been met.  38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).



2.  The criteria for service connection for COPD and emphysema have been met.  38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Service Connection

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; 38 C.F.R. § 3.303 (a).  Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b).  Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d) (2016).

In relevant part, 38 U.S.C.A. 1154 (a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").  "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).


II.  Skin Disorder

The Veteran seeks service connection for a skin disorder.  Specifically, he asserts that he was exposed to Agent Orange while in service during the Vietnam Era, and his in-service skin issues and current skin issues are from his in-service exposure to herbicides.  In light of the Veteran's noted and conceded service in the Republic of Vietnam, he is presumed to have been exposed to herbicides during his period of service.  See 38 C.F.R. § 3.307(a)(6)(iii) (2016).  However, the Board notes that the Veteran does not have a skin disease that is one of the presumptive diseases associated with herbicide exposure.  See 38 C.F.R. § 3.309(e) (2017).  It was noted 


in a December 2012 VA examination that he had benign hyperkeratotic lesions.  Therefore, service connection based on this presumption is not warranted.  Nonetheless, the Veteran is not precluded from otherwise proving entitlement to service connection on a direct basis based on his presumed herbicide agent exposure.  See Combee v. Brown, 5 Vet. App. 248 (1993).

Here, the medical evidence of record, which includes a December 2012 VA medical examination, confirms a current diagnosis of benign hyperkeratotic lesions.

Historically, the Veteran's August 1971 STRs note a six month history of recurrent papules and lesions.  The provisional diagnosis was pustular dermatosis.  In a July 2013 statement in support of his appeal, the Veteran noted that the medical examiners could not diagnose his skin disorder with certainty at that time.  His other skin disorder diagnoses include benign skin lesions in January 2006 and an unspecified disorder of the skin and subcutaneous from July 2001.  In his July 2013 statement, the Veteran noted that he had received a diagnosis of "undiagnosed skin disease" in the early 1990s.  

On VA examination in December 2012, the examiner concluded that the Veteran's  benign hyperkeratotic lesions were less likely than not related to service.  The examiner explained that the Veteran's benign hyperkeratotic lesions did not fit the dermatology description in his STRs.  

Despite the foregoing negative opinion, after weighing the probative value of the competent evidence, and after affording the Veteran the benefit of the doubt, the Board finds that the Veteran's skin disability is etiologically related to his military service.  While the December 2012 VA examiner's medical opinion is competent and probative, it is counterbalanced by the competent and credible evidence showing an onset of a chronic skin disorder in service, as well as the Veteran's competent lay statements of continuity ever since.  In this regard, the competent and credible evidence shows that the Veteran sought treatment for a rash of unknown etiology in August 1971 while in the military, and the rash has recurred since service.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  While symptoms, not treatment, are the essence of any evidence of continuity of symptomatology, the medical evidence also supports the Veteran's reports that various skin symptoms have been present over the years.  See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  Thus, after affording him the benefit of the doubt, the Veteran's skin disability is etiologically related to his military service.

When a veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The benefit of the doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits."  Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54).

Accordingly, after applying the benefit-of-the-doubt rule, the evidence is at least in equipoise in showing that service connection for benign hyperkeratotic lesions is warranted. Thus, the claim is granted.  See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.


III.  Pulmonary Disorder

The Veteran is currently diagnosed as having COPD and emphysema.  His service treatment records reveal x-ray findings of granulomatous disease.  In October 1976, an in-service examiner noted a prolonged respiratory phase of breathing, indicating early emphysematic changes.  In June 2016, a VA examiner concluded that the Veteran's early emphysematic changes were present during service and caused by or a result of service.  As such, the competent and credible evidence of record supports a finding that the Veteran's current pulmonary disorder had its clinical onset during active service.  While there is medical evidence suggesting that the in-service emphysematic changes were caused by the Veteran's smoking/use of tobacco products, the provisions of 38 C.F.R. § 3.300(a) do not prohibit service connection if the disability became manifest during service, as is 


the case here.  See 38 C.F.R. § 3.300(b) (2017).  Accordingly, service connection for COPD and emphysema is warranted.


ORDER

Service connection for benign hyperkeratotic lesions is granted.

Service connection for COPD and emphysema is granted.


REMAND

The Board sincerely regrets the additional delay that will result from this remand, but it is necessary to ensure there is a complete record.

In the October 2017 Appellate Brief, the Veteran indicated that his service-connected hearing loss had worsened since his most recent VA examination in November 2012.  Therefore, on remand, he should be scheduled for a VA examination to reassess the current severity of bilateral hearing loss.

As the case is being remanded, all relevant ongoing VA medical records should be requested on remand.  VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim.  38 U.S.C.A. § 5103A(c) (West 2014); Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Make arrangements to obtain the Veteran's updated VA treatment records.  

2.  Then, schedule the Veteran for a VA audiology examination to assess the current severity of service-connected hearing loss.  The examiner must review the claims file and should note that review in the report.  The examiner should provide audiometric findings, and also word recognition scores using the Maryland CNC test.  

3.  Finally, readjudicate the claim on appeal.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response.  Then, return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter or matters 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).



______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs