Citation Nr: 21071747 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 14-12 156 DATE: December 1, 2021 ORDER Service connection for lumps on the right inner thigh, to include as secondary to herbicide exposure, is granted. FINDING OF FACT The evidence is in equipoise on whether the Veteran's lumps on the right inner thigh are etiologically related to service, to include as secondary to herbicide exposure. CONCLUSION OF LAW The criteria for service connection for lumps on the right inner thigh, to include as secondary to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1964 to August 1968, including service in Vietnam. In December 2017, the Veteran and his spouse testified at a videoconference hearing before the undersigned, and a transcript of that hearing is of record. The Board remanded the issue in May 2020 for further development, including obtaining a VA addendum medical opinion. The Veteran subsequently was provided a VA addendum medical opinion in August 2021, and the opinion is in the claims file. The Board therefore finds there has been substantial compliance with the remand directives on the issue of service connection for lumps on the right inner thigh. See D'Aries v. Peake, 22Vet. App.97, 105 (2008); see also Stegall v. West, 11Vet. App.268 (1998). Service connection for lumps on the right inner thigh, to include as secondary to herbicide exposure. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). 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 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 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 standard of proof to be applied in decisions on claims for veterans' benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2018). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). After careful review, the Board finds that the evidence is in equipoise on whether service connection for lumps on the right inner thigh is warranted. The Veteran contends that that he has lumps that started on his right inner thigh and have spread to other parts of his body, which are a direct result of his exposure to herbicides in Vietnam. A December 2015 VA pathology report revealed a diagnosis of seborrheic keratosis, right scrotal inner thigh, which the Veteran asserted he had ever since returning from Vietnam. A June 2020 VA herbicide exposure verification memorandum indicated that exposure to herbicides is conceded. Thus, the question becomes whether the Veteran has a current disability related to service. On this question there are probative opinions in favor of and against the claim. The evidence for the claim includes an August 2021 VA medical examination and opinion. The August 2021 VA examiner opined that the Veteran's lumps on the right inner thigh were related to service, to include as due to herbicide exposure in Vietnam. The VA examiner indicated that they reviewed the Veteran's claims file as well as medical literature in providing their opinion. Additionally, the VA examiner noted that the Veteran's skin condition was not present prior to active service. The VA examiner also noted that they considered the Veteran's lay statements that he noticed the lumps on his inner right thigh ever since returning from Vietnam. The evidence against the claim includes a September 2021 VA addendum medical opinion. The opinion was issued in response to the August 2021 VA medical opinion and examination for the Veteran's skin condition. The September 2021 VA addendum opinion, provided by a nurse practitioner, indicated that the rationale for the August 2021 VA medical opinion failed to describe how the Veteran's skin condition was related to service. The September 2021 VA nurse practitioner opined that the Veteran's skin condition was less likely than not related to service. The rationale provided stated that there were no skin complaints on the Veteran's discharge examination and also no evidence of chronicity of care for the Veteran's skin conditions. Further the September 2021 VA nurse practitioner stated that, "a thorough review of medical literature failed to demonstrate a causal relationship between seborrheic keratosis or skin tags and an exposure to herbicides. The current diagnoses of seborrheic keratosis and skin tags are several years 40-50 years post service therefore intercurrent disease cannot be ruled out as an etiology." See September 2021 VA addendum medical opinion. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. First, the Board notes that a September 2021 VA addendum medical opinion reported that the Veteran's lumps on the inner right thigh were not related to service. The Board has considered the Veteran's September 2021 VA addendum medical opinion but affords the opinion low probative value. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (noting that the credibility and weight to be attached to medical opinions are within the province of the Board). The September 2021 VA nurse practitioner stated that there is no evidence of chronicity of care for the Veteran's skin conditions. The Board notes that the mere fact that medical records do not establish chronicity is not, in and of itself, a sufficient basis on which to rest a medical conclusion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009), quoting 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."). Additionally, the September 2021 VA nurse practitioner did not consider or discuss the Veteran's lay statements that his lumps on his right inner thigh have been there ever since active service. See Dalton v. Nicholson, 21 Vet. App.23, 39-40 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). As such, the September 2021 VA addendum medical opinion is given low probative value. Next, the Board finds the August 2021 VA medical opinion to be both competent and credible, and as such, entitled to probative weight. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The opinion was rendered after reviewing the entire VA claims file, including lay statements from the Veteran and citing to medical literature. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the examiner's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). However, the opining VA examiner mistakenly referenced service in Southwest Asia, instead of Vietnam. In sum, the Board finds that the evidence is at least in equipoise as to whether the Veteran's lumps on his inner right thigh are related to his active service. Under the "benefit-of-the- doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). In this case, the Board finds that there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter." Notably, further development could be undertaken given the August 2021 opinion had what appears to be a cut and paste error referencing Southwest Asia; however, it also did provide a rationale for the opinion in and its discussion of the medical history correctly noted service in Vietnam. The opinion relied more on the presence of symptoms during service and continuity. Additionally, the Veteran has consistently held that the lumps on his inner right thigh began after he returned from Vietnam. See the April 2012 notice of disagreement, March 2013 notice of disagreement, and May 2016 statement in support of claim (noting the Veteran asserted he has lumps that started on his right inner thigh ever since returning from Vietnam). He credibly and competently testified to this fact during his December 2017 Board hearing. The Board notes that the Veteran also testified at the Board hearing that the lumps have spread to other parts of his skin, including his neck. As such, this is a situation where the benefit of the doubt rule applies. Ashley, 6 Vet. App. at 59; 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for lumps on his inner right thigh, to include as secondary to herbicide exposure, is warranted. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Dourmashkin The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.