Citation Nr: 21028045 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-18 581A DATE: May 10, 2021 ORDER Service connection for a skin disorder, diagnosed as dermatitis, is granted. REMANDED Entitlement to service connection for a bilateral upper extremity disorder, to include arthritis and paresthesia, is remanded. FINDING OF FACT The Veteran's diagnosed dermatitis had an in-service onset. CONCLUSION OF LAW The criteria for service connection for a skin disorder, diagnosed as dermatitis, are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1968 to July 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2013 by the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan. They were previously before the Board in January 2019, at which time they were remanded to allow for further development. The Veteran seeks service connection for a skin rash which he contends first developed in service. 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. § 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. See Jandreau at 1376-77. The record shows that the Veteran has a current skin disability. At an October 2019 VA examination, a diagnosis of dermatitis was made. The Board also finds that the evidence is in relative equipoise on the question of whether the Veteran's dermatitis began in service; that is, whether dermatitis was directly "incurred in" service. Evidence weighing in favor of this finding includes the Veteran's statements that he first developed a rash in service, and it has recurred since then. The Veteran's wife reported that she met the Veteran shortly after he returned from service, and that she observed rash outbreaks since then. The Veteran and spouse are competent to report skin disorder symptoms that the Veteran experiences 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 record shows no evidence of diagnosis, complaints, or treatment for a skin disorder during service. However, the absence of contemporaneous medical evidence is a 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, 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"). Further, VA treatment records from September 2012 show that the Veteran has consistently contended that his rash had its onset in service. The Veteran has also provided graphic photos of a rash that covers his forearms when present. The evidence weighing against a finding of in-service onset of dermatitis includes a July 1972 service separation examination report which shows a normal clinical evaluation of the skin. However, when resolving reasonable doubt in the Veteran's favor on this question, the Board finds that symptoms of the current dermatitis began during service, and thus, dermatitis was directly incurred in service. 38 C.F.R. § 3.303 (a), (d). The Board notes that the October 2019 VA examiner provided a negative nexus opinion with respect to the relationship between a skin disorder and active service; however, because the weight of the competent and credible evidence shows that dermatitis began during service, and so was incurred in service, a medical nexus opinion is not necessary to establish service connection. The Board does not need to reach the weight assignable to this opinion because it is granting service connection on a direct basis, due to the in-service incurrence or onset of dermatitis symptoms as reported by the Veteran, rather than on a relationship (or nexus) between the current dermatitis and active 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 all reasonable doubt in favor of the Veteran, the Board finds that service connection for dermatitis is warranted as directly incurred in service. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(a), (d); Gilbert, supra. Because the Board is granting service connection on a direct basis, all other theories of entitlement to service connection are rendered moot. The claim is granted. REASONS FOR REMAND The Veteran asserts that he developed a painful disorder of the bilateral upper extremities, due to service. At the outset, the Board notes that although the claim was initially characterized as one for service connection for peripheral neuropathy, subsequent testing showed the Veteran instead has been diagnosed with paresthesia and arthritis. Thus, it has recharacterized the claim as one for a disorder of the bilateral upper extremities, to include arthritis and paresthesia. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that VA must construe a claim for service connection to include any disability that may reasonably be encompassed by the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of the claim). In October 2019, the Veteran underwent a VA nerves examination. At that time, the examiner asserted that the Veteran did not have a true diagnosis of peripheral neuropathy; instead, paresthesia was diagnosed. The examiner noted that the cause of the Veteran's paresthesia had never been determined, but that literature showed it is often a symptom of an underlying neurological disease or traumatic nerve damage. She indicated that the disorder could be caused by stroke, transient ischemic attack (TIA), multiple sclerosis, traverse myelitis and encephalitis, carpal tunnel, diabetes and sciatica. The examiner then determined that the Veteran had arthritis of the shoulders and hands, and that this "could cause" symptoms in the upper extremities. She also noted that the record showed the Veteran had a TIA in 2007. However, as the examiner was asked to address whether the Veteran had peripheral neuropathy that was related to service, and she determined he did not have a diagnosis of the condition, she declined to address whether the conditions she did diagnose, arthritis and paresthesia, had a connection to the Veteran's military service. For this reason, the Board finds that the October 2019 VA examination report is inadequate for the purpose of deciding the Veteran's claim. See Barr, supra (noting that once VA provides an examination, VA has a duty to ensure that the examination is adequate for evaluation purposes). Upon remand, the Veteran should be afforded a new VA examination to determine the nature and etiology of all diagnosed disabilities of the bilateral upper extremities. Clemons, supra. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the etiology of all disorder(s) of the bilateral upper extremities. The record should be made available to the examiner, and the examiner should consider the Veteran's lay statements regarding the onset of his disability and continuity of such symptomatology since service. After reviewing the claims file and examining the Veteran, the examiner is asked to identify all diagnosed disorders of the bilateral upper extremities, including but not limited to arthritis and paresthesia. (Continued on the next page) Then, with relation to each, the examiner should offer an opinion as to whether it is at least as likely as not (that is, a 50 percent or higher degree of probability) that the disorder had its onset in, or is otherwise related, to his military service. A detailed and supported rationale for all offered opinions should be provided. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, Counsel 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.