Wednesday, September 28, 2011

Single Judge Application, Period Without Medical Complaint, Causation, cf. Maxson v. Gober, 230 F.3d (Fed. Cir. 2000)

Excerpt from decision below: "The final problem with the Board's credibility analysis is that it misstates the relevant law. Maxson v. Gober does not, as stated by the Board, stand for the proposition that "the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection." R. at 230. Rather, Maxson held that the Board may consider "evidence of a prolonged period without medical complaint, along with other factors." 230 F.3d at 1333. In other words, Maxson is not about credibility but about causation, once the facts are established. Id.; cf. Buchanan, 451 F.3d at 1337; Kahana v. Shinseki, 24 Vet.App. 428, 438 (2011)." ============================================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-0340 MIGUEL A. SOTO, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before LANCE, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. LANCE, Judge: The appellant, Miguel A. Soto, through counsel, appeals a January6, 2010, Board of Veterans' Appeals (Board) decision that denied his claim for disability compensation for tinea versicolor.1 Record (R.) at 17-32. Initially, the Court notes that it lacks jurisdiction over the claims for disability compensation based on service connection for a liver disability and for an acquiredpsychiatricdisability,to includepost-traumaticstressdisorder, thatwereremandedandthey will not be addressed further. See 38 U.S.C. §§ 7252(a), 7266(a); Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000). The appellant does not present anyargument concerning the separate January 6, 2010, decision of the Board that determined that a January 17, 1986, decision should not be revised or reversed on the grounds of clear and unmistakable error. Accordingly, that claim is deemed abandoned. See Ford v. Gober, 10 Vet.App. 531, 535 (1997). Single- judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that 1 Tinea versicolor is "a common, chronic, usually symptomless disorder, characterized by macular patches of various sizes and shapes, with colors from white in pigmented skin to tan or brown in pale skin. It is caused by Malassezia furfur and is usuallyseen inhot, humid tropical regions." DORLAND'SILLUSTRATEDMEDICALDICTIONARY1930 (32d ed. 2011) (hereinafter "DORLAND'S"). follow, the Court will vacate the January 6, 2010, decision and remand the matter for further proceedings consistent with this decision. I. FACTS The appellant served in the U.S. Armyfrom November 1969 to November 1971. R. at 1176. During service, in May 1971, he was experiencing pain while shaving and was diagnosed with and treated for folliculitis2 and acne vulgaris.3 R. at 1303-04. His June 1971 discharge examination reports that his skin was normal at that time. R. at 1433. The appellant suffers from schizophrenia with an anxiety disorder, which is rated at 50% disabling as a non-service-connected disability, as well as an acquired psychiatric disorder, depression, and "autistic impediments" that were reported at least as early as 1976. R. at 1355. In August 2004, the appellant filed a claim requesting disability compensation based on service connection for a skin condition on his arms and chest. R. at 782. He stated that his skin condition became worse when exposed to sunlight or heat and that he was treated for a skin condition while in the military. R. at 782. The appellant stated that he believed that his current condition was related to his in-service skin problem. R. at 782. An October 1997 treatment record noted that the appellant had a 10-year history of hyperpigmented lesions on his inner arms and back that increased when he was sweating. R. at 1094. The "provisional diagnosis" was listed as "r/o tinea versicolor." R. at 1094. In December 2008, the appellant received a VA compensation and pension examination. R. at 166-67. The examiner stated that the appellant was "a poor historian" and explained that "[h]e could not give a good history." R. at 166. The examiner continued: " However, on questioning about skin condition, he said he has been getting rashes since service on and off. It is intermittent . . . . Especially when he is exposed to moisture, sweating or heat, the rash comes. He was never treated in the servicealthough he complained, and he was never treated before saying it is not service connected[.]" R. at 166. 2 Folliculitis is "inflammation of a follicle or follicles, usually. . . hair follicles[.]" DORLAND'S at 726. 3 Acne vulgaris is "the usual form of acne, a chronic inflammatory disease of the pilosebaceous units; lesions usually occur on the face, chest, and back." DORLAND'S at 18. On January 6, 2010, the Board issued the decision on appeal. R. at 17-32. The Board found that"[t]he servicetreatment recordsarenegativefortineaversicolor, theinitial evidenceoftreatment for this disabilityis dated 26 years after discharge, and competent medical opinion finds that it is less likely than not related to active service." R. at 19. The Board noted the appellant's lay statements that supported a finding of continuity of symptomatology, but concluded that the statements were not credible. R. at 28. Accordingly, it denied the claim. II. ANALYSIS Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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); 38 C.F.R. § 3.303 (2011). Service connection mayalsobe established byshowing continuity ofsymptomatology,whichrequires aclaimantto demonstrate(1)thatacondition was"noted"during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. 38 C.F.R. § 3.303(b) (2011); see Davidson, 581 F.3d at 1316 (2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board); Barr v. Nicholson, 21 Vet.App. 303, 307 (2007); Charles v. Principi, 16 Vet.App. 370, 374 ( 2002) (appellant is competent to testify where symptoms are capable of lay observation, such as ringing in the ears); Layno v. Brown, 6 Vet.App. 465, 469 (1994) (lay testimony is competent to establish the presence of an observable symptomatology and "may provide sufficient support for a claim of service connection"). Under this provision, "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet.App. 488, 496 (1997 ). A finding of service connection is a factual determination bythe Board that the Court reviews for clear error. See 38 U.S.C. § 7261(a)(4); Rose v. West, 11 Vet.App. 169, 171 (1998). A. Evidence of Tinea Versicolor in Service The appellant places great weight on the fact that, in its discussion of tinea versicolor, the Board stated that "[a] review of the service treatment records is negative for evidence of a skin disability, including tinea versicolor." Appellant's Brief (Br.) at 5, citing R. at 27. He argues that this was clearly erroneous, that the December 2008 medical examiner made the same error when he stated "[t]here is no mention of this condition [tinea versicolor] in the service medical record," and that the Board "failed to consider whether the present-daydiagnosed skin condition is related in any manner to the ignored in-service folliculitis and acne vulgaris." Appellant's Br. at 8. In response, the Secretary argues that the appellant "offers no evidence or adequate rationale that his one-time treatments for folliculitis and acne vulgaris were related to his [current] tinea versicolor in anyway." Secretary's Br. at 6. The Court agrees. In this case, although the Board stated on page 11 of its decision that "[ a] review of the service treatment records is negative for evidence of a skin disability, including tinea versicolor," it stated on page 19 of its decision, in the formal "FINDINGS OF FACT" section, that "[t]he service treatment records are negative for tinea versicolor." R. at 19 (emphasis added). The Secretarynotes that the appellant's current disability is confined to his arms, back, and chest, whereas both the in- service folliculitis and acne vulgaris affected his face because theyboth affected his ability to shave. R. at 450, 1303, 1304. The December 2008 medical examiner was even more explicit: he stated that the "service medical record does not mention anything about a skin rash or tinea versicolor." R. at 166. The examiner also expressly stated that he had reviewed the appellant's claims file. R. at 165. Giventhatthemedicalexaminerreviewedtheappellant's servicemedicalrecordsandconcludedthat they did not include evidence of an in-service rash, the Court must conclude that the medical examiner did not consider folliculitis or acne vulgaris to fall into the categoryof skin conditions that are considered "rashes." R. at 165-66. Accordingly, the Court agrees with the Secretary that any error in this regard did not prejudice the appellant's claim. Secretary's Br. at 9-10; see Shinseki v. Sanders, 129 S.Ct. 1696, 1704 (2009); see also 38 U.S.C. § 7261(b)(2) ( requiring the Court to "take due account of the rule of prejudicial error"). B. Credibility of Lay Statements The Court finds merit in the appellant's second argument, that the Board improperly discounted the appellant's lay statements in support of continuity of symptomatology. Appellant's Br. at 12. The Board is required to assess the credibility and probative weight of all relevant evidence. McClain v. Nicholson, 21 Vet.App. 319, 325 (2007). In doing so, the Board mayconsider factors such as facial plausibility, bias, self interest, and consistency with other evidence of record. Caluza, 7 Vet.App. at 511; Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Jandreau, 492 F.3d at 1376 ("The Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted[.]"); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (Board may consider "evidence of a prolonged period without medical complaint, along with other factors" when considering aggravation of a pre-existing condition). The Board may consider the absence of contemporaneous medical evidence when determining the credibility of lay statements, but may not determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan, 451 F.3d at 1331. Personal interest may affect the credibility of the evidence; however, the Board may not disregard a claimant's testimony simply because he or she is an interested party and stands to gain monetary benefits. Cartright v. Derwinski, 2Vet.App.24, 25 (1991). "The Court reviews factual findings" such as credibility"under the 'clearly erroneous' standard such that it will not disturb a Board finding unless, based on the record as a whole, the Court is convinced that the finding is incorrect." Hood v. Shinseki, 23 Vet.App. 295, 299 (2009). In this case, the Board concluded that the appellant's statements about continuity of symptomatology were not credible. R. at 28. In doing so, the Board explained its three reasons for this determination: [1] The December 2008 examiner described the Veteran as a poor historian. [ 2] In addition, his current contentions of symptoms since service are contradicted by the October 1997 treatment record which states that he had onlya 10 year historyof tinea versicolor, which would place its onset nearly 16 years after discharge. This history was presumablyobtained from the Veteran. [3] Furthermore, the Board notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Previous HitMaxsonNext Hit v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet.App. 365 (1992). The Board must concludethat the evidence does not support a finding of continuity of symptomatology[.] R. at 28. Each of these three reasons is problematic. First, the Board merely relied on the October 2008 medical examiner's description of the appellant as a "poor historian" rather than making its own determination about the appellant's ability to recount the history of his medical condition. R. at 28. However, the medical examiner did not explain what she meant bythis statement, nor did she explain which of the facts and conclusions she discussed were affected by her perception of the appellant as a poor historian. R. at 28. Nor did the Board explain how it interpreted the examiner's statement or how its weighing of any of the facts or conclusions in the medical opinion was affected by this description. These ambiguities preclude effective judicial review. Secondly, the Court is troubled by the Board's reliance on the " contradiction" between the appellant's statements and the treatment record of October 1997 that refers to a "10 year history" of tinea versicolor. R. at 1094. This record appears to be merely a referral from an Emergency Room physician to a dermatologist. R. at 1094. The section of the record labeled "Consultation Report" is completely blank and the reference to a "10 year history" is part of the single sentence on the page, with no further elaboration. R. at 1094. The Court is also troubled by the Board's statement that "[t]his history was presumably obtained from the Veteran." R. at 28. Given that the Board explicitly admitted that it is unsure whether the report of a 10-year history is even a statement by the appellant, it is not clear that the Board would reach the same conclusion about the appellant's credibility based solely on the October 1997 notation. The final problem with the Board's credibility analysis is that it misstates the relevant law. Maxson v. Gober does not, as stated by the Board, stand for the proposition that "the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection." R. at 230. Rather, Maxson held that the Board may consider "evidence of a prolonged period without medical complaint, along with other factors." 230 F.3d at 1333. In other words, Maxson is not about credibility but about causation, once the facts are established. Id.; cf. Buchanan, 451 F.3d at 1337; Kahana v. Shinseki, 24 Vet.App. 428, 438 (2011). Accordingly, the Court is not convinced that the other errors in the credibility analysis are harmless, and the Court will remand the claim for the Board to provide an accurate analysis. C. Competence of Lay Statements Finally, the Court notes that the Board erred in its analysis of the appellant's competence to opine on the etiology of his tinea versicolor. R. at 28. When considering lay evidence supporting a claim for disability compensation, the Board must consider, on a case by case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. Davidson, 581 F.3d at 1316 (reiterating that "'[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.'") (quoting Jandreau, 492 F.3d at 1377). In Barr v. Nicholson, this Court held that the presence of a simple, observable condition, such as varicose veins, is not a determination that is "medical in nature" and is therefore capable of lay observation for purpose of establishing service connection. 21 Vet.App. at308-09;seeKahana v.Shinseki,24Vet.App.428,438(2011)(Lance,J.,concurring)(" Simplyput, any given medical issue is either simple enough to be within the realm of common knowledge for lay claimants and adjudicators or complex enough to require an expert opinion."). In this case, the Board concluded that the appellant is not competent to opine on the issue of etiology. The Board explained that it had "considered the Veteran's sincere belief that his tinea versicolor was first incurred in service. However, the Veteran is not a physician, and he is not qualified to express a medical opinion as to such a relationship. Espiritu v Derwinski, 2 Vet.App. 492, 495 (1992)." R. at 28. The Board's analysis was flawed. The disability in question is tinea versicolor, a skin condition "characterized by macular patches of various sizes and shapes, with colors from white in pigmented skin to tan or brown in pale skin."4 Although the appellant may not be competent to provide a medical determination about a potential causal connection between tinea versicolor and folliculitis or acne vulgaris, it is unclear to the Court why he would not be competent to report whether or not he has observed simple visible symptoms, and how tinea versicolor differs from the varicose veins that were subject to competent lay observation in Barr. On remand, rather than categoricallydismissingtheappellant's statementsasnotcompetentbecausetheappellant is not a physician, the Board must make a case-specific determination as to whether the appellant's tinea versicolor is the type of observable medical condition that a lay person is competent to describe, as discussed in Davidson, Jandreau, and Barr. On remand, the appellant is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument 4 DORLAND'S at 1930. submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by Board or Court). III. CONCLUSION After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's January 6, 2010, decision is VACATED as to the tinea versicolor claim and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: September 23, 2011 Copies to: Perry A. Pirsch, Esq. VA General Counsel (027)

Combat Brain Trauma Increasing, 9,000 Pulled from Duty

Full article at: More troops' mild brain trauma diagnosed By Gregg Zoroya, USA TODAY By Garrett Hubbard, USA TODAY "Nearly 1,400 U.S. servicemembers were found to have concussions or mild brain injuries in Afghanistan and Iraq this year under a program that forces servicemembers to take a break from combat when exposed to a blast or other jarring incident.The military has pulled about 9,000 servicemembers from combat for short periods of time to look for signs of brain injury after blasts that caused no obvious wounds, according to data given to USA TODAY."