Veteranclaims’s Blog

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).”
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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)

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