Veteranclaims’s Blog

June 19, 2018

Single Judge Application; Dalton v. Nicholson, 21 Vet.App. 23, 41 (2007); Board acts “prematurely” when it decides a case without assessing the credibility of the claimant’s lay statements; Arneson v. Shinseki, 24 Vet.App. 379, 389 (2011); prejudice when error “could have altered” the Board’s determinations;

Excerpt from decision below:

“The appellant argues, among other things, that the Board failed to address the appellant’s lay statements regarding chronic skin symptoms since his service and his alleged treatment for jungle rot during service. Appellant’s Br. at 14-17. The appellant asserts that without such a discussion, the adequacy of the VA medical opinions cannot be measured and that the appellant was prejudiced by this error. Id. at 17.

The appellant’s argument is persuasive. Although the Board determined that the appellant was not competent to relate his current skin condition to his in-service herbicide exposure to establish service connection, the Board did not discuss the competency or credibility of the appellant’s lay statements concerning his chronic skin symptoms since service or his reported treatment for jungle rot during service, which constitute potentially favorable material evidence to establish direct service connection. See Dalton v. Nicholson, 21 Vet.App. 23, 41 (2007) (holding
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that, when lay evidence is submitted, a credibility determination is “necessary” and the Board acts “prematurely” when it decides a case without assessing the credibility of the claimant’s lay statements); see also Caluza, 7 Vet.App. at 506 (the Board is required to account for all materially favorable evidence and provide the reasons for its rejection); 38 C.F.R. § 3.303(d) (2017) (“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.”). Because the Board failed to address the competency or credibility of the appellant’s lay statements regarding his chronic skin symptoms and jungle rot during service, the Court is prevented from understanding the precise basis for the Board’s decision. See 38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527. Therefore, the Board’s reasons or bases are inadequate.”

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“The Secretary, however, mischaracterized the Board’s analysis. As discussed above, the Board determined that the appellant was not competent to relate his skin condition to herbicide exposure, but did not provide an adequate statement of reasons or bases concerning the probative value or credibility of the appellant’s reports of chronic skin symptoms and jungle rot during service. See Davidson, 581 F.3d at 1316 (explaining that medical or lay evidence may be sufficient to establish a nexus between a current disability and service). Without discussion of the appellant’s lay statements, which constitute potentially favorable evidence, the Court will not
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speculate as to what impact the evidence would have on the Board’s assessment of the medical evidence if the Board on remand were to find the appellant credible. Arneson v. Shinseki, 24 Vet.App. 379, 389 (2011) (finding prejudice when error “could have altered” the Board’s determinations).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-1718
HENRY L. HICKS, APPELLANT,
V.
PETER O’ROURKE,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, through counsel, appeals a February 28, 2017, Board
of Veterans’ Appeals (Board) decision, in which the Board denied service connection for a skin rash (claimed as chloracne), to include tinea cruris, and tinea pedis, due to herbicide exposure.
Amended Record of Proceedings (R.) at 2-17.1 The appellant asserts that the Board erred when it provided an inadequate statement of reasons or bases for denying direct service connection. Appellant’s Brief (Br.) at 13. The Court agrees and will vacate the February 28, 2017, Board decision, and remand the matter for further proceedings.

I. BACKGROUND
The appellant served in the U.S. Army from January 1969 to February 1971. R. at 442.
Service medical records show that, in November 1969, the appellant was treated for cellulitis of
the left arm. R. at 518. Specifically, he underwent an incision and drainage, local anesthesia, and
Xylocaine injections. Id.
1 The Secretary filed the Record of Proceedings on April 18, 2018. On April 30, 2018, the Secretary provided
an Amended Record of Proceedings. The Court will refer to the Amended Record of Proceedings as “R.” throughout
this decision.
2
A July 2006 application for compensation and pension shows that the appellant reported
that his skin rash began in 1970, during military service. R. at 1207. In February 2007, the
appellant stated that his service records should report that he had had “jungle rot” and was given
17 shots for sores. R. at 1151.
An October 2012 VA examination report shows that the appellant stated that, in 1969, he
was diagnosed with “jungle rot” all over his feet, legs, and groin; was hospitalized; and had
received injections. R. at 840-49. He still complained of a rash in the inguinal region. R. at 842.
A January 2015 VA examination report shows that the appellant reported having had a skin
condition for many years. R. at 386.
A June 2015 VA examiner opined that the appellant’s skin condition was less likely than
not incurred in or caused by the claimed in-service injury, event, or illness. R. at 318-19. The
examiner stated that the appellant’s service records did not document chronic treatment, tinea
cruris, or tinea pedis. Id. at 318. The examiner also stated that the appellant was treated for an
abscess and cellulitis, which were diagnoses distinct and separate from his current skin condition,
and involved distinct and separate areas of the body. Id. at 318-19.
A November 2015 VA examiner opined that the appellant’s condition was less likely than
not incurred in or caused by the claimed in-service injury, event, or illness. R. at 293. The
examiner stated that the appellant’s tinea cruris and tinea pedis were not related to service or Agent
Orange exposure. R. at 294. The examiner stated that the appellant’s service records did not
document chronic treatment for tinea cruris or tinea pedis, and that tinea is a fungus infection but
Agent Orange does not cause fungus infections. Id. The examiner then noted that the appellant
had an unrelated “abscess/cellulitis” caused by bacteria, which was not a fungus. Id. The examiner
noted that the appellant’s lay statement had been considered. Id.
The February 28, 2017, Board decision denied service connection for a skin rash (claimed
as chloracne), to include tinea cruris, tinea corporis, and tinea pedis due to herbicide exposure. R.
at 2-17. This appeal followed.

II. ANALYSIS
Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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.
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See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Caluza v. Brown, 7 Vet.App. 498
(1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
As with any finding on a material issue of fact and law presented on the record, the Board must support its service-connection determination with an adequate statement of reasons or bases that enables the claimant to understand the precise basis for that determination and facilitates review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995).
To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza, 7 Vet.App. at 506.
The appellant argues, among other things, that the Board failed to address the appellant’s
lay statements regarding chronic skin symptoms since his service and his alleged treatment for jungle rot during service. Appellant’s Br. at 14-17. The appellant asserts that without such a discussion, the adequacy of the VA medical opinions cannot be measured and that the appellant was prejudiced by this error. Id. at 17.
Here, the Board first noted the appellant’s statement that “since service he continues to have a rash in the groin region.” R. at 9. In its analysis, the Board discussed the competency of the appellant’s statements relating his current skin condition to service and stated that “relating a skin condition to exposure to an herbicide agent is not equivalent to relating a broken bone to a concurrent injury of the same body part” and found that the appellant’s lay statements were not competent evidence of a relationship between his skin condition and service. R. at 13. The Board determined that the clinical evidence was more persuasive than the appellant’s statements. Id.
Specifically, the Board stated that the November 2015 VA opinion was the most probative because it discussed why “the [appellant’s] current skin disability is not etiologically related to herbicide exposure, specifically exposure to Agent Orange.” R. at 14. The Board found that the appellant’s skin disability was not related to “his in-service exposure to Agent Orange.” Id.
The appellant’s argument is persuasive. Although the Board determined that the appellant was not competent to relate his current skin condition to his in-service herbicide exposure to establish service connection, the Board did not discuss the competency or credibility of the appellant’s lay statements concerning his chronic skin symptoms since service or his reported treatment for jungle rot during service, which constitute potentially favorable material evidence to establish direct service connection. See Dalton v. Nicholson, 21 Vet.App. 23, 41 (2007) (holding
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that, when lay evidence is submitted, a credibility determination is “necessary” and the Board acts “prematurely” when it decides a case without assessing the credibility of the claimant’s lay statements); see also Caluza, 7 Vet.App. at 506 (the Board is required to account for all materially favorable evidence and provide the reasons for its rejection); 38 C.F.R. § 3.303(d) (2017) (“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.”). Because the Board failed to address the competency or credibility of the appellant’s lay statements regarding his chronic skin symptoms and jungle rot during service, the Court is prevented from understanding the precise basis for the Board’s decision. See 38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527. Therefore, the Board’s reasons or bases are inadequate.
The Secretary argues that, at worst, the Board committed harmless error. Secretary’s Br.
at 10; see Shinseki v. Sanders, 556 U.S. 396, 406 (2009) (noting that the statute requiring this Court to “take due account of prejudicial error [ ] requires the Veterans Court to apply the same kind of ‘harmless error’ rule that courts ordinarily apply in civil cases”). The Secretary states that the June and November 2015 VA medical opinions adequately discussed direct service connection “unrelated to a theory of Agent Orange exposure” and that there is no “competent evidence” to refute them. Secretary’s Br. at 10. Yet, without an adequate statement of reasons or bases by the Board concerning the appellant’s reports of chronic skin symptoms and jungle rot during service,
which constitute potentially favorable evidence, the Court cannot ascertain the adequacy of the VA medical opinions. See 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); Allday, 7 Vet.App. at 527.
The Secretary asserts that the Board concluded that the appellant was not competent to
opine whether his skin condition was related to service or to herbicide exposure. Secretary’s Br.
at 10, citing R. at 13. The Secretary, however, mischaracterized the Board’s analysis. As discussed above, the Board determined that the appellant was not competent to relate his skin condition to herbicide exposure, but did not provide an adequate statement of reasons or bases concerning the probative value or credibility of the appellant’s reports of chronic skin symptoms and jungle rot during service. See Davidson, 581 F.3d at 1316 (explaining that medical or lay evidence may be sufficient to establish a nexus between a current disability and service). Without discussion of the appellant’s lay statements, which constitute potentially favorable evidence, the Court will not
5
speculate as to what impact the evidence would have on the Board’s assessment of the medical evidence if the Board on remand were to find the appellant credible. Arneson v. Shinseki, 24 Vet.App. 379, 389 (2011) (finding prejudice when error “could have altered” the Board’s determinations).
The Secretary also argues that credibility is not at issue because the Board had conceded
the appellant’s in-service injury of cellulitis and that comparing the appellant’s allegations with service records “seems to indicate” that cellulitis and jungle rot are the same condition. Secretary’s Br. at 6, 11. The appellant counters the Secretary’s argument, stating that there was no evidence that the Board considered the in-service cellulitis and jungle rot the same condition. Appellant’s Reply Br. at 9. Because the Board’s decision is silent for the appellant’s report of jungle rot, the Secretary’s assertion that cellulitis and jungle rot are the same condition is a post hoc rationalization that may not be accepted by the Court. Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigation positions’ are not entitled to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action, advanced for the first time in the reviewing court.”).
Accordingly, the Court holds that the Board provided inadequate reasons or bases for
denying service connection for a skin rash and remand is warranted for the Board to address the appellant’s lay statements. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate where the Board has, inter alia, failed to provide an adequate statement of reasons or bases). Given this disposition, the Court will not, at this time, address the other arguments raised by the appellant.
See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order). On remand, the appellant is free to submit additional evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534
(2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court
reminds the Board that it must proceed expeditiously, in accordance with 38 U.S.C. § 7112.
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, the Board’s February 28,
2017, decision is VACATED and the matter is REMANDED for further proceedings consistent
with this decision.
DATED: June 18, 2018
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Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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