Citation Nr: 0018548 Decision Date: 07/14/00 Archive Date: 07/14/00 DOCKET NO. 99-06 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a skin disorder, to include chloracne and suppurativa hidradenitis, claimed as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Howard M. Scott, Associate Counsel INTRODUCTION The veteran had active service from December 1966 to November 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Louis, Missouri, which denied the veteran's claim on appeal. The veteran appealed that decision to the BVA and the case was referred to the Board for appellate review. FINDINGS OF FACT 1. Chloracne was not demonstrated during the veteran's active duty service or to a compensable degree within one year of the veteran's exposure to herbicides. 2. There is no medical evidence of a nexus between chloracne and the veteran's active military service. 3. Hidradenitis suppurativa is not shown in service and is not a disorder entitled to the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 (1999). 4. There is no medical evidence of a nexus between hidradenitis suppurativa and the veteran's active military service. CONCLUSION OF LAW The claim of entitlement to service connection for a skin disorder, to include chloracne and hidradenitis suppurativa, claimed as secondary to Agent Orange, is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that his skin disorder was incurred as a result of exposure to herbicides in service. In his January 1999 notice of disagreement, the veteran specified that he was claiming service connection for chloracne but not for hidradenitis suppurativa. At his June 1999 personal hearing, the veteran initially reiterated that his claim was for service connection for chloracne. The Board notes, however, that in discussing his symptoms, both past and present, he and his wife testified almost exclusively about the symptoms of hidradenitis suppurativa. In addition, in his initial claim for service connection, the veteran complained of weeping boils that would not heal, with pain and a foul odor. The Board will therefore address both disorders. The veteran's service medical records noted no complaint of, or treatment for, chloracne. He reported a history of boils during his entrance examination, but none were noted during the examination. In October 1967, he was treated for a boil in the groin. His service separation examination report noted no abnormalities of the skin. Private treatment records from April and May 1992 noted that the veteran had hidradenitis suppurativa in the left axilla and groin, with drainage from several areas. VA treatment records from September and October 1997 reported a history of hidradenitis suppurativa in the axilla and groin. In January 1998, the veteran reported a flare-up of the disorder. The attending physician reported that the veteran had connecting cystic tracts in the left axilla under the left breast and right groin. The assessment was hidradenitis suppurativa. Entries dated in March and June 1999 noted that the veteran had scars, cysts, draining of the sinus tracts, and comedones of the face, cheeks, post- auricular neck and back, axillae and groin. The assessment was chloracne and hidradenitis. At his June 1999 personal hearing, the veteran testified that he did not recall having any skin problems while in Vietnam, but that, within the first year of his separation from service, he began to develop boils in the groin area and under the arms. He said that he did not seek medical treatment for his disorder for a couple of years, saying that "I'm the type I've got to be in pretty bad shape before I go to the doctor." He said that the first doctor he saw merely lanced the boils but did not say what the disorder was. He indicated that he would attempt to obtain these treatment records. The veteran's wife testified that the veteran did not write home about any skin problems while in service, but he did write and tell her about being sprayed with Agent Orange. She said the letters had since been lost in a fire. She further testified that when the veteran came home after separation, she recalled him suffering from painful, malodorous cysts that drained constantly. Service connection may be established for disability resulting from personal injury suffered or disease incurred or aggravated while on active duty. 38 U.S.C.A. § 1110 (West 1991). 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) (1999). The Board notes that the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), which provides for presumptive service connection, does not preclude establishing service connection on principles of direct causation. See Combee v. Brown, 34 F.3d 1039, 1045 (Fed. Cir. 1994). Therefore, the Board will consider the appellant's claim on both a presumptive basis and a non- presumptive basis. Service connection is presumed for number of diseases arising in veterans who have been determined to have been exposed to Agent Orange. This list of diseases includes chloracne and acneform diseases consistent with chloracne, but does not include hidradenitis suppurativa. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307; 3.309(e). The inclusion of certain diseases, as opposed to others, within this list reflects a determination by the Secretary of Veterans Affairs (Secretary), based on sound medical evidence, that there exits a positive association between (A) the occurrence of those diseases in humans and (B) the exposure of humans to an herbicide agent. 38 U.S.C.A. § 1116(b)(1); 61 Fed. Reg. 41368-41371 (1996). Moreover, the Secretary, under the authority granted by the Agent Orange Act of 1991, specifically has indicated that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for conditions for which the Secretary has not specifically determined a presumption of service connection is warranted. 61 Fed. Reg. 41442-41449 (1996). As regards chloracne or acneform diseases consistent with chloracne, the Board notes that under 38 C.F.R. § 3.307(a)(6)(ii), the presumption of service connection attaches only when the disorder becomes manifest to a degree of ten percent or more within one year of the last exposure to an herbicide, such as Agent Orange. The Board notes, however, that there is no medical evidence of chloracne manifested to a degree of ten percent or more within the applicable presumptive period. The veteran indicated that he did not have any symptoms in service, and his separation examination report noted no abnormality of the skin. The earliest diagnosis of the disorder is not until March 1999, more than 30 years after separation. As the disorder was not manifested to a degree of 10 percent or more within the applicable presumptive period, a grant service connection for chloracne, on a presumptive basis, lacks entitlement under the law. In view of the fact that service connection for chloracne may not be granted on a presumptive basis, and that hidradenitis suppurativa is not included among the presumptive diseases for Agent Orange exposure under 38 C.F.R. §§ 3.307, 3.309(e), the Board must next determine whether service connection for both disorders is warranted on a non-presumptive basis. Combee, 34 F.3d 1039, 1045. At this point, before reaching the merits of the veteran's claim, the threshold question which must be answered in this case is whether the veteran has presented a well grounded claim for service connection. A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. In this regard, the veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If the evidence presented by the veteran fails to meet this threshold level of sufficiency, no further legal analysis need be made as to the merits of the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). In order for a claim to be well grounded, there must be competent evidence of current disability (established by medical diagnosis); evidence of incurrence or aggravation of a disease or injury in service (established by medical, or in some cases lay, evidence); and competent evidence of a nexus between the in-service injury or disease and the current disability (established by medical evidence). See generally Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997) cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under he court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded or reopened on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). As regards hidradenitis suppurativa, the Board notes that there is no competent evidence of a chronic condition in service, indeed, the veteran testified that he did not have any symptoms in service. The service medical records noted that the veteran was treated on just one occasion for a boil in the groin, and this was not diagnosed as hidradenitis suppurativa. The veteran's service separation examination was normal. Thereafter, treatment is not documented in the record until the 1990's, many years after service separation. This is too remote in time to indicate that a chronic condition was manifested in service. The veteran and his wife have testified that the veteran had recurring boils after service, and as laypersons, they are competent to describe such symptomatology. There is no competent medical evidence, however, relating hidradenitis suppurativa with the veteran's post-service symptomatology, and no competent evidence relating his post-service symptomatology to service. Thus, this claim is not well grounded. As regards chloracne, there is no evidence of the disorder in service, the disorder was not diagnosed until the 1990's, many years after service separation, and there is no competent evidence of a nexus between his currently diagnosed disorder and service. The only evidence that tends to show a connection between either chloracne or hidradenitis suppurativa and service consists of the veteran's own statements and those of his wife. However, as laypersons, they are not competent to provide an opinion requiring medical knowledge, such as a question of medical relationship. Espiritu, 2 Vet. App. 492. Because of the lack of competent evidence of a medical relationship to service, the claim for service connection for a skin disorder, to include chloracne and suppurativa hidradenitis, claimed as secondary to Agent Orange exposure, is not well grounded and is thus denied. The Board is aware of no circumstances in this matter that would put VA on notice that relevant evidence may exist, or could be obtained, that, if true, would make this claim "plausible." See generally McKnight v. Gober, 131 F. 3d 1483 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). The Board views its discussion as sufficient to inform the veteran of the elements necessary to complete his application for a claim for service connection for the claimed disability. Id. ORDER Service connection for a skin disorder, to include chloracne and suppurativa hidradenitis, claimed as secondary to Agent Orange exposure, is denied. NADINE W. BENJAMIN Acting Member, Board of Veterans' Appeals