Citation Nr: 0121037 Decision Date: 08/17/01 Archive Date: 08/27/01 DOCKET NO. 00-02 874 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for subcutaneous lesions of the neck, including as due to herbicide exposure. 2. Entitlement to service connection for seborrheic dermatitis of the scalp and chest, including as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service from September 1967 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an RO rating decision of July 1999 which denied service connection for subcutaneous lesions of the neck (most likely lipomata) and seborrheic dermatitis of the scalp and chest, including as due to exposure to herbicides in Vietnam. In May 2001, the RO continued the denial of service connection for these particular skin conditions; the RO granted service connection for another skin condition, chloracne. The veteran had a Board hearing at the RO (i.e., Travel Board hearing) in June 2001. Service connection for growths under the skin with sores to the neck and back, as a result of exposure to herbicides, was previously denied by the RO in June 1998, July 1998, September 1998, and October 1998. In May 1999, the veteran submitted evidence and specifically requested to reopen his claim; the evidence included medical diagnoses of subcutaneous lesions of the neck and seborrheic dermatitis. The RO considered this as a reopened claim. The Board agrees, noting that the issues are more specific and limited than the previously decided issues, and that the additional evidence includes a nexus opinion. Therefore, new and material evidence has been submitted to reopen the claim, and the issues on appeal will be reviewed on a de novo basis. 38 U.S.C.A. §§ 5108, 7105 (West 1991 & Supp. 2001); 38 C.F.R. § 3.156(a) (2000); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The present Board decision addresses the issue of service connection for seborrheic dermatitis of the scalp and chest, including as due to herbicide exposure. The remand at the end of the decision addresses the other issue of service connection for subcutaneous lesions of the neck, including as due to herbicide exposure FINDING OF FACT Seborrheic dermatitis of the scalp and chest began years after service and was not caused by any incident of service including exposure to herbicides in Vietnam. CONCLUSION OF LAW Seborrheic dermatitis of the scalp and chest was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1116 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2000). REASONS AND BASES FOR FINDING AND CONCLUSION I. Background The veteran had active service from September 1967 to September 1970. He served in Vietnam from May 1968 to May 1969. Service medical records do not show seborrheic dermatitis. A rash all over the body noted in March 1969 was thought to be acne, and folliculitis and tinea cruris were noted in June 1970. Subsequent to service, a VA Agent Orange examination in October 1983 was devoid of any complaints or findings pertaining to the skin. According to the May 1998 report of a March 1998 dermatology evaluation by I. Whitcroft, M.D., the veteran's complaints included scaliness and itching on his chest and occasionally the upper back. Skin findings included mild seborrheic dermatitis of the scalp and chest. The veteran was advised to use tar shampoos. On a VA examination in May 2000, the veteran had excessively oily skin surfaces on the scalp, anterior chest, and upper back, with several small erythematous papules associated with hair follicles in these regions. The pertinent diagnosis was seborrheic keratitis involving the scalp, anterior chest, and upper back skin surfaces, as noted by Dr. Whitcroft. At his Travel Board hearing in June 2001, the veteran did not make any specific contentions concerning the seborrheic dermatitis aspect of his skin disorders. He contended, in general, that he was exposed to Agent Orange in Vietnam, and that he believes his skin conditions developed as a result of that exposure. II. Analysis As to the issue of service connection for seborrheic dermatitis of the scalp and chest, including as due to herbicide exposure, the veteran has not identified additional relevant evidence that has not already been sought and/or associated with the claims file, he has been afforded a personal hearing and a VA examination, and he has been apprised of the requirements to substantiate his claim. Accordingly, the notice and duty to assist provisions of the law have been satisfied. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange) if he has one of the listed Agent Orange presumptive diseases, unless there is affirmative evidence to establish that he was not exposed to any such agent during such service. In the case of such a veteran, service incurrence for the following diseases will be presumed if they are manifest to a compensable degree within specified periods, even if there is not record of such disease during service: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcomas. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e); Chase v. West, 13 Vet.App. 413 (2000); McCartt v. West, 12 Vet.App. 164 (1999). With regard to the Agent Orange theory, the veteran's seborrheic dermatitis is not among the diseases listed in the Agent Orange law and regulations (38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e)) for presumptive service connection, and thus such legal authority is of no benefit in esablishing service connection. Since the veteran's seborrheic dermatitis is not listed in the Agent Orange law, for service connection to be established on the theory that Agent Orange nevertheless caused the disorder, there would have to be competent evidence of actual Agent Orange exposure during service (such exposure is not presumed when a condition is not one of those listed in the Agent Orange legal authority) plus competent medical evidence linking the condition to Agent Orange exposure in service. Chase, supra; McCartt, supra. Lay assertions as to diagnosis and etiology of a medical condition, such as those made by the veteran, are not competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence of record does not show seborrheic dermatitis until the dermatology evaluation in 1998, many years after the veteran's 1967-1970 active duty. There is no medical evidence suggesting that this particular skin condition was caused by any incident of service including claimed herbicide exposure in Vietnam. The weight of the credible evidence establishes that the condition began years after service and was not caused by any incident of service including claimed herbicide exposure. The Board concludes that seborrheic dermatitis was neither incurred in nor aggravated by service. As the preponderance of the evidence is against the claim for service connection for seborrheic dermatitis, the benefit-of- the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Service connection for seborrheic dermatitis of the scalp and chest is denied. REMAND The Board finds there is a further duty to assist the veteran in developing evidence pertinent to his claim for service connection for subcutaneous lesions of the neck. 38 U.S.C.A. § 5103A (West Supp. 2001) (Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2096-98 (2000)). The veteran contends that he developed subcutaneous lesions of the neck while he was in service, as a result of herbicide exposure. Service medical records contain a general notation of folliculitis in June 1970; the location was not specified. Private treatment records from the Hand County Clinic dated in March 1998 note that he complained of a chronic recurring condition of swelling in the back hairline and subcutaneous lumps around the back of the head. He had been treated with many courses of antibiotics for his skin condition. He was evaluated by I. Whitcroft, M.D., a dermatologist, in March 1998; that examination revealed a five year history of periodically purulent lesion on the side of the neck. Although initially thought to be most likely lipomata, a biopsy was conducted in April 1998, which resulted in a diagnosis of dermal fibrosis. In May 1998, Dr. Whitcroft diagnosed acne keloides nuchae, which he defined as scarring secondary to folliculitis. In February 1999, a biopsy of a mass from the posterior neck conducted at a VA facility resulted in a diagnosis of dense keloidal scarring of the dermis and subcutaneous tissue. On the VA examination in May 2000, the veteran reported that he had had a subsequent biopsy in June 1999 at a VA facility, which had resulted in a diagnosis of scleredema. The assessment on the May 2000 examination included scleredema of the posterior neck and inferior occipital areas, with the skin lesions developing after discharge. It was noted that the skin condition was associated with poorly controlled adult diabetes. Also noted was a diagnosis of poorly controlled diabetes mellitus, type II; the presence of diabetes is well-documented elsewhere in the file as well. The Board notes that the May 2000 examination diagnosis of scleredema was based, in part, on the veteran's report of the result of a June 1999 biopsy which was not available to the examiner. Under the circumstances of this case, the actual biopsy report should be obtained. In addition, if necessary to reconcile the diagnoses with regard to subcutaneous lesions of the neck, another examination should be conducted. In November 2000, the veteran filed a claim for service connection for diabetes mellitus. Recently, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes) was added to the list of diseases subject to presumptive service connection based on herbicide exposure in Vietnam. 66 Fed. Reg. 23166-23169 (May 8, 2001) (to be codified at 38 C.F.R. § 3.309(e)). Although the RO has not yet adjudicated this issue, because of the diagnosis of scleredema (for the condition described as subcutaneous lesions of the neck) and the medical evidence associating scleredema with diabetes mellitus, the issue of service connection for diabetes is inextricably intertwined with the pending appellate issue of service connection for subcutaneous lesions of the neck. Accordingly, the issue of service connection for diabetes mellitus should be adjudicated by the RO prior to a final determination on the pending appellate issue of service connection for subcutaneous lesions of the neck. Harris v. Derwinski, 1 Vet. App. 180 (1991) Accordingly, this issue is REMANDED to the RO for the following: 1. The RO should prepare an initial decision on the veteran's November 2000 claim for service connection for diabetes mellitus, in light of the recent amendment to 38 C.F.R. § 3.309(e), adding Type II diabetes mellitus to the list of diseases subject to presumptive service connection based on herbicide exposure in Vietnam. 2. The RO should obtain the records of biopsy of a nodule from the veteran's neck conducted on or about June 1999 at the Minneapolis VA Medical Center, and all other records of VA treatment or evaluation for subcutaneous lesions of the neck. 3. Thereafter, if necessary to reconcile the diagnoses pertaining to the subcutaneous lesions of the neck, the veteran should be scheduled for a VA dermatology examination to determine the nature and etiology of subcutaneous lesions of the neck. The claims folder must be available to and reviewed by the doctor in conjunction with the examination, and the examination report should note that such has been accomplished. All indicated tests should be completed. The doctor should provide a specific diagnosis for the subcutaneous lesions of the neck, and should diagnose or rule out scleredema. Based on examination findings, a review of historical records, and medical principles, the doctor should provide a medical opinion, with full rationale, as to the etiology of any current subcutaneous lesions of the neck (including whether such lesions represent scleredema and whether scleredema is due to diabetes). 4. After the above development has been accomplished, the RO should review the claim for service connection for subcutaneous lesions of the neck, including as due to herbicide exposure. (If the RO establishes service connection for diabetes, it should also adjudicate whether secondary service connection under 38 C.F.R. § 3.310 is warranted for subcutaneous lesions of the neck.) If the claim is denied, the veteran and his representative should be provided a supplemental statement of the case, and given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). L. W. TOBIN Member, Board of Veterans' Appeals