Citation Nr: 0810480 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 03-22 048A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE 1. Entitlement to service connection for hypertension, to include as secondary to service-connected post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a chronic skin condition, to include chloracne. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Ganz, Associate Counsel INTRODUCTION The veteran had active military service from May 1965 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2002 and June 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied entitlement to service connection for hypertension and chloracne, respectively. The veteran testified at a Board hearing at the RO before the undersigned Veteran's Law Judge in September 2006. A transcript of the hearing is of record. In August 2007 the Board remanded the veteran's claim for a VA examination and opinions regarding the nature and etiology of the veteran's claimed hypertension and skin disorder disabilities. The issue of entitlement to service connection for hypertension, to include as secondary to service-connected post-traumatic stress disorder (PTSD) is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The competent medical evidence of record does not show a diagnosed chloracne disorder, nor does it show a relationship between the veteran's current skin disorder and service, either directly or presumptively. CONCLUSION OF LAW A chronic skin condition, to include chloracne, was not incurred in or aggravated by service, directly or presumptively. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103A, 5107 (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.3102, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in January 2004. The RO provided notice pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006) in March 2006 and August 2007, subsequent to the initial adjudication. While the March 2006 and August 2007 notices were not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in a November 2007 supplemental statement of the case, following the provision of notice. The veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his or her possession that pertains to the claims. VA has obtained service medical records, assisted the veteran in obtaining evidence, afforded the veteran a medical examination, obtained a medical opinion as to the nature and etiology of the disability, and afforded the veteran the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Analysis The veteran contends that he has chloracne related to his military service, particularly due to exposure to Agent Orange while in Vietnam. At his September 2006 hearing, the veteran testified that he was first diagnosed with chloracne by a private physician in 1967, but that the physician indicated that treatment records reflecting this are no longer available. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. A veteran may also establish service connection if all of the evidence, including that pertaining to service, shows that a disease first diagnosed after service was incurred in service. 38 C.F.R. § 3.303. Service connection connotes many factors, but basically it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service. See Pond v. West, 12 Vet. App. 341 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The record contains medical evidence of a number of current skin disorders, however chloracne is not among them. A March 2004 VA examination report shows diagnoses of benign cysts, comedone acne, seborrheic keratosis, and dermatofibroma. An August 2007 VA examination report shows a diagnosis of acne vulgaris with sebaceous cyst formation in post auricular areas. The August 2007 VA examiner indicated that he reviewed the veteran's claims file, and noted the veteran's contention that he developed cysts soon after his return from Vietnam. Service medical records do not show any treatment for, or complaints of, any skin disorders while in service. In certain circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent containing dioxin or 2,4-dichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f). It is required that chloracne, or other acneform disease consistent with chloracne, become manifest to a degree of 10 percent or more within a year. 38 C.F.R. § 3.307(a)(6)(ii). The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. Since the veteran served in Vietnam, he is entitled to a presumption of Agent Orange exposure in-service. However, regarding the veteran's claim that he has a current chloracne disability the negative evidence in this case outweighs the positive. Although the veteran has argued that he has chloracne that is related to an exposure in service, this is not a matter for an individual without medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The veteran's assertion that he was diagnosed with chloracne by a physician in 1967 is not supported by medical evidence of record, and the veteran has testified that the physician who diagnosed the condition no longer has the treatment records. The veteran's currently diagnosed skin conditions did not become manifest for many years after the veteran left service and, accordingly, even assuming that any of the veteran's current skin disorders are acneform diseases consistent with chloracne, he is still not entitled to any presumption that any of his claimed skin disorders are etiologically related to exposure to herbicide agents used in the Republic of Vietnam as the skin disorders did not become manifest to a degree of 10 percent or more within a year of the last date on which he served in Vietnam. See 38 C.F.R. § 3.309(e). Notwithstanding that the veteran's skin disorders are not entitled to presumptive service connection pursuant to 38 C.F.R. § 3.309(e), he can still establish direct service connection for these disorders. As the record shows current skin disorders and that the veteran is presumed to have been exposed to Agent Orange during service, the determinative issue is whether the two are related. During the veteran's August 2007 VA examination, the examiner opined that the veteran's current acne vulgaris with sebaceous cyst formation are not disorders that are in any way related to Agent Orange exposure in service. The earliest medical record of record indicating treatment for a skin disorder is dated in October 1988. It was reported that the veteran had dermatitis on his face, head, and other areas of the body. The veteran's SMRs and the medical evidence of record, indicate that contrary to his assertions, the veteran did not suffer an in-service skin disorder or any diagnosed skin disorder for many years after service. Additionally, although the veteran has argued that his current diagnoses, which he contends includes a diagnosed chloracne disorder, are related to service, this is not a matter for an individual without medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Though the veteran's lay assertions have been considered, they do not outweigh the medical evidence of record, which shows that the veteran's current acne vulgaris with sebaceous cyst formation disorder is in no way related to exposure to Agent Orange during service. A competent medical expert makes this opinion and the Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175. The preponderance of the evidence is against the service connection claim for a chronic skin disorder, to include chloracne; there is no doubt to be resolved; and service connection is not warranted. Gilbert v. Derwinski, 1 Vet. App. at 57-58. ORDER Entitlement to service connection for a chronic skin disorder, to include chloracne, is denied. REMAND The veteran contends that his hypertension began during active service. He has also claimed that it is secondary to his service-connected PTSD. At his September 2006 hearing, the veteran testified that in 1967 a VA doctor in Chattanooga, Tennessee, diagnosed him with hypertension and gave him medicine to treat the condition. Additionally, the veteran testified that he was diagnosed with, and treated for, hypertension at a VA facility in Birmingham, Alabama, in 1967. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including hypertension, when they are manifested to a compensable degree within the initial post service year. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2006). Although the RO has obtained the veteran's service medical records (SMRs), it has not attempted to obtain treatment records from VA Medical Centers in Chattanooga, Tennessee, or Birmingham, Alabama. The veteran testified that he received treatment for hypertension at both these facilities in 1967. To ensure that VA has met its duty to assist the appellant in developing the evidence in support of his claim pursuant to 38 U.S.C.A. § 5103A, and to ensure full compliance with due process requirements, this claim must be remanded so that the RO can attempt to obtain these records. VA medical records dated from 1981 to 2005 show continuous treatment for hypertension. Thus, it is clear that the veteran currently has hypertension. For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1), under Diseases of the Arteries and Veins. This must be confirmed by readings taken two or more times on at least three different days. Id. In the Board's August 2007 Remand, the examiner was asked to provide an opinion concerning the etiology of the veteran's hypertension disability on both a direct and secondary basis. During the August 2007 VA examination, the examiner noted that the veteran's blood pressure readings during service were normal. The veteran's separation examination report dated in February 1967 indicates a diastolic blood pressure reading of 88 (132/88). The VA examiner did not mention this fact in his examination report. 38 C.F.R. § 4.1 mandates that in the examination and evaluation of a disability, each disability be viewed in relation to its history. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). To prevent any possible oversight that may have occurred in the August 2007 VA examination, another examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain the veteran's treatment records from VA medical facilities in Chattanooga, Tennessee, and Birmingham, Alabama, for the period from January 1, 1967 to December 31, 1981. Note any negative responses received following the making of these requests. 2. Following the completion of #1, schedule the veteran for a VA examination to determine whether it is as least as likely as not that the veteran's current hypertension had its onset during his period of active service or within one year following active service. If the examiner finds that the veteran's current hypertension did not have its onset during active service, or within one year following active service, then he/she must also provide an opinion concerning whether it is as least as likely as not that the veteran's hypertension is otherwise related to service. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner is asked to note the February 1967 separation examination report noting the veteran's diastolic blood pressure reading of 88 (132/88), the VA examination report dated in August 1968 showing a diastolic blood pressure reading of 80 (128/80), and the private medical report dated in November 1969 showing a diastolic blood pressure reading 90 (134/90), and any other relevant evidence obtained by the RO pursuant to this remand. A detailed rationale for all medical opinions should be provided. 3. Thereafter, any needed additional development should be accomplished. The claim should then be readjudicated. If the claim remains denied, the RO should issue a supplemental statement of the case (SSOC) containing notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal and allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs