Citation Nr: 0811955 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 99-18 205A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a chronic skin disability, including chloracne, claimed as a result of exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kelli A. Kordich, Counsel INTRODUCTION The veteran served on active duty from February 1962 to August 1970, including service in Vietnam from January 1968 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, that denied the appellant's claim of entitlement to service connection for a chronic skin disorder to include chloracne as a result of herbicide exposure. The appellant subsequently moved to Florida, and the case was certified to the Board by the RO in St. Petersburg, Florida. The Board remanded the appeal in a September 2003 decision for further development. In January 2002, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims folder. FINDING OF FACT A chronic skin disability, to include chloracne, is not shown by competent medical evidence to have a nexus or relationship to service or exposure to herbicides during service. CONCLUSION OF LAW A chronic skin disability, including chloracne was not incurred in or aggravated by active military service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1112, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In general, service connection requires (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). In addition, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed in 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent (Agent Orange), unless there is affirmative evidence to establish that he or she was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to Agent Orange during active military, naval, or air service, certain diseases, including chloracne or other acneform disease consistent with chloracne, the veteran shall be service connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. See 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e), however, must have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, must become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. See 38 C.F.R. § 3.307(a)(6)(ii). Even if a veteran is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation). In this case, the record shows that the veteran served in the Republic of Vietnam during the Vietnam era. The veteran has received various diagnoses in the past to include dermatitis, tinea cruris, tinea corporis, tinea versicolor, folliculitis, adult acne, and chloracne. The latter of which (chloracne) is included in the list of diseases for which the Secretary of Veterans Affairs has determined is associated with exposure to herbicides used in the Republic of Vietnam during the Vietnam Era. 38 C.F.R. §§ 3.307(d), 3.309(e). However, service connection for chloracne on a presumptive basis is not warranted based on exposure to herbicides, because chloracne did not become manifest to a degree of 10 percent or more within a year after the date on which he was last exposed to herbicides. In this regard, the veteran's service medical records show treatment once in 1968 for a rash in the groin area. Subsequent service medical records did not show a rash or skin condition. A VA examination report dated in July 1974 makes no reference to a skin disorder. The examiner noted small healed burn marks on the left forearm and right shoulder. In fact, the first documented diagnosis of chloracne is contained in a November 1996 VA treatment record. Consequently, service connection for chloracne on a presumptive basis as a result of Agent Orange exposure is not warranted. Therefore, service connection can only be established with proof of actual direct causation (i.e., a medical opinion indicating that the veteran's skin disorder involving chloracne is related to his period of service, to include Agent Orange exposure therein). After reviewing the evidence of record, it is concluded that the preponderance of the evidence is against entitlement to service connection for a chronic skin disability to include chloracne on a direct basis. A VA examination in 1975 noted white scaly lesions on the posterior back and anterior shoulders. There was no itching noted. The veteran reported two to three week onset. VA treatment records in 1996 and 1997 show several skin conditions including chloracne. An October 1997 VA examination noted the veteran was seen in March 1979 for contact dermatitis of the left arm and tinea corporis. The veteran reported his current treatment was with hydrocortisone cream to groin rash and Tretinion cream to his face and for acne like lesions. The examination showed scattered acne lesions over his abdomen and chest. The groin was clear. The diagnoses included scattered chloracne over the chest and abdomen, chronic inflammatory dermatitis of the groin, which responded to hydrocortisone treatment. At his January 2002 Board Central Office hearing, the veteran testified that he had skin problems while in Vietnam such as blistering around his cuffs of his arms, his chest, and his back. The veteran stated that he sought treatment for his skin disorder while in service. The veteran stated he sought treatment for his skin disorders approximately 10 to 15 times. The veteran claimed his service medical records were incomplete as they did not indicate he sought treatment for his skin disorders. After returning to the U.S., the veteran testified that he continued to get treatment for his skin disorders but not at Fort Lewis, he believed it was when he was temporary duty (TDY). The veteran stated that six months after separation from service, he sought treatment approximately once every three months. The appeal was remanded by the Board in September 2003 so that VA treatment records noted by the veteran in his Board Central Office hearing could be associated with the claims file. At a July 2003 VA examination, the examiner noted that the medical records mention a history of chloracne, but no descriptive findings that support current problems with chloracne or causally relate his current symptoms to chloracne. In 1997, there were mentions of diagnoses of folliculitis and acneiform papules. In August 1997, there was a question of an early furuncle in the groin. In June 1995, there was a question of folliculitis with red papules on the chest. In 1979, there was mention of contact dermatitis of the left arm and tinea corporis. In January 1968, the veteran was described as having a rash in the groin region and given Mycolog for treatment. The examiner noted he could not find evidence of chronic skin disabilities, such as acne, chloracne, or folliculitis. After examination, the examiner noted skin pathology was reflected as follows: 1). chronic folliculitis of the back, chest, and scalp. The condition was noted as mild, but the veteran did report flareups. Although by the veteran's history, this condition did begin while in Vietnam, there was lack of documentation in the form of medical records describing the conditions presence at the time or the date of its onset. The examiner's opinion as to the onset date of this condition would therefore be purely speculation and based on the veteran's history alone. 2). Hyperpigmentation of the flexor aspects of both wrist, left more than right. In the examiner's opinion, this was as likely as not due to previous episodes of dermatitis that were not currently active and therefore represented post inflammatory hyperpigmentation. Other than in mention in the records of contact dermatitis of the left arm, the examiner could find no other mentions of this condition specifically. 3). old acne scarring of the face. There were no active inflammatory acne lesions seen on the face. 4). Although the veteran gave a history of other recurrent skin conditions such as boils in the groin or pruritic rashes and irritation in the groin area, evidence of these conditions was not currently seen on examination. In summary, the examiner noted that he could find no documented evidence that the veteran had a chronic skin disability while in the service or shortly after discharge that related to any of his current findings on examination. For this reason, it was his opinion that the veteran's current skin pathology as described was not likely causally or etiologically related to his military service. A statement from James A. Plemmons, M.D., dated July 2003 noted the veteran had a history of exposure to toxic herbicides during military experience. It was noted that since discharge from service, he was plagued with chronic infections of the skin, especially on the back, chest, scalp, and groin areas. It was noted that the veteran had been given a diagnosis of chloracne, presumed secondary to chemical exposure. The veteran had been treated with antibiotics, retin-A, hydrocordosone cream, and nizoral medicated shampoo. An August 2003 statement from Dr. Plemmons notes that it would not be fair to render an opinion of the veteran's skin problem based on histories of second hand information. Dr. Plemmons stated the veteran appeared to have chronic skin problems such as: folliculitis, acne, and hidradentitis supurativa. These are chronic conditions and have periods of activity and remission. Dr. Plemmons noted that these conditions have been associated with chemical exposure which have probably occurred in the veteran's past working environment. To properly associate the exposures with disease states, would require a statistic analysis of thousands of people with a similar history. In this case the record is negative for complaints, findings or treatment of a chronic skin disability to include choracne in service. A VA examination report dated in July 1974 makes no reference to a skin disorder. In evaluating medical opinion evidence, the Board may reject a medical opinion that is based on facts provided by the veteran that have been found to be inaccurate or because other facts present in the record contradict the facts provided by the veteran that formed the basis for the opinion. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (the Board may not disregard a medical opinion solely on the rationale that the medical opinion was based on a history given by the veteran). In this case, service as well as non-service medical records directly contradict the veteran's recollection of having a chronic skin disability as well as chloracne while in service and shortly thereafter. The statements from Dr. Plemmons which loosely relate the veteran's current skin disabilities to service are solely based on the veteran's self-reported history as there are no other corroborating records substantiating that the veteran complained, was treated for, or was diagnosed with chloracne or a chronic skin disability while in service or shortly after his separation from service. As noted above, there is no medical evidence of a chronic skin disability to include chloracne until many years after separation from service. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (the Board's rejection of the doctors' opinions, which were based on history related by the appellant, was justified because the appellant's testimony conflicted with the service medical records). The Board places significant probative value on the July 2003 VA examination report in which the examiner concluded that he could find no documented evidence that the veteran had a chronic skin disability while in the service or shortly after discharge that related to any of his current findings on examination. For this reason, it was his opinion that the veteran's current skin pathology as described was not likely causally or etiologically related to his military service. This opinion provides highly probative evidence against a finding that the veteran's various other diagnosed skin disorders are related to service. Further, the service and post-service medical record would clearly support this finding. Thus, service connection for a chronic skin disability, to include chloracne is not warranted on a direct basis. As the preponderance of the evidence is against the claim for service connection for a chronic skin disability to include chloracne, the benefit-of-the-doubt rule does not apply and the Board must deny the claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Proper notice must also ask the claimant to provide any evidence in his or her possession that pertains to the claim. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, there is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in November 2002 and April 2004 correspondence fulfills the provisions of 38 U.S.C.A. § 5103(a). The Board acknowledges that under 38 U.S.C.A. § 5103(a) notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the provisions of 38 U.S.C.A. § 5103(a) were enacted after the rating decision at issue, thus making compliance with the timing requirements of 38 U.S.C.A. § 5103 impossible. Since then, however, the content of the notices provided to the appellant fully complied with the requirements of that statute. The veteran has been afforded a meaningful opportunity to participate in the adjudication of his claim, to include the opportunity to present pertinent evidence. Thus any error in the timing was harmless, the appellant was not prejudiced. Simply put, there is no evidence any VA error in notifying the appellant that reasonably affects the fairness of this adjudication. ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). The Board acknowledges that the veteran was not provided the specific notice required by Dingess v. Nicholson, 19 Vet. App. 473 (2006) (as the degree of disability and effective date of the disability are part of a claim for service connection, VA has a duty to notify claimants of the evidence needed to prove those parts of the claim). The failure to provide the specific notice required by Dingess is harmless in this instance because the veteran's claim for service connection for a chronic skin disability to include chloracne is denied. Any questions as to the disability rating or the effective date to be assigned are moot. The veteran also testified at a Board Central Office hearing in January 2002. In addition, VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim. The veteran's service medical records, VA treatment records, VA examinations, and private medical records have been associated with the claims folder. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. ORDER Entitlement to service connection for a chronic skin disability including chloracne, claimed as a result of exposure to herbicides is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs