Citation Nr: 0814893 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 05-04 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for chloracne. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Lipstein, Associate Counsel INTRODUCTION The veteran served on active duty from July 1965 to March 1969. This matter comes to the Board of Veterans' Appeals (Board) from a September 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in December 2004, a statement of the case was issued in February 2005, and a substantive appeal was received in February 2005. The veteran withdrew a request for a Board hearing in March 2008. FINDING OF FACT Chloracne was not manifested during the veteran's active duty service or for many years thereafter, nor is otherwise related to such service chloracne, to include as due to herbicide exposure. CONCLUSION OF LAW Chloracne was not incurred in or aggravated by service, nor may chloracne be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007) Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notification obligation in this case was accomplished by way of a letter from the RO to the veteran dated in July 2004. In March 2006, the veteran was provided with notice of the types of evidence necessary to establish a disability rating and the type of evidence necessary to establish an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Despite initial inadequate notice provided to the veteran, the Board finds no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). In any event, since the Board concludes below that the preponderance of the evidence is against entitlement to service connection, any questions as to the appropriate disability rating and effective dates to be assigned are rendered moot. Thus, VA has satisfied its duty to notify the appellant. The RO also provided assistance to the veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. Initially, the evidence does not establish that the veteran suffered "an event, injury or disease in service," with regard to his chloracne, so it is not necessary to obtain a VA medical opinion with regard to etiology. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In other words, absent such evidence, the Board finds that it is unnecessary to require the veteran to report for a VA medical examination or to ask a medical expert to review the record because any examination report or medical opinion could not provide competent evidence of the incurrence of chloracne in service. Moreover, given the absence of any competent evidence of the claimed post-service disability until more than 34 years after service, any current opinion provided at this point would be no more than speculative. See 38 C.F.R. § 3.102 (2007) (a finding of service connection may not be based on a resort to speculation or even remote possibility). The evidence of record contains the veteran's service medical records and post-service VA and private medical records. The veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied. For all the foregoing reasons, the Board will proceed to the merits of the veteran's appeal. Criteria & Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f). Moreover, it is provided that the diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acne form disease consistent with chloracne, and porphyria cutanea tarda must have 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. 38 C.F.R. § 3.307(a)(6); see also Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586-57589 (1996). At this point, the Board also acknowledges that in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Here, the veteran's DD-214 shows that he received the Vietnam Service Medal and Vietnam Campaign Medal. Military personnel records further show that he was stationed in Saigon in October 1968. The evidence thus shows that the veteran served in Vietnam during the applicable time period and is therefore presumed to have been exposed to herbicide agents. See 38 U.S.C.A. § 1116(f). However, after reviewing the entirety of the record, the Board finds that the preponderance of the evidence is against service connection for chloracne. There is no documentation of any chloracne during service. Service medical records do not show any pertinent complaints or symptoms. A service Report of Medical Examination dated in February 1969 for separation purposes reflects that the veteran's skin, lymphatics were clinically evaluated as normal. Further, it does not appear that the veteran has even alleged that chloracne was manifested during service. Private medical records from Hillcrest Medical Center dated in 2000 reflect that the veteran was diagnosed with adult acne. VA outpatient treatment records dated in March 2004 reflect that the veteran was found to have hypopigmented scars on his chest. The veteran was assessed with chloracne. In November 2004, the veteran was diagnosed with pustular acne. Assuming for the sake of argument that the veteran does now have chloracne, the evidence shows that it was first manifested many years after service and does not fall within the one year presumption. In this regard, the record does not show pertinent complaints or medical treatment for a number of years after discharge from service. A prolonged period without medical complaint can be considered, along with other factors concerning the claimant's health and medical treatment during and after military service, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability which still exists currently. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, the Board finds that the lack of any evidence of continuing chloracne for over 34 years between the period of active duty and the evidence showing treatment for chloracne is itself evidence which tends to show that no chloracne was incurred as a result of service. With regard to the question of whether chloracne is otherwise related to service, this is clearly a medical question. There is no medical evidence of record to support such a finding. While acknowledging the veteran's belief that his chloracne is due to service, it is well established that as a layperson, the veteran is not considered capable of opining as to the etiology of his disability. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). This is a case where the preponderance of the evidence is against the claim and the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for chloracne is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs