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