Citation Nr: 1115332 Decision Date: 04/19/11 Archive Date: 05/04/11 DOCKET NO. 06-13 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a skin disorder, claimed as chloracne due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bridgid D. Cleary, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to October 1968 and January 1969 to February 1987. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). In February 2009, the Board remanded this case for further development, to include affording the Veteran a VA medical examination. The Board again remanded this case in September 2009 for compliance with the original February 2009 remand. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam Era. 2. Chloracne did not manifest to a compensable degree (10 percent) within a year of the Veteran's last exposure to an herbicide agent during service. 3. The skin disorder noted many years after service is not shown to be related to the Veteran's active service. CONCLUSION OF LAW A skin disorder was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in an October 2009 communication, and the claim was thereafter readjudicated in the January 2011 supplemental statement of the case. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. In compliance with the Board's February 2009 and September 2009 remands, the Veteran underwent VA medical examinations in March 2009 and October 2009. The former examination ruled out a chloracne diagnosis. The latter examination addressed the etiology of any currently shown skin tags. Thus, VA has complied with the February 2009 and September 2009 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Further regarding the duty to assist, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis The Veteran's service personnel records show that he served in the Republic of Vietnam from July 1971 to March 1972. As such, the Veteran is presumed to have been exposed to herbicides. 38 C.F.R. § 3.307(a)(6). Service connection for chloracne is presumed for herbicide-exposed veterans if the disease manifests to a compensable degree (10 percent) within a year of the last exposure to an herbicide agent during service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116; 38 C.F.R. §§ 3.307, 3.309. In this case, the Veteran was still on active military duty during the relevant time frame. There is no diagnosis of chloracne in service, but the Veteran's service treatment records show treatment for facial pruritis in September 1971 and for pseudofolliculitis barbae in February 1972. The record does not contain evidence from the relevant time period that shows deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck or deep acne other than on the face and neck, which is the criteria for a 10 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7829. At his September 2006 RO hearing, the Veteran and his wife testified that he began to experience acne shortly after his return from Vietnam. At the time of his August 2004 Agent Orange examination, he described this as blackheads on his face since his service in the Republic of Vietnam. Thus, even accepting the lay descriptions of his skin within the first year after his return from Vietnam as credible, there is no evidence of the deep inflamed nodules and pus-filled cysts necessary to warrant a compensable rating at that time. Accordingly, service connection is not warranted here on a presumptive basis. Although the Veteran is not presumptively entitled to service connection here, he is not precluded from establishing entitlement with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). Direct service connection requires competent and credible evidence of an in-service occurrence or aggravation of a disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this case, exposure to herbicides is presumed, and the service treatment records show treatment for skin conditions, as described above. Therefore, this requirement has been satisfied. Direct service connection also requires competent and credible evidence of a current disability. Davidson, 581 F.3d 1313. In this regard, there is disagreement within the record as to whether the Veteran has chloracne. Private medical records from February 2004 note an itchy rash all over the Veteran's body, which was attributed to an allergic reaction. The physician's assistant performing the August 2004 Agent Orange examination noted pitting scars on the Veteran's face and pedunculated moles on his left cheek and neck. This examiner diagnosed chloracne and recommended that the Veteran be scheduled for a Compensation and Pension examination. As a chronic disease, chloracne is not the type of disability from which a patient generally recovers. Despite this, the private and VA medical records since 2004 have not confirmed the earlier assessment of chloracne or established any other diagnosed skin disorder. Instead, there are occasional references to itchy, dry skin. Subsequent references to chloracne in the record have been made only as part of the Veteran's past medical history. Moreover, the VA physician who performed the March 2009 examination did not find evidence of chloracne or any other skin disorder at that time. In light of the lack of evidence confirming the chloracne diagnosis, the absence of treatment, and the subsequent examiner's findings, the Board finds the preponderance of the evidence is against this diagnosis. In so finding, the Board acknowledges McLain v. Nicholson, 21 Vet. App. 319 (2007), in which it was held that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. However, in this case, the totality of the evidence serves to invalidate the 2004 diagnosis, thus at no time during the claims period is such current disability established. However, the March 2009 examiner did note the presence of skin tags. Therefore, the current disability requirement is met with regard to those skin tags. The final requirement of direct service connection is a nexus between an in-service injury or disease and the current disability. Davidson, 581 F.3d 1313. To this end, the Veteran underwent a VA medical examination in March 2009 and an addendum opinion was issued in October 2009. The October 2009 VA medical opinion specifically denies a causal relationship between the skin tags and the Veteran's service. The examiner instead suggested that the skin tags were likely familial in nature. As the opinion was offered following a review of the record, and as a rationale was provided, such evidence is deemed highly probative. Moreover, no other competent medical evidence of record refutes the October 2009 VA examiner's finding. To the extent that the Veteran believes such a connection exists, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. Alternately, service connection may be established by a continuity of symptomatology, not necessarily continuity of treatment, between a current disorder and service. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); see also 38 C.F.R. § 3.303. In this case, the Veteran alleges continuous acne symptoms dating back to his active duty military service in Vietnam. The symptoms described, however, have varied through the years. Both the Veteran and his wife describe acne and blackheads during service, but at the time of his VA medical examination in March 2009, the Veteran describes itchy, dry skin and skin tags. These are not the same symptoms and therefore his symptomatology cannot be described as continuous. While all of these symptoms involve the skin, without medical evidence suggesting that the earlier acne and blackheads are related to the recent dry skin, the Board cannot infer that these are symptoms of the same skin disorder. Thus continuity of symptomatology is not established in this case. Moreover, the Veteran remained in active duty military service for nearly sixteen years after his return from Vietnam and yet his service treatment records, including several medical examinations, failed to note any skin abnormality. It is implausible that this Veteran refuse to seek treatment for a persistent skin disorder during those years, and also that these medical examiners would consistently fail to notice such a condition. Thus the absence of treatment records strongly suggests that he was largely asymptomatic during the remainder of his military service, thus weighing against a finding of continuity of symptoms. In sum, after reviewing all the evidence of record, the Board finds that the preponderance of the medical evidence is against service connection for a skin disorder, and as such the benefit of the doubt cannot be applied in the Veteran's favor. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for a skin disorder, claimed as chloracne due to herbicide exposure is denied. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs