Citation Nr: 1304498 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 06-31 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a skin disorder, including as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from September 1969 to April 1971, during which he served in the Republic of Vietnam. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, that, in pertinent part, denied service connection for a "rash on the head and body (herbicide)." In a January 2007 signed statement, the Veteran withdrew his request to testify at a hearing before a Veterans Law Judge (Board hearing). In November 2010 and September 2011, the Board remanded the Veteran's case for further development. In September 2012, the Board requested a medical opinion, pursuant to 38 U.S.C.A. § 7109 and as set forth in a designated Veterans Health Administration (VHA) Directive, in response to the appellant's claim of entitlement to service connection for a skin disorder, including as due to exposure to Agent Orange. See 38 U.S.C.A. § 7109(a) (West 2002) and 38 C.F.R. § 20.901 (2012). See generally Wray v. Brown, 7 Vet. App. 488, 493 (1995). A VHA medical opinion was rendered in October 2012. In November 2012, the Veteran was given an opportunity to present additional argument. His service representative presented further written argument on the Veteran's behalf in January 2013. FINDING OF FACT The Veteran's current skin disease, diagnosed as tinea versicolor and vitiligo, did not had its onset in service, nor is it otherwise related to a disease or injury during the Veteran's military service, including exposure to Agent Orange CONCLUSION OF LAW A skin disorder 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. §§ 1101, 1110, 1112, 1113, 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In letters dated in December 2004 and March 2005, the agency of original jurisdiction (AOJ) satisfied VA's duty to notify the Veteran under the VCAA. 38 U.S.C.A. § 5103(a) (West 2002); Pub.L 112-154, § 504(a)-(c); and 38 C.F.R. § 3.159(b) (2012). The AOJ notified the Veteran of information and evidence necessary to substantiate his claim. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. In an August 2006 letter, the Veteran was informed of how VA determines disability ratings and effective dates, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). His service treatment and personnel records and VA and private medical records have been associated with the claims file, to the extent available. All reasonably identified and available medical records have been secured. A review of the Veteran's Virtual VA electronic file does not reveal any additional evidence relevant to the claim on appeal. Further, the Veteran was afforded VA examinations in June 2006 and January 2011 in connection with his claim on appeal, the reports of which are of record. As noted above, in September 2011, the Board remanded the Veteran's case to the RO for further development, that included obtaining any recent VA treatment records, and obtaining an addendum opinion from the January 2011 VA examiner. There has been substantial compliance with this remand, as an addendum opinion was obtained in September 2011. His recent VA treatment records, dated through June 2012, were also obtained. Then, in response to additional argument and evidence from the Veteran's representative, the Board sought an expert VHA medical opinion regarding the claim on appeal. The opinion was received at the Board in October 2012. The Veteran and his representative were provided with a copy of the opinion, and given the opportunity to respond; he submitted a response in December 2013 and his representative submitted a response in January 2013. An examination or medical opinion is adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. "Stefl v. Nicholson, 21 Vet. App. 120, 123 (quoting Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994)). It is a medical examiner's responsibility to provide a well-supported opinion so that the Board may carry out its duty to weigh the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (concluding that medical opinion is not entitled to any weight "if it contains only data and conclusions"); Stefl, 21 Vet. App. at 124 (stating that VA medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Court has also held that an examination is inadequate if the examiner ignores a veteran's assertions of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 311 (207) (finding error where "the VA examiner did not indicate whether he considered a veteran's assertions of continuity of symptomatology"). The October 2012 VHA report is adequate. The physician considered an accurate history, including the Veteran's reports, and is well supported by detailed reasons. The Board finds the duties to notify and assist have been met. II. Factual Background and Legal Analysis The Veteran asserts that he has a skin disorder, variously diagnosed as vitiligo and tinea versicolor, due to military service. In written statements in support of his claim, he contends that he was exposed to Agent Orange that caused or contributed to his post-service diagnosis of a skin disorder, and that his current rash is the same rash he observed in service. In September 2006 and December 2012 written statements, he said he did not have any body pigmentation or rash prior to entering service. Thus, he contends that service connection is warranted for a skin disorder. In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Under 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from injury or disease incurred in or aggravated by active military service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, evidence must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is a direct service connection theory of entitlement. Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of skin disease pathology, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In this case, the Veteran contends, in pertinent part, that he was exposed to Agent Orange in service that caused or contributed to his post service diagnosis of, and treatment for, a skin disorder, variously diagnosed as tinea versicolor and vitiligo. Veterans who, during active 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. §§ 1116; 38 C.F.R. § 3.307. If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and acute and sub acute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.307, 3.309(e). The enumerated diseases include chloracne or other acneform diseases consistent with chloracne. 38 C.F.R. § 3.309(e). VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for enumerated other disorders, and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See, e.g., Veterans and Agent Orange Update: Update 2010 (Update 2010), 77 Fed. Reg. 47924-8 (Aug. 10, 2012). See also Veterans and Agent Orange Update: Update 2008 (Update 2008), 75 Fed. Reg. 81,332 -335 (Dec. 27, 2010); Veterans and Agent Orange: Update 2006 (2007); Notice, 68 Fed. Reg. 27,630 -41 (May 20, 2003); 72 Fed. Reg. 32,395-407 (June 1, 2007); and Notices at 61 Fed. Reg. 57,586 -589 (1996); 64 Fed. Reg. 59,232 -243 (1999); and 67 Fed. Reg. 42,600 -608 (June 24, 2002). Notwithstanding the foregoing a claimant is not precluded from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, presumption is not the sole method for showing causation. In light of the foregoing, service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, the Veteran must show that he served in the Republic of Vietnam during the Vietnam era. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the Veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e). The Veteran's service records show that he served in the Republic of Vietnam from March 1970 to April 1971. Therefore, he is presumed to have been exposed to herbicides during active duty. The next question is whether the Veteran has a skin disease or disorder that is positively associated with exposure to Agent Orange or is otherwise related thereto. Here, the Veteran's identified skin diseases are not among those subject to presumptive service connection based on herbicide exposure. There is also no competent medical opinion or evidence otherwise linking the claimed skin diseases to herbicide exposure. The Veteran has expressed a belief that his current skin disease is related to herbicide exposure, but it would require medical expertise to say that a skin disease is the result of exposure to specific chemicals in service. An opinion as to such causation could not be based merely on lay observation. Inasmuch as there is no evidence that the Veteran has the requisite medical expertise, his opinion is not considered competent evidence. The remaining question is whether the current skin disease was directly incurred in service. Service treatment records show that, when examined for induction into service in August 1969, a skin abnormality was not noted and the Veteran was found qualified for active service. Clinical records reveal that, in May 1970, the Veteran was treated for a rash of the groin, diagnosed as candidiasis that was treated with myostatin. Later that month, he was treated for a rash on his face and diagnosed with pseudofolliculitis barbae. When examined for separation in April 1971, a skin abnormality was not noted. Post service, VA and non-VA medical records, dated in 1974 and from 2000 to 2012, include diagnoses of vitiligo and tinea versicolor. A November 18, 2004 private treatment record includes the Veteran's report of having a rash on his back for two months for which topical medication was prescribed. On November 30, 2004, the Veteran was evaluated by a VA clinic physician for a skin rash on his back in the form of papulosquamal eruption in a Christmas tree pattern without any herald patch. He also had some vitiligo on his penis. A February 2005 VA Agent Orange examination performed by a nurse practitioner includes the Veteran's complaint of skin problems attributed to Agent Orange. His past medical history included tinea versicolor since 1997. Objectively, the Veteran's skin had hypo pigmented areas on his head and legs for eight to 10 years, which were gradually increasing in size and occasionally itched. The assessment included tinea versicolor and vitiligo A June 2006 VA examination report regarding skin diseases, prepared by a clerk, reflects the Veteran's complaint of an intermittent rash on his back that started in approximately 2000 to 2004. Objectively, examination of his groin showed vitiligo on the head of his penis with no rash in the groin. The examiner opined that the Veteran's tinea versicolor was not caused by his groin rash in 1970. She noted that he was treated for candidiasis in May 1970 and had not had problems with a groin rash. He currently had vitiligo of the penis, no groin rash, and tinea versicolor on the back area only. In January 2007, the Veteran told a RO decision review officer that the rash he currently had was the same type of rash for which he was treated in service. A February 2007 VA outpatient record shows that the Veteran gave a history of having tinea versicolor since 1997. A February 2007 private pathology report includes the Veteran's clinical history of a dark lesion on his back with irregular borders for over one year that was getting slowly bigger. The microscopic diagnosis of the skin 'back" biopsy was solar lentigo. In January 2011, the Veteran underwent VA examination performed by a nurse practitioner. The Veteran reported that blemishes started on his skin "a number of years ago, could have been in early 2000". He had not seen a dermatologist for the disorder but saw his primary care physician although he could not recall how the condition was explained to him. At one time, the Veteran was told he had vitiligo. He was treated with prescribed lotion that did not help. He used Lubriderm over the counter, which helped. He had flares approximately twice a month that itched and caused reddish-like spots on his head. Upon clinical evaluation, the examiner diagnosed the Veteran with tinea versicolor and vitiligo. The examiner noted that service medical records were negative for vitiligo or tinea versicolor and the Veteran's active medical problem in VA treatment records was tinea versicolor. She said that tinea versicolor and vitiligo were not diseases recognized or presumed to be due to herbicides. A May 2011 VA outpatient record shows that the Veteran was seen for an annual examination that included follow up for tinea versicolor that he said was related to Agent Orange. The assessment included tinea versicolor. In a September 2011 addendum, the VA examiner opined that the Veteran's current skin diseases were not related to those noted in service. She explained that the candidiasis diagnosed in service was a yeast-based infection while the tinea versicolor diagnosed in November 2004 was fungal in etiology. A September 2011 VA outpatient record includes the Veteran's complaint of a dry rash that flared up and did not resolve for which he was currently treated with Selenium Sulfide. In a September 2012 statement, the Veteran's service representative cited texts for the proposition that all yeasts were fungi. He further argued that, what was identified as Candida in service, could have been tinea versicolor. The representative also argued that the medication prescribed to treat Candida would have been used for tinea, since there were no specific anti-tinea agents at the time. The Board sought an opinion from a VHA medical expert as to whether it was at least as likely as not (50 percent probability or more) that the Veteran's current vitiligo and tinea versicolor are secondary to herbicide exposure. The Board also requested an opinion as to whether it was as likely as not that the skin diseases identified in service are the same as the currently diagnosed tinea versicolor or vitiligo. Further, the Board requested an opinion as to whether it was at least as likely as not that the Veteran's skin diseases are otherwise related to the skin diseases identified in service. The claims folder was submitted, along with specific questions, to a physician at a VA medical facility in Madison, Wisconsin. In the October 2012 opinion, a VHA dermatologist, who reviewed the Veteran's service and post service VA medical records in his report, opined that it was "extremely unlikely (less than 50 percent probability) that the current diagnosis of vitiligo and tinea versicolor are secondary to herbicide exposure". He explained that "[v]itiligo is a common condition that affects up to 2% of the population. It is an idiopathic disorder with both genetic and non-genetic factors suspected as contributing to the development of disease". The examiner said that there was "no medical evidence to support environmental exposures in precipitating disease". The VA physician further stated that "[t]inea versicolor is caused by normal skin yeast called Malassezia...[and] is caused by yeast, rather than by a true dermatophytes." According to the medical specialist, Malassezia produced a chemical that diffused through the epidermis and impaired the function of pigment producing cells, often leading to areas of hypo pigmentation. He said that "[i]t can...frequently be mistaken for vitiligo using the untrained eye." According to the VA physician, it was "very likely", given that the Veteran was not evaluated by a dermatologist, that the diagnosis of either vitiligo or tinea versicolor in fact only represented one of these diseases, as they can often be confused clinically. The examiner noted that the last VA examination documented consistent findings supporting separate diagnoses occurring in combination but, nevertheless, "these conditions are not related to candidiasis of the groin." Additionally, the VA physician opined that "[i]t is not likely that the [Veteran's] skin disease identified in service, that being Candida of the groin, is the same as currently diagnosed vitiligo or tinea versicolor." The VA physician explained that "candidiasis of the groin is easily distinguishable on clinical exam from vitiligo and tinea versicolor...[and] it is very difficult to see clinical lesions of tinea versicolor in sun-protected areas". The VHA physician said that, "it is very unlikely that the [Veteran's] current skin disease(s) is related to the skin disease identified in service. Tinea versicolor and vitiligo are very common in the population and are unrelated to candidiasis. It is more likely that all three diseases occurred separately, rather than being a single condition related to his skin disease while in service". Since the VHA physician's opinion was based on a review of the pertinent history, and was supported by a detailed rationale, it provides compelling evidence against the Veteran's claim. The VHA physician did not only provide data and conclusions, but also provided a clear and reasoned analysis that the Court has held is where most of the probative value of a medical opinion comes is derived. See Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008); see also Wray v. Brown, 7 Vet. App. at 493. There is no medical opinion of record to refute the October 2012 VA examiner's opinion. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness's personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). The Veteran is competent to describe his observable symptoms, such as a skin rash. Hence, his report that the skin rash observed in service was the same as that observed after service, is competent. Barr v. Nicholson, 21 Vet. App. at 303; Buchanan v. Nicholson, 451 F.3d at 1331. The Veteran is not competent to say; however, that the skin disease in service, was actually the same condition that has been identified currently. While the Veteran might sincerely believe that the in-service and post-service conditions appeared the same; the VHA dermatologist explained that the condition diagnosed in service would be readily distinguishable by medical professionals from the current skin conditions, and would likely not be confused. The medical text evidence provided by the Veteran's representative, does not contradict the conclusions reached by the VHA dermatologist. To the extent the Veteran is now claiming that skin problems have persisted since service, this is inconsistent with the overall record which reflects skin symptomatology surfaced after service, the Veteran's own reports of symptoms dating from 1997 and the service separation examination and history showing no skin disability. Given his statements and the medical record any reports of a continuity of symptomatology would not be credible. The Board notes parenthetically that there is no contention or evidence that the tinea barbae identified in service is in any way related to the current skin diseases. The Board has considered the Veteran's statements as to his incurrence during service, in light of his service treatment records, post-service medical evidence, and the October 2012 VHA medical opinion. The Board finds that the objective medical evidence of record is most persuasive and of most probative value. The record reflects that the Veteran was treated on one occasion, in May 1970, for candidiasis and, later that month, for pseudofolliculitis barbae, during military service. The post service records show that tinea versicolor and vitiligo were diagnosed in 2004, more than 30 years after his discharge from service. In sum the medical opinions are against a link between the current disability and service, there is no competent and credible evidence of a continuity of symptoms; nor is there other competent and credible evidence linking the current skin disorders to service. Thus, a clear preponderance of the objective and probative medical evidence of record is against the Veteran's claim for service connection for a skin disorder. Reasonable doubt does not arise, and the claim must be denied. Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001). (CONTINUED ON NEXT PAGE) ORDER Service connection for a skin disorder, including tinea versicolor and vitiligo, is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs