Citation Nr: 1307136 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 07-10 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a chronic skin disorder, including as a result of defoliant exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from March 1969 to March 1971. This case comes to the Board of Veterans' Appeals (Board) on appeal of a January 2006 rating decision of the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded by the Board for a compensation examination in April 2010. That examination was found by the Board to be inadequate and the case was again remanded for a second examination in November 2012. This was accomplished and the case has been returned to the Board. FINDINGS OF FACT 1. The Veteran had complaints of a skin disorder at separation from service, but no injury, disease, or chronic symptoms of a skin disorder were manifested during service. 2. The Veteran did not continuously manifest symptoms of a chronic skin disorder in the years after service. 3. A chronic skin disorder, now diagnosed as dyshidrosis eczema, is not shown to have been caused by any in-service event, including as a result of defoliant exposure during service. CONCLUSION OF LAW A chronic skin disorder, now diagnosed as dyshidrosis eczema, was neither incurred in nor aggravated by service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of the claim. October 2005 and October 2006 letters explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. The October 2006 letter also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran has also been afforded VA medical examinations in connection with the claim, most recently in November 2011. 38 C.F.R. § 3.159(c) (4) (2012). The Board finds that the most recent opinion obtained is adequate. The opinion was provided by a qualified medical professional and were predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the Veteran's representative has challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 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). The statutory provision specifically covering Agent Orange is 38 U.S.C.A. § 1116. Under 38 U.S.C.A. § 1116(f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; type 2 diabetes, non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma, ischemic heart disease, "all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia)," and Parkinson's disease. 38 C.F.R. § 3.309(e) (2012). Aside from these presumptive provisions, service connection might be established by satisfactory proof of direct service connection. See Combee v. Brown, 34 F.3rd 1039 (Fed. Cir. 1994). In accordance with VA regulations, the National Academy of Science (NAS) issued "Veterans and Agent Orange: Update 2008" (Update 2008). The attached notice explains a determination made by the Secretary, based upon Update 2008 and prior NAS reports, that a presumption of service connection based on exposure to herbicides in the Republic of Vietnam is not warranted for the following health outcomes: Hypertension; Cancers of the oral cavity (including lips and tongue), pharynx (including tonsils), or nasal cavity (including ears and sinuses); Cancers of the pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic organs; Esophageal cancer; Stomach cancer; Colorectal cancer (including small intestine and anus); Hepatobiliary cancers (liver, gallbladder and bile ducts); Pancreatic cancer; Bone and joint cancer; Melanoma; Non-melanoma skin cancer (basal cell and squamous cell); Breast cancer; Cancers of reproductive organs (cervix, uterus, ovary, testes, and penis; excluding prostate); Urinary bladder cancer; Renal cancer (kidney and renal pelvis); Cancers of brain and nervous system (including eye); Endocrine cancers (thyroid, thymus, and other endocrine organs); Leukemia (other than all chronic B-cell leukemias including chronic lymphocytic leukemia and hairy cell leukemia); Cancers at other and unspecified sites; Neurobehavioral disorders (cognitive and neuropsychiatric); Movement disorders (including amyotrophic lateral sclerosis, but excluding Parkinson's disease); Chronic peripheral nervous system disorders; Respiratory disorders (wheeze or asthma, chronic obstructive pulmonary disorder, and farmer's lung); Gastrointestinal, metabolic, and digestive disorders (changes in liver enzymes, lipid abnormalities, and ulcers); Immune system disorders (immune suppression, allergy, and autoimmunity); Circulatory disorders (other than ischemic heart disease); Endometriosis; Effects on thyroid homeostasis; and Certain reproductive effects, i.e., infertility, spontaneous abortion, neonatal or infant death and stillbirth in offspring of exposed people, low birth weight in offspring of exposed people, birth defects (other than spina bifida) in offspring of exposed people, childhood cancer (including acute myelogenous leukemia) in offspring of exposed people. See Notice, 75 Fed. Reg. 247 81,332-35 (Dec. 27, 2010) In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (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 facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F. 3d at 1377. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service Connection for a Chronic Skin Disorder The Veteran contends that service connection should be established for a chronic skin disorder. He asserts that this disability is related to service and points out that while on active duty he was treated for "jungle rot." It is also claimed that his skin disability is the result of defoliant exposure while he was stationed in the Republic of Vietnam (RVN). Review of the Veteran's records shows that his service included time in the RVN. As such, he is presumed to have been exposed to defoliants. The Board finds that the Veteran had complaints of a skin disorder at separation from service, but no injury, disease, or chronic symptoms of a skin disorder were manifested during service. Review of the Veteran's STRs shows that the Veteran did not have complaints or manifestations of a skin disorder while he was on active duty, but that on medical history report at separation from service, he did complained of having or having had a skin disorder. He did not undergo an examination at that time; however, but signed a statement that there had been no change in his medical condition. It is noted that on examination in November 1970, clinical evaluation of the skin was normal. As such, the Veteran had complaints of having had a skin disorder during service, but there is no demonstration that he had a chronic skin disability while he was on active duty. The Board finds that the Veteran did not continuously manifest symptoms of a chronic skin disorder in the years after service. The record does not contain medical records demonstrating a skin disability in the years after service. The Veteran has stated during September 2010 and November 2012 examinations that he had started developing skin problems, described as blood blisters several years after service. (The September 2010 examination report is more specific in that the Veteran reported the occurrence 10 years after service.) As such, by his own statements, which the Board finds credible, the Veteran did not have continuous manifestations of a chronic skin disorder while on active duty. The Board finds that a chronic skin disorder, now diagnosed as dyshidrosis eczema, is not shown to have been caused by any in-service event including defoliant exposure. The Veteran was afforded two VA examinations in connection with his appeal, in September 2010 and November 2012. On both examinations, the Veteran was diagnosed as having dyshidrosis eczema. Review of the regulations applicable to presumptions from exposure to herbicides do not include dyshidrosis eczema. In addition, the examiners were requested to render an opinion regarding whether the Veteran's current skin disability was related to the complaints of a skin disorder that he stated that he had during service. In September 2010, the examiner indicated that the Veteran's dyshidrosis eczema was not related to service as it was related to a genetic predisposition and the Veteran reported that his blisters and lesions had begun 10 years after service. On examination in November 2012, the examiner took the Veteran's history of having had "jungle rot" while on active duty, but stated that this was unrelated to the Veteran's dyshidrosis eczema, which was less likely than not related to service. The rationale provided was that the skin disorder developed, by the Veteran's admission, several years after military discharge and that this type of eczema seemed, according to the literature, to be related to genetics. As such, there is no basis for the establishment of service connection for dyshidrosis eczema as a result of service, including as related to defoliant exposure while he was on active duty. ORDER Service connection for a chronic skin disorder, including as a result of defoliant exposure, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs