Citation Nr: 1307735 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 10-13 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a skin condition on the face and scalp, to include as due to exposure to herbicides. 2. Entitlement to service connection for a skin condition on the bilateral arms, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran had active service from August 1968 to August 1985, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in April 2012. A transcript of the hearing has been associated with the Veteran's Virtual VA file. The issues of entitlement to an increased disability rating for diabetes mellitus Type II, peripheral neuropathy of the right lower extremity and left lower extremity, bilateral hearing loss and tinnitus, and entitlement to service connection for erectile dysfunction, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are] referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, a skin condition of the face and scalp was incurred in service. 2. Resolving all doubt in the Veteran's favor, a skin condition of the bilateral arms was incurred in service. CONCLUSIONS OF LAW 1. The Veteran's current skin disability of the face and scalp was incurred in active duty military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). 2. The Veteran's current skin disability of the bilateral arms was incurred in active duty military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In the instant case, since the veteran's claim is being granted, any deficiencies with regard to VCAA are harmless and nonprejudicial and VCAA analysis is not required. Legal Criteria and Analysis In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97; see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). A veteran who, during active military, naval, or air 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 the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). If so, the veteran is thereby entitled to a presumption of service connection for certain disorders listed under 38 C.F.R. § 3.309(e). These diseases are AL amyloidosis; chloracne; type II diabetes; Hodgkin's disease; ischemic heart disease, all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease, acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2012). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). The Court has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In essence, the Veteran contends that he has a current skin disability of the face and scalp, and the bilateral arms that had its onset in, or is otherwise related to his active duty service, to include his presumed exposure to herbicides during his service in Vietnam. As noted above, in order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. See Shedden v. Principi, 381 F.3d at 1167. VA outpatient treatment records show that the Veteran has been diagnosed with actinic keratoses of the face and scalp, and eczema of the hands, dermatitis, a rash, xerosis, and seborrheic keratosis of the arms. Element (1), current disability, is therefore satisfied. With respect to element (2), in-service disease or injury, the Board will separately discuss in-service disease and injury. The Board notes that the service treatment records are not available for review as it appears that the RO misplaced all of the available service treatment records. However, the Veteran testified at a videoconference hearing of December 2012 that while in service, he had problems with his skin in the form of rashes for which he was treated. The Veteran is competent to report symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Board had the opportunity to observe the Veteran at the hearing and finds his testimony to be credible. Therefore, the Board will accept the Veteran's reports of skin problems in service. Concerning in-service injury, the claimed injury is exposure to herbicides in Vietnam. The Veteran's DD-214 confirms that he served in the Republic of Vietnam during the Vietnam era. It is therefore presumed that the Veteran was exposed to Agent Orange while in Vietnam, in the absence of affirmative evidence to the contrary. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2012). In addition, the Board notes that the Veteran has asserted that his skin disability resulted from in-service exposure to the sun. In this regard, the Board notes the Veteran testified that while in Vietnam, he was exposed to sun on a consistent basis as he served as an infantryman and was exposed to the sun while patrolling. As noted above, the Board has found the Veteran's testimony to be credible. Moreover, his DD-214 confirm his assertion of serving as an Infantryman. The Board finds that the circumstances of the Veteran's service as an Infantryman during combat operations in Vietnam were such that would have likely required service outdoors and prolonged exposure to sunlight. VA must therefore explore the matter of sun exposure in addition to Agent Orange exposure as a factor in the development of his current skin disability. Cf. Douglas v. Derwinski, 2 Vet. App. 103, 109 (1992) [VA is obligated to consider all issues reasonably inferred from the evidence of record]. Therefore, based on the evidence noted immediately above, the Board finds that element (2) has arguably been met with respect to in-service injury. Moving on to crucial element (3), nexus or relationship, the Board notes that the Veteran has not been diagnosed with a presumptive Agent Orange-related disease as defined by the regulations. Thus, a medical nexus between service and his skin disabilities may not be established via the statutory presumption. See 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309(e) (2012). Notwithstanding the inapplicability of the Agent Orange presumption regulations, the Board is obligated to fully consider the Veteran's claim. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). The question presented in this case, i.e. the relationship, if any, between the Veteran's skin disabilities and his military service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). There is a single medical opinion of record. In a November 2011 letter, the Veteran's primary care manager at the VA, Dr. K. W. E., stated that the Veteran was his patient and he had seen him multiple times over the years. He stated the Veteran had several diagnosis of skin conditions including actinic keratosis, seborrheic keratosis, eczema, and xerosis cutis. He noted the Veteran served in Vietnam as an infantryman and as a result, was exposed to herbicides which have been associated with multiple medical problems to include skin disorders. He further noted the Veteran had no skin problems prior to service but had multiple skin problems after his deployment to Vietnam. He opined that the Veteran's service, specifically his service in Vietnam, predisposed/contributed to his skin/medical problems. There is no evidence of record that contradicts this opinion. Although it is clear that the Veteran's skin disabilities cannot be presumed to have been caused by exposure to herbicides, a medical expert who is the Veteran's primary physician, has attributed the current disabilities to his service in Vietnam, including exposure to herbicides. Accordingly, and resolving all doubt in the Veteran's favor, the Board finds that a relationship is established between the Veteran's current skin disabilities of the face and scalp, and the bilateral arms and his military service. As such, element (3), and thus all elements, have been met. The benefit sought on appeal is granted. ORDER Service connection for a skin disability of the face and scalp is granted. Service connection for a skin disability of the bilateral arms is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs