Citation Nr: 1309663 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 09-03 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a skin disability, claimed as dermatitis, eczema, and onychomycosis, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran requested a Board hearing in his January 2009 substantive appeal. A hearing was scheduled for him in March 2011, but the Veteran asked that it be rescheduled. Another hearing was scheduled for May 2011, but the record reflects that the Veteran did not appear for that hearing. As he has not provided an explanation for his absence at the hearing, and has not requested an additional hearing, the Board finds that his hearing request is withdrawn, such that appellate adjudication may proceed. 38 C.F.R. § 20.704 (2012). The Veteran's appeal was most recently remanded by the Board in September 2012. In pertinent part, the Board directed that the RO obtain an addendum VA opinion as to whether it was at least as likely as not that the Veteran's various skin disabilities were related to his military service taking into account the Veteran's assertions that his skin disabilities existed since service. Such opinions were obtained in December 2012 and February 2013. Accordingly, the Board finds that there has been substantial compliance with the directives of the September 2012 remand in this case, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's service personnel records reflect that he had service in the Republic of Vietnam. 2. The Veteran's diagnosed dermatitis, eczema, and onychomycosis are not among the disabilities for which presumptive service connection for herbicide exposure may be warranted. 3. There is no evidence of a skin disorder in service or for approximately 9 years after service separation. 4. The evidence does not indicate that the Veteran's skin disorders began in service or are related to service, including based on exposure to herbicides. CONCLUSION OF LAW A skin disability, claimed as dermatitis, eczema, and onychomycosis, was not incurred in, or aggravated by, active military service, and may not be presumed to have been so incurred, to include as a result of exposure to herbicides. 38 U.S.C.A. §§ 1110, 1116, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.316 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by letter sent to the Veteran in August 2007. The letter advised the Veteran of the information necessary to substantiate his claim including herbicide exposure, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The letter also advised the Veteran of how disability ratings and effective dates are determined. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Here, the August 2007 notice letter predated the November 2007 rating decision. The content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The Veteran has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices. The Veteran was provided with a VA examination for the purposes of determining the etiology of his claimed skin disease in November 2011, and addendum opinions were obtained in December 2012 and February 2013. These VA opinions were adequate for rating purposes because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a review of the claims file, appropriate testing, and provided etiological opinions with a rationale. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence relevant to the issue adjudicated in this decision is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service connection In this case, the Veteran asserts that his diagnosed skin diseases, dermatitis, eczema, onychomycosis, and tinea pedis, are directly related to his military service, specifically to exposure to herbicides during his service in Vietnam. He has recently indicated that his skin disorders manifested shortly after his return from Vietnam and have existed since separation from service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, service connection may also be warranted 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). Under 38 C.F.R. § 3.303(b), with chronic disease shown as such in service (or within the presumptive period under 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. However, the Federal Circuit has held that § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). To establish service connection for a claimed disease, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The absence of any one element will result in the denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427 (2006). Additionally, governing law provides that 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 that service. 38 U.S.C.A. § 1116(f). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a) (6) (iii). 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) (2011) 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) (2011) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; hairy cell leukemia and other chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); Parkinson's disease; and ischemic heart disease. 38 C.F.R. § 3.309(e) (2012). Note 3 at the end of § 3.309 defines ischemic heart disease as not including hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke. The above reflects changes to the Code of Federal Regulations which changes included adding ischemic heart disease to the list of presumptive diseases became effective August 31, 2010. These changes are applicable to claims received by VA on or after August 31, 2010 and to claims pending before VA on that date. As the Veteran's claim was pending on August 31, 2010, the changes are applicable to the immediate case. 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 acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall 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) (ii) (2012). The record reflects that the Veteran had service in the Republic of Vietnam. Therefore, exposure to herbicides is established. 38 C.F.R. § 3.307(a) (6) (iii). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). It is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence. See Owens v. Brown, 7 Vet. App. 429 (1995). Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claims. If so, the claims are denied; if the evidence is in support of the claims or is in equal balance, the claims are allowed. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. Service treatment records, including the Veteran's April 1968 induction examination and March 1970 separation examination, are silent for any complaints, injuries, treatment or diagnoses of any skin disorders, other than shell fragment wounds of the right groin, left forearm, and left thigh, for which the Veteran is already service connected. Although the Veteran was treated for bilateral plantar warts in December 1968 and lesions on his penis in January 1970, there is no indication that these were chronic disorders which continued into the present, and they are unrelated to the skin rash for which the Veteran currently seeks service connection. Additionally, there is no evidence for many years after separation from service of any skin diseases. A July 1979 VA treatment record, 9 years following his separation from service, diagnosed the Veteran as having dermatitis on his right hand. Although the Veteran has more recently alleged in January 2009 that his skin disorders existed since his separation from service in 1970, at the time of his August 1996 claim for service connection, he indicated that he had suffered from a skin rash on his hands for only 4 to 5 years. By the Veteran's own admission, he did not suffer from a chronic skin condition until approximately 1991, 21 years following his separation from service. As noted above, the Veteran is presumed to have been exposed to herbicides in service. However, review of the record reveals that there are no treatment records or diagnoses of a skin disease of record either during service or for 9 years post service. Additionally, chloracne is the only skin disease for which service connection can be granted on a presumptive basis due to herbicide exposure. See 38 C.F.R. § 3.309 (f). Here, the Veteran's skin disabilities have been diagnosed as dermatitis, eczema, and onychomycosis. It has not been diagnosed as chloracne. Accordingly, service connection for a skin disease on a presumptive basis for herbicide exposure is not warranted. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards 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, 1040 (Fed. Cir. 1994). The United States Court of Appeals for Veterans Claims has specifically held that the provisions of Combee are applicable in cases involving herbicide exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). The Veteran was provided with a VA examination in November 2011, at which time the examiner opined that his skin disorders were less likely than not (less than a 50 percent probability) incurred in or caused by his period of active duty service. The examiner explained that the Veteran's service treatment records contained no reference to any skin or nail problems whatsoever, and that his diagnosed dyshidrotic eczema, tinea pedis, and onychomycosis were all very common conditions which did not seem to be related to herbicide exposure from 1968 to 1970. In a December 2012 addendum opinion, the examiner reiterated that it was less likely as not that the Veteran's skin disabilities were related to military service because the service treatment records did not document any of these problems, and the Veteran conceded in 1996 that he did not have chronic skin problems until 1991, 21 years following his separation from service. In February 2013, another VA physician reviewed the addendum opinion and opined that there was no indication that the Veteran's skin disabilities were due to herbicide exposure, as the only recognized skin condition related to herbicide exposure was chloracne, which the Veteran did not have. The Board has carefully reviewed and considered all the competent medical evidence of record in the appellant's claims file, which includes his service treatment records, to include induction and separation examinations. These are entirely silent for any complaints, treatments or diagnoses of a skin disease during service or during any presumptive period after service, with the exception of the shell fragment wounds for which the Veteran is already service connected. Likewise, the post service treatment records, including all VA as well as private medical records, are essentially silent for any complaints, treatment, or diagnoses of a skin disorder until dermatitis was diagnosed in 1979, approximately 9 years after the Veteran's discharge from military service. Moreover, none of the Veteran's skin disorders are recognized as chronic diseases under 38 C.F.R. § 3.309(a); as such, a continuity of symptomatology analysis under 38 C.F.R. § 3.303(b) is not applicable here. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). The only evidence of record affirmatively showing that the Veteran's skin disabilities were related to in-service exposure to herbicides is the Veteran's own statements. With regard to the Veteran's more recent statements in January 2009 indicating that his skin disorders existed since service, these are contradicted by his previous statements at the time of his August 1996 claim for service connection when he indicated that his skin disorders existed only since approximately 1991. They are also contradicted by the March 1970 service separation examination which found his skin to be within normal limits. The Board finds that the weight of the evidence demonstrates that the Veteran's current skin disorders were not incurred in service. While the Veteran served in Vietnam and is presumed to have been exposed to herbicides, service treatment records are silent for any complaints regarding a skin disease. The March 1970 separation examination was silent for medical history, or any complaints, injuries, treatment, or diagnosis of a skin disease. The record is silent for treatment or complaints for a skin condition until July 1979, approximately 9 years after the Veteran's discharge from military service. The Board acknowledges that the Veteran has been diagnosed with dermatitis, eczema, tinea pedis, and onychomycosis; however, the evidence does not show that an event, injury, or disease occurred in service. The evidence of record does not show that the Veteran was treated or diagnosed during or after service with a skin condition until treatment for dermatitis of the right hand in July 1979. There is no indication that the Veteran's skin disorders were directly related to the Veteran's service. Regarding the Veteran's contention that his skin disease claim is related to herbicide exposure, the record indicates that the Veteran was exposed to herbicides during service. However, as discussed above, chloracne is the only presumptive skin disease due to herbicide exposure. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The Board's analysis focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). In considering the lay and medical history as detailed above, the Board notes that the appellant is competent to give evidence about what he has experienced. See Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has held that in certain situations, lay evidence can even be sufficient with respect to establishing medical matters such as a diagnosis. Specifically, in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist 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. A skin disease is capable of lay observation; specific diagnoses such as dermatitis, eczema, onychomycosis, or tinea pedis are not capable of lay observation that would require medical expertise. However, to the extent that some symptoms may be so observable, the Veteran's endorsement of such symptomatology constitutes competent evidence. Nonetheless, while some symptoms are capable of lay observation, the cause of the Veteran's disorders is more complicated. Accordingly, the Veteran's statements averring to the etiology of his disorders are not competent. In sum, with regard to the Veteran's statements relating his skin disorders to Agent Orange exposure, the Board finds no evidence to support such statements beyond the Veteran's own belief that his disorders may have been the result of his presumed exposure to herbicides during service in Vietnam. Here, the most probative evidence establishes that there were remote, post service onsets of his current skin disorders that were unrelated to service. The diagnosis and etiology of skin disorders is something that requires medical expertise to determine and is not capable of lay observation. Cf. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In conclusion, the preponderance of the evidence is against the claim of entitlement to service connection for a skin disability as secondary to herbicide exposure during service. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim for service connection for a skin disorder. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a skin disability is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs