Citation Nr: 1310172	
Decision Date: 03/26/13    Archive Date: 04/02/13

DOCKET NO.  07-21 014	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to service connection for a skin disorder, to include as due to Agent Orange.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

James R. Siegel, Counsel

INTRODUCTION

The Veteran served on active duty from April 1968 to May 1970.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for a skin disability, to include as due to exposure to Agent Orange.  This case was previously before the Board in November 2010, at which time it was remanded for additional development of the record.  As the requested action has been accomplished, the case is again before the Board for appellate consideration.

The Board adjudicated the Veteran's claim for an increased rating for his service-connected low back disability in November 2010.  This decision, accordingly, is limited to the issue set forth on the preceding page.


FINDING OF FACT

Affording the Veteran the benefit of the doubt, his chloracne is related to service.


CONCLUSION OF LAW

Chloracne was incurred in active service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303(d) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance

VA has duties to notify and assist claimants in substantiating a claim 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).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

In light of the fully favorable finding with regard to the claim for service connection, no further discussion of compliance with the duties to notify and assist is warranted at this time.

Analysis 

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  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"-the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). 

Service connection may 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).  

If a Veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) 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; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; B cell leukemia, Parkinson's disease, multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina).  75 Fed. Reg. 53202 (August 31, 2010), 38 C.F.R. § 3.309(e). 

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 a veteran was exposed to an herbicide agent during active military, naval, or air service.  38 C.F.R. § 3.307(a)(6)(ii).

The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See 72 Fed. Reg. 32,395 (2007).  The United States Court of Appeals for the Federal Circuit has held, however, that a claimant is not precluded from establishing service connection with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  In other words, the fact that a veteran may not meet the requirements for service connection on a presumptive basis does not in and of itself preclude the establishment of service connection, as entitlement may alternatively be established on a nonpresumptive direct-incurrence basis.

The service treatment records disclose the Veteran was seen in June 1968 and complained of a red spot on his face, arms and chest.  He also reported severe itching.  It was indicated he might have rubella.

The Veteran was seen by a private physician in February 2002.  An examination demonstrated erythema in the groin and popliteal areas consistent with Candida.  It was stated he had been given a steroid cream in the past for this and it helped temporarily.  The assessment was recurrent groin and popliteal rash, probably yeast.  The examiner stated the Veteran sat for a long time in his truck and this probably was a contributing factor.

VA outpatient treatment records reveal the Veteran was seen in October 2003 and reported he had a chronic rash which he had been treated for a "fungal outbreak."  It was reported the Veteran questioned whether he had been exposed to Agent Orange as the dermatology presentation of his face, scrotum and posterior knees never really goes away.  An examination showed dermatitis in both popliteal areas.  No antecubital dermatitis was noted.  The assessment was popliteal dermatitis.  

On VA examination in October 2005, the Veteran asserted that he started to have blisters on the back of his head behind his ears and the back of his legs in the mid 1970's.  He claimed he was exposed to Agent Orange in Vietnam.  The diagnosis was chloracne.  

Pursuant to the Board remand, the Veteran was afforded a VA skin examination in October 2010.  He reported his skin condition started in 1969, immediately after his return from Vietnam.  He stated the condition was intermittent in nature.  An examination revealed the Veteran did not have any active lesions.  The examiner noted he reviewed the claims folder.  He noted that he observed a clinical photograph during an outbreak and said it showed numerous comedones on the hairlines of the scalp.  The diagnosis was chloracne.  The examiner concluded it was at least as likely as not that exposure to Agent Orange induced the skin lesions.  He pointed out that the lesions in the photograph are very consistent with chloracne, and noted the Veteran indicated the lesions occurred right after he came back from Vietnam.  

The Board acknowledges that the history reported by the Veteran during the December 2010 VA examination is not entirely consistent with the clinical record.  While he was seen for red spots in service, a clinical evaluation of the skin on a July 1970 VA examination was normal.  

Although the clinical record suggests the Veteran's skin problems were not present shortly after service, as he has indicated, he is competent to report his symptoms, and the examiner concluded his chloracne is related to his having been exposed to Agent Orange during service.  Thus, resolving reasonable doubt in the Veteran's favor, the Board finds service connection for chloracne on a direct basis, without regard to any statutory presumption, is warranted.  


ORDER

Service connection for chloracne is granted.



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs