Citation Nr: 1310184 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 09-26 459 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for aphthous stomatitis and chloracne to include as due to exposure to herbicides. 2. Entitlement to service connection for a skin disorder other than aphthous stomatitis and chloracne, to include as due to exposure to herbicides. 3. Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to February 1971. The Veteran served in Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan which denied the claims of service connection for a bilateral hearing loss disability and a skin disorder on the merits. Notwithstanding the RO's decision to adjudicate on the merits the previously denied claim of service connection for a skin disorder, the Board was nevertheless required to address the issue of reopening to determine whether new and material evidence had been submitted. In a March 2011 decision, the Board reopened that issue and remanded both service connection for a skin disorder as well as hearing loss. The issues of entitlement to service connection for a bilateral hearing loss disability and service connection for skin disorder other than aphthous stomatitis and chloracne, to include as due to exposure to herbicides, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Secretary of VA has specifically determined that there is a positive association between herbicide exposure and chloracne. 2. The Veteran served in Vietnam and is presumed to have been exposed to herbicides during his period of service. 3. The Veteran's chloracne is presumed due to his exposure to herbicides in Vietnam. 4. Aphthous stomatitis is attributable to service. CONCLUSIONS OF LAW 1. Chloracne may be presumed to be the result of herbicide exposure during active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2012). 2. Aphthous stomatitis was incurred in active service. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304. 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Veteran's claim is being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Service Connection Turning initially to the Veteran's assertion that he has a skin disorder which is due to inservice herbicides exposure, VA law and regulations provide that a chronic, tropical, or prisoner-of-war related disease, or a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 will be considered to have been incurred in or aggravated by service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than the ones listed in 38 C.F.R. § 3.309(a) will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116; 38 C.F.R. § 3.307(a). 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. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. If a veteran, who served in the Republic of Vietnam 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 U.S.C.A. § 1116, 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 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Hodgkin'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 sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), type II diabetes, and chronic lymphocytic leukemia. 38 C.F.R. § 3.309(e). On August 31, 2010, VA published a final rule amending 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents. 75 Fed. Reg. 53202. 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). For purposes of § 3.309, acute and subacute peripheral neuropathy means transient peripheral neuropathy which appears within weeks or months of exposure to herbicides and resolves within 2 years of date of onset. See 38 C.F.R. § 3.309(e) , Note 2. 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 Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449 (1996). In this case, the Board remanded the claim for a VA examination which was conducted in April 2011. At that time, the examiner diagnosed the Veteran with several skin disorders, including chloracne and aphthous stomatitis (canker sores). The examiner provided an opinion that the chloracne was service-related. In addition, the examiner noted that the Veteran had a history of aphthous stomatitis which were generally episodic and required no treatment. It was noted that the skin disorder tended to get worse when a smoker tried to stop smoking (the Veteran is a smoker). However, the examiner further indicated that the Veteran had a strong history of this skin disorder which began during service. The examiner further opined that it was likely that this disorder was also related to service. At the time of the examination in April 2011, the Veteran did not have any canker sores that were present. In sum, the Board finds that the Veteran has chloracne which is presumed due to his exposure to herbicides in Vietnam. Thus, service connection is warranted for that disorder. With regard to aphthous stomatitis, that skin disorder is not subject to presumptive service connection. Otherwise, service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Once evidence is determined to be competent, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value. See Layno (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("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) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases 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). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims ("the Court") similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. The service treatment records reflect treatment for a skin disorder consistent with aphthous stomatitis, as confirmed by the April 2011 VA examiner. The Veteran reported a recurrent history of the skin disorder and the examiner noted that there was a strong history of this diagnosis. The examiner further noted its episodic nature. The Board is mindful of the guidance of the Court regarding the active and inactive stages pertaining to skin disorders. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994). With that being noted, the Board finds that there is both competent and credible lay evidence that the Veteran has recurrent aphthous stomatitis which began during service, and which is supported by the April 2011 VA examination report. Due to the documented episodic nature of this disability, the Board finds that the fact that it was not in an active stage when the Veteran was examined not to be dispositive as to its existence. Rather, overall, the evidence establishes that the Veteran has had this skin disorder since service, and which began therein, and which occurs intermittently. Accordingly, service connection for aphthous stomatitis is warranted. ORDER Service connection for chloracne is granted. Service connection for aphthous stomatitis is granted. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims that the Veteran is afforded every possible consideration. On examination in April 2011, the examiner noted the presence of several skin disorders, including tinea versicolor, seborrheic dermatitis, actinic skin damage, hand dermatitis, and benign nevi./scarring. The examiner indicated that the Veteran's tinea versicolor was "probably" service related. With regard to seborrheic dermatitis, actinic skin damage, hand dermatitis, and benign nevi/scarring, the examiner stated that these skin problems lacked a history of being related to service unless one accepted the Veteran's claim that their onset was within one year of service (although none are presumptive disorders). In other words, the examiner suggests that if the Veteran is credible in his account of when he began having the skin disorders, then they are service related. However, the examiner then seemed to suggest that the skin disorders were not related to service, but also said that the rating board might disagree. Overall, the examiner's opinion with regard to these skin disorder was, at best, equivocal and somewhat confusing as to the claimed skin conditions. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). A medical opinion is considered 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. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). To be adequate, a medical opinion must do more than state a conclusion that the etiology of a medical condition, for example, is unknown or unknowable, the conclusion must be supported with sufficient rationale and explanation. Stefl, 21 Vet. App. At 124. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In light of the foregoing, the Board finds that a medical addendum should be obtained by the April 2011 VA examiner, or another qualified VA examiner, regarding the etiology of the diagnosed skin disorders. The examiner should resolve if they are related to service. The examiner should make reference to the medical notations by Dr. R.R. in February 1977 that the Veteran had dermatitis since service, from Dr. J.S.C. in September 2008 that Agent Orange can cause a skin rash, and from Dr. N.S. in November 2008 that Agent Orange can cause a skin rash. The examiner should also consider the Veteran's lay reports of having had skin problems since service. With regard to hearing loss, the Veteran's representative contends that a new VA examination is necessary to determine if current hearing loss is related to service. The representative noted that VA directives indicate that the Veteran's military occupational specialty in an artillery unit acknowledged that he was likely subjected to noise exposure. Further, the representative pointed to the Veteran's contentions that while his VA entrance examination reflected that he had an ear deformity and some hearing loss (but not hearing loss per 38 C.F.R. § 3.385), but the discharge examination failed to note any ear deformity and simply listed zeros for all Hertz frequencies. The Veteran asserted that this showed that his discharge examination was incomplete. VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded. Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the United States Court of Appeals for Veterans Claims has jurisdiction by virtue of a notice of disagreement that satisfies VJRA § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof). This includes the duty to address arguments a Veteran has specifically made as it relates to the adequacy of any given VA examination. The Board further notes that a medical professional, Dr. N.S., indicated that Agent Orange exposure can cause deafness. However, adequate rationale was not provided. Similarly, while, a September 2009 VA examination report indicated that the Veteran's hearing loss was not related to service, the rationale for that conclusion was based on the Veteran's normal hearing at separation. However, the lack of noted hearing loss at separation is not an absolute bar or preclusion to granting service connection for any later diagnosed hearing loss. The Court has held that, even though disabling hearing loss may not be demonstrated at time of separation from service, a Veteran may nevertheless establish his entitlement to service connection for a current hearing loss disability by having evidence that the current disability is related to his military service and not the result of intercurrent or other unrelated factors or causes. See Hensley v. Brown, 5 Vet. App. at 155 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Due to the complexities with regard to the Veteran's hearing loss, in light of the Veteran's contentions, and due to the inadequacies of the medical opinions, the Board finds that the Veteran should be afforded a new VA audiological evaluation to determine the exact nature of the hearing loss of each ear, and whether such hearing loss is related to service or was present within the first year of service. Accordingly, the case is REMANDED for the following action: 1. Obtain a medical addendum from the examiner who performed the April 2011 skin examination or from another qualified examiner. The examiner should review the record and provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current skin disorder, including tinea versicolor, seborrheic dermatitis, actinic skin damage, hand dermatitis, and benign nevi./scarring, had their clinical onset during service or is related to any in-service disease, event, or injury, including presumed herbicide exposure. The examiner should make reference to the medical notations by Dr. R.R. in February 1977 that the Veteran had dermatitis since service, from Dr. J.S.C. in September 2008 that Agent Orange can cause a skin rash, and from Dr. N.S. in November 2008 that Agent Orange can cause a skin rash. The examiner should also consider the Veteran's lay reports of having had skin problems since service. The examiner is requested, if possible, to provide a definitive opinion. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 2. Schedule the Veteran for a VA audiological examination. The record must be made available to the examiner and the examiner should indicate in his/her report whether or not the record was reviewed. Any indicated tests should be accomplished. The examiner should obtain the Veteran's auditory thresholds at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, as well as speech recognition scores based on the Maryland CNC tests. The examiner should opine as to whether it is more likely than not, less likely than not, or at least as likely as not, that current hearing loss of either ear is related to service or was manifest within one year of service. The examiner should address the inservice STRs and indicate if the discharge examination was incomplete, per the Veteran's contention that the examiner failed to note a physical ear deformity that was noted on entrance and because the Hertz frequencies were all listed as "zero." The examiner should comment on Dr. N.S.'s statement that Agent Orange exposure can cause deafness as well as the September 2009 VA examiner's opinion. The examiner should note that the lack of hearing loss at discharge does not preclude a finding that later diagnosed hearing loss is service-related. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 3. The AMC should review the medical opinions obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, AMC should return the case to the examiner for completion of the inquiry. 4. The AMC should then readjudicate the claims on appeal in light of all of the evidence of record. If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs