Citation Nr: 1312235 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 08-29 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a skin disorder, to include as due to in-service exposure to herbicides. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. This current matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A hearing was held before the undersigned Veterans Law Judge sitting at the RO in May 2011. A copy of the hearing transcript has been associated with the file. In September 2011 and again in December 2012, the Board remanded the Veteran's claim for service connection for a skin disorder to the RO, through the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development. See Stegall v. West, 11 Vet. App. 268 (1998). In February 2013, the Veteran's appeal was returned to the Board for further appellate review. FINDING OF FACT A skin disorder did not have its onset during active service, and it is not causally related to such service, to include in-service exposure to herbicides. CONCLUSION OF LAW A skin disorder was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). In this regard, the Board notes that proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran was notified by a January 2007 letter of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. A February 2007 letter informed him of evidentiary requirements specific to claims based on exposure to herbicides. These pre-decisional letters, thus, addressed all notice elements. No further notice is required. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of private treatment and examination. The Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claim on appeal. VA has provided the Veteran with an examination in October 2011 to determine the nature and etiology of his disability. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). As the October 2011 examination report was incomplete, the Board requested another examination and opinion. The January 2013 examination was thorough and adequate upon which to base a decision of this claim. That examiner personally interviewed and examined the Veteran, elicited relevant history from the Veteran, and provided the information necessary to decide the claim. The examiner's opinion is adequate, as it was based on a full reading of the private and VA medical records in the claims file, the Veteran's own statements, and the results of the physical examination. In the remand portion of the December 2012 decision, the Board requested that the RO/AMC obtain any outstanding records of VA treatment and schedule the Veteran for an examination to determine the etiology of his skin disorder. In February 2013 the AMC obtained additional VA treatment records and, as noted above, in January 2013 afforded the Veteran an examination, the report of which is substantially responsive to the Board's request. See Dyment v. West, 13 Vet. App. 141 (1999). Given the above, no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). 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) (2012). The disorder at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2012). Thus, 38 C.F.R. § 3.303(b) (2012) does not apply. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection requires competent evidence of (1) a current disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In this case, the Veteran contends that he has a skin disorder due to exposure to Agent Orange in service. He describes the disorder as a severe rash that appears on his face, arms, legs, and feet and that causes boils. Initially, the Board observes that the Veteran served in the Republic of Vietnam during the Vietnam Era. Therefore, his in-service exposure to herbicide agents in service may be presumed. However, the Veteran has not been diagnosed with a skin disorder recognized by VA as associated with exposure to certain herbicide agents. See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e) (2012). Thus, service connection is not warranted on a presumptive basis. Notwithstanding the presumptive provisions, service connection may be established by showing that a disorder resulting in disability is, in fact, causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155 (1997); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's service treatment records are absent any complaints of, or treatment for, a skin disorder. During his July 1969 discharge examination he denied having a history of skin diseases or boils. Examination revealed normal skin. Post-service VA medical records show that the Veteran had an appointment with the dermatology clinic in February 1985 but failed to show. In January 2002, he complained of a two-month history of an ulcer on his left heel and was found to have a hypertrophic area of skin over the left Achilles. In July 2002, he complained of a lesion on the back of his left ankle and had areas of hyperkeratosis on the back of his legs. In January 2004, he complained of a history of a rash over the back and legs for "years," had excoriations and scaling with hyperpigmented patches on the back and similar hyperpigmented patches on the legs, and was diagnosed with lichen simplex chronicus. Subsequent treatment notes show continuing complaints of skin problems and diagnoses of folliculitis with cellulitis, stasis dermatitis, and seborrheic dermatitis. Lastly, a May 2006 dermatology clinic note shows a history of boils on the buttocks, trunk, and legs for four years and a rash on his legs and face for eight years. At the May 2011 hearing before the undersigned Veterans Law Judge, the Veteran testified that his skin condition had begun in 1998. Given the above, the Board finds that the Veteran's current skin disorder did not have its onset during his active service. There is no mention of skin problems in the service treatment records, and the first indication of any is the February 1985 appointment with the VA dermatology clinic for which he failed to show. There are no further complaints until January 2002 and no diagnosis of a skin disorder until January 2004. The Veteran has also testified that his skin condition began after service in 1998. Thus, the question remains as to whether the Veteran's skin disorder is otherwise causally related to his active service, to include his conceded in-service exposure to herbicides. At the May 2011 hearing, the Veteran testified that a nurse had told him to inform a physician that the skin problem could be related to herbicide exposure. However, the nurse's statement is not of record, and the Veteran denied having been told by a physician that his skin problem was or could be related to herbicide exposure. The Veteran's account of what a medical professional purportedly said is simply too attenuated and inherently unreliable to constitute medical evidence. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Furthermore, even if the Board were to accept that the nurse had opined that the skin disorder "could" be due to herbicides, the opinion as related is too speculative to support a claim for service connection. Morris v. West, 13 Vet. App. 94, 97 (1999); Bloom v. West, 12 Vet. App. 185, 186-87 (1999). The Veteran was afforded a VA examination in October 2011. The examiner noted the Veteran's past diagnoses of stasis dermatitis in 1998 and furunculosis (boils) in 2002. After physically examining the Veteran, the examiner provided a diagnosis of stasis dermatitis. The examiner opined that the Veteran's skin disorder was not incurred in or caused by service. The examiner noted that no diagnosis of a skin condition was made in service, specifically acknowledging that the Veteran denied having skin diseases and boils at his discharge examination and that no dermatological diagnoses were made by the examining physician. The October 2011 examiner also noted that the Veteran does not have any skin conditions that are presumptively linked to Agent Orange. In the remand portion of the December 2012 decision, the Board noted that the October 2011 VA examiner did not provide an opinion as to whether any of the Veteran's current skin disorders could be related to the conceded in-service exposure to herbicides. Thus, the Veteran was afforded a new examination in January 2013. The examiner noted the Veteran's belief that the skin infections and rash he had on his ankles in 1998 were related to Agent Orange exposure. The examiner noted the Veteran's history of a rash on the right forearm after discharge from service that was never medically evaluated as well as the fact that the first time he really sought help was with the VA in 2004. The examiner noted the Veteran's denial of ever being diagnosed with chloracne or porphyria cutanea tarda. After physically examining the Veteran, the examiner indicated that the Veteran's skin disorder is consistent with eczema. The examiner also noted that the Veteran did not have a rash during service, specifically acknowledging that the Veteran denied having a rash or skin condition during his separation examination and that the examining physician did not record any skin conditions on examination. The January 2013 VA examiner noted that the Veteran has never been diagnosed with, nor does he currently show any signs of, skin conditions on the presumptive Agent Orange list. The examiner stated that the Veteran has been diagnosed with a few skin disorders but that they did not manifest themselves in a meaningful manner until after 2004, 35 years after service in Vietnam. The examiner also stated that the past infectious skin disorders were due to bacterial exposure and that the other skin disorders are due to allergic or hypersensitive reactions to acute or ongoing exposures as opposed to a distant herbicide exposure that did not manifest itself clinically until 35 years later. For these reasons, the examiner concluded that the Veteran's skin disorders are not due to herbicide exposure in Vietnam. Given the above, the Board finds that the Veteran's skin disorder is not causally related to active service, to include exposure to herbicides. Two VA examiners have opined that the Veteran's skin disorders are not related to service. The second examiner specifically ruled out herbicide exposure as a cause of the Veteran's skin disorders. The Board finds these opinions to be of great probative value as they were based on examination of the Veteran and his documented medical history. See Hayes v. Brown, 5 Vet. App. 60 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190 (1992)). Moreover, they are the only competent medical opinions of record. The Board notes that the Veteran is competent to give evidence about observable symptoms such as a rash. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also notes that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the Veteran has dated the onset of symptoms to after his separation from service, and the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, he is not competent to address etiology. As discussed above, the medical evidence shows that his skin disorder is not related to service, to include his conceded in-service exposure to herbicides. Accordingly, based on this evidentiary posture, the Board concludes that service connection for a skin disorder, to include as due to in-service exposure to herbicides, is not warranted. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a skin disorder, to include as due to in-service exposure to herbicides, is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs