Citation Nr: 1312658 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 09-08 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for skin cancer, including as secondary to herbicide exposure. Entitlement to service connection for chloracne. Entitlement to service connection for acne vulgaris. Entitlement to a compensable rating for service-connected temporomandibular joint disorder with loss of teeth #7 and #10. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to April 1970 and received the Purple Heart and Combat Action Ribbon. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the claim. In April 2010 and February 2012, the Board remanded the case to the RO for additional evidentiary development. As discussed in more detail below, the Board finds there was substantial compliance with its remand orders and that it may therefore proceed with a determination of the issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). The RO continued the denial of the claim as reflected in the February 2013 supplemental statement of the case (SSOC) and returned this matter to the Board for further appellate consideration. The Board's prior remands addressed the Veteran's claims for service connection for a skin condition, claimed as folliculitis, to include as secondary to herbicide exposure and service connection for a dental condition, to include loss of teeth #7 and #10 with temporomandibular joint disorder (TMJ). These claims were granted in May 2011 and October 2012 rating decisions, respectively. Also, it appears the Veteran submitted a Notice of Disagreement in February 2013, contesting the October 2012 rating decision which assigned a noncompensable rating for his service-connected temporomandibular joint disorder with loss of teeth #7 and #10. No Statement of the Case has been issued; therefore the Board directs that the RO issue one, as directed below, in accordance with 38 C.F.R. §§ 19.26 , 19.29 (2012) and Manlincon v. West, 12 Vet. App. 238 (1999). Thus, the Board accepts limited jurisdiction over this issue, for the sole purpose of remanding to order issuance of a Statement of the Case along with information about the process for perfecting an appeal, if the Veteran so desires. FINDINGS OF FACT 1. The Veteran had active service in the Republic of Vietnam during the time that exposure to herbicides is presumed. 2. At no time during the appeal period did the Veteran have a diagnosis of skin cancer. 3. The Veteran's chloracne has been shown by competent evidence to be related to his in-service herbicide exposure. 4. The Veteran's acne vulgaris has been shown by competent evidence to be causally related to his service-connected folliculitis. CONCLUSIONS OF LAW 1. The criteria for service connection for skin cancer, to include as secondary to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for chloracne have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 3. With consideration of the doctrine of reasonable doubt, the criteria for service connection for acne vulgaris, to include as secondary to service-connected folliculitis, have been met. 38 U.S.C.A. §§ 1110, 1116, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Compliance with Prior Board Remands The Board observes that this case was previously remanded in April 2010 and February 2012. The purpose of the April 2010 remand was to obtain a VA examination to determine if the Veteran's skin disorders are linked to his active duty. The examiner was instructed to provide an etiology opinion for all diagnosed skin conditions. A VA skin examination was conducted in July 2010 with an addendum opinion in August 2011. However, the examiners did not provide an opinion as to whether the Veteran's skin conditions were the result of his active duty military service. Thus, in February 2012, the case was remanded by the Board in order to obtain an adequate medical opinion. The record documents that a VA medical opinion was provided in March 2012 with an addendum in January 2013. These VA examinations and medical opinions are adequate. See 38 C.F.R. § 3.159(c)(4). It appears there was substantial compliance with the prior remand orders and the Board may continue with its determination. Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. VA's Duties to Notify and Assist The 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). See also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Appropriate notice was provided in a March 2008 letter. As for the duty to assist, the Veteran's VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO has made several attempts to obtain copies of the Veteran's service treatment records (STRs). While all available STRs were obtained, some STRs appear to be unavailable. In a September 2011 memorandum, the RO noted that several attempts had been made to obtain records from the 249th Army General Hospital in Japan but that these attempts had been unsuccessful. As such, the Board finds that any further search for the these records would be futile. The Board notes that in a case where STRs are unavailable, VA has a heightened obligation to explain its findings and conclusions, and to consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran has not claimed to be in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). He has provided relevant private medical treatment records. The Veteran has not identified any additional relevant medical records that have not been obtained and associated with his file. Two VA examinations and four VA medical opinions have been secured in connection with the current claim for service connection. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008). The Veteran's June 2007 and July 2010 examinations and March 2012 and January 2013 VA opinions are sufficient, as they provide explanations for the opinions stated as well as the medical information necessary to reach a decision. VA's duty to assist with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c)(4). A review of the Virtual VA paperless claims processing system reveals additional photographs of the rash on the Veteran's face, scalp, ears and neck. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. III. Service Connection The Veteran contends he has several skin conditions that are related to his military service, specifically his exposure to herbicides during service. See, e.g., Notice of Disagreement, May 2008. Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of an injury or disease; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (1995). Pursuant to 38 C.F.R. § 3.303(b), when a chronic condition is present, a claimant may establish the second and third elements by demonstrating continuity of symptomatology. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the nexus between in-service herbicide exposure and subsequent skin conditions, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, medical evidence will be required to establish a medical diagnosis of the Veteran's current skin conditions and to address the question of whether his in-service herbicide exposure caused his skin conditions. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. 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 analysis below 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, 128 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to a veteran). The Veteran's available STRs show that in November 1967, the Veteran self-reported no history of skin diseases and his service entrance examination noted his skin was normal. See Report of Medical History and Report of Medical Examination, November 1967. In December 1968, the Veteran was seen by doctors for a pustular eruption on his back that had been present off and on for four months. The impression was folliculitis. In January 1969, it was noted that the Veteran received a follow-up appointment for his folliculitis. On the Veteran's April 1970 separation examination, his skin was found to be normal; however, there was a note on the examination stating the Veteran had a "history of generalized skin rash." See Report of Medical Examination, April 1970. The Veteran claims that while serving in Vietnam, he went on many reconnaissance missions in jungles that had been sprayed with herbicides, specifically Agent Orange. See Veteran's Letter, September 2010. During one of his missions, the Veteran stated that he leaned against a tree for support and when he pulled away from the tree he noticed a tacky substance stuck to his uniform. See Statement in Support of Claim, January 2007. Afterwards, he experienced an extreme skin rash, particularly on his back. Id. The Veteran claims he has suffered from these skin rashes since service, although the breakouts are generally only two to three times per year now. Id. The Veteran's wife submitted a statement that the Veteran's skin rash has persisted since she first met him in 1969. See Veteran's Wife's Affidavit, September 2010. The Veteran experiences three to four episodes of skin rash outbursts per year on his upper back. Id. Additionally, the Veteran currently experiences chronic rashing on his head and neck. Id. The Veteran submitted a statement from the owner of a hair and skin salon who has performed derma ultrasound treatments on his back, head and neck for over a year. See Statement of B.M., June 2007. She states that she has seen severe inflammatory outbreaks from the base of the Veteran's neck to the crown of his head. Id. The Veteran claims that in September 2005, Dr. D.M. surgically removed basel cell carcinoma (BCC) from his right eyebrow. See Veteran's Letters, May 2007 and January 2013. According to post-service medical records, in October 2005, the Veteran was diagnosed with suspicious lesions- BCC. See Dr. J.M.M., October 2005. However, in September 2006, the same doctor noted the Veteran's skin to be normal. Id., September 2006. In June 2006, the Veteran's dermatologist found that a biopsy from his left eyebrow was not malignant. See Dermatopathology Report, Dr. T.M.K., June 2006. Additionally, there were several notes that there was no evidence of recurrent BCC or squamous cell carcinoma (SCC). See Lakeland Dermatology, June and September 2006. The dermatologist diagnosed the Veteran with actinic keratosis, benign nevus, rosacea, folliculitis-scalp, seborrheic keratosis-chest and back, cysts-back and seborrheic dermatitis-scalp. Id. and April 2007. The Veteran was provided a VA skin examination in June 2007. He reported a history of eczema since the early 1970s and an intermittent neck heat rash that appears like acne. The examiner found the Veteran had oily skin, his back had obvious open pores and he had several mild non-inflammatory open and closed comedones on his neck. The examiner also found superficial acne or chloracne on the Veteran's neck. The diagnosis was acne vulgaris on the Veteran's neck only. In December 2007, the Veteran was provided with an addendum opinion to his June 2007 VA examination. The doctor stated that it was less likely as not that his acne vulgaris on his neck is related to the folliculitis treated during service as there was no mention of acne vulgaris or related symptoms on the Veteran's neck during military service and there were no further follow-up appointments for the Veteran's folliculitis past January 1969. In March 2009, a Tampa VAMC doctor noted a suspicion for BCC on the Veteran's right temple and referred him to a dermatologist for an evaluation. See Primary Care E & M Note, March 2009. There are no records in the file showing the Veteran received follow-up treatment from a dermatologist for this issue. The Veteran underwent a second VA skin examination in July 2010. The Veteran stated that his skin condition began in 1968 while stationed in Vietnam and that the rash occurs as pustular lesions across his back, shoulders and scalp. Upon physical examination, numerous small follicular, pustular lesions were found across the Veteran's upper shoulders, posterior neck and scalp area. The Veteran was diagnosed with chronic folliculitis. The examiner reviewed the Veteran's STRs and opined that his chronic folliculitis is as least as likely as not caused by or a result of the same condition shown during service. The examiner's rationale was that the STRs documented a diagnosis of folliculitis with lesions similar to those found on the current examination. Additionally, private and VAMC records show diagnosis and treatment for chronic folliculitis involving the neck and scalp. In August 2011, a VA medical opinion was obtained pursuant to the Board's April 2011 remand. The VA doctor found the Veteran has documented diagnosis of rosacea, eczema, seborrheic keratosis and folliculitis. The doctor opined that the Veteran's claimed conditions of skin cancer, rashes and tumors, to include as secondary to herbicide exposure, were not permanently aggravated by his service-connected dermatitis or service-connected folliculitis. The rationale provided was that the medical literature does not recognize any causal relationship between chronic folliculitis and aggravation of the Veteran's skin conditions of record (rosacea, eczema and seborrheic keratosis). Additionally, the examiner indicated that the only VA recognized skin condition associated with Agent Orange exposure is chloracne and the Veteran has not been diagnosed with chloracne. As a result of the Board's February 2012 remand, VA medical opinions were obtained in March 2012 and January 2013 from the same VA doctor. The opinions state the Veteran has been diagnosed with various skin conditions, including seborrheic keratosis, cysts, folliculitis, actinic keratosis, rosacea, non-malignant nodular solar elastosis of the left eyebrow, acne vulgaris and chloracne. The VA doctor found the Veteran's acne vulgaris is at least as likely as not due to service. The rationale provided was that the Veteran's acne vulgaris is at least as likely as not related to his service-connected folliculitis. Both skin conditions are common disorders of the pilosebaceous units, which consist of sebaceous glands and their associated inflammation of the hair follicles on the skin so they may present similar symptoms at times. Additionally, the doctor opined that the Veteran's chloracne, which has been diagnosed and treated by the Tampa VAMC, is at least as likely as not due to service. The basis for this opinion is that chloracne is a presumptive skin disorder secondary to Agent Orange exposure and the doctor found the Veteran had service in Vietnam. Skin Cancer Service connection may not be granted without competent medical evidence of a current disability. Shedden, 381 F.3d at 1167. Based on a review of the evidence, the Board finds that service connection for skin cancer is not warranted as there is no evidence in the record that the Veteran was diagnosed with skin cancer during the appeal period. While the record indicates that the Veteran was treated for BCC in approximately 2005, the Veteran filed the current claim for skin cancer in May 2007 and there are no medical records since that date documenting a current diagnosis of skin cancer or disabling residuals thereof. The Board has viewed a close up photograph of the area of the right eyebrow where BCC was removed, but finds no evidence of any disfigurement. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim including evidence of a current diagnosis of skin cancer. However, such evidence has not been presented. See 38 U.S.C.A. § 5107(a) (it is the claimant's responsibility to support a claim for VA benefits); see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, for the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for skin cancer. The benefit-of-the-doubt rule does not apply, and the benefit sought on appeal is accordingly denied. See 38 U.S.C.A §5107(b). Chloracne The Veteran claims that his chloracne was caused as a result of his exposure to herbicides during his service in Vietnam. The 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) . Regulations provide that if a Veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for the following disorders: ischemic heart disease, Parkinson's disease, B cell leukemia, chloracne or other acneform disease consistent with chloracne; Type 2 diabetes mellitus (also known as Type II diabetes mellitus or adult-onset diabetes), 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); and, soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 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 the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Board notes initially that the Veteran served in Vietnam. As there is no affirmative evidence of non-exposure, he is presumed to have been exposed to herbicides during service. 38 U.S.C.A. § 1116(f). However, as his chloracne was not demonstrated by medical evidence until 2012, it is not shown that chloracne was manifested 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 in Vietnam so as warrant service connection on a presumptive basis. 38 C.F.R. § 3.307(a)(6)(ii). Nonetheless, service connection for the Veteran's chloracne may be granted without benefit of the presumption if the evidence shows that the chloracne is due to exposure to Agent Orange during service or is otherwise related to service. McCartt v. West, 12 Vet. App. 164, 167 (1999); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The record contains a medical opinion from a VA doctor who prior to rendering the opinion reviewed the Veteran's claims file, including his STRs and June 2007 and July 2010 VA skin examinations. See VA Medical Opinion, March 2012 and January 2013. The VA doctor found that the Veteran has been diagnosed and treated for chloracne by the Tampa VAMC. The doctor opined that as the Veteran served in Vietnam, his chloracne is at least as likely as not due to service. Unless the preponderance of the evidence is against the Veteran's claim, it cannot be denied. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 53-56. As the record reveals no medical opinion refuting that set forth above, it cannot reasonably be said that the preponderance of the evidence is against the Veteran's claim. Therefore, the Board finds the claim for service connection for chloracne should be granted. Combee, 34 F.3d at 1044. Acne Vulgaris The Veteran contends that he is suffering from acne vulgaris, which he claims is related to herbicide exposure during service. During the Veteran's June 2007 VA skin examination, the examiner found the Veteran had acne vulgaris and VAMC records show a diagnosis of acne vulgaris since May 2007. Therefore, a current disability exists. With regard to the claim for direct service connection, there is no evidence of an in-service incurrence or aggravation of acne vulgaris. While the Veteran's STRs show findings of folliculitis and a generalized rash, there is no diagnosis for acne vulgaris. Therefore, acne vulgaris was not shown to have been incurred in-service and the Veteran's claim for direct service connection for acne vulgaris, including as due to herbicide exposure, must fail. See Shedden, 381 F.3d at 1167. However, service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service-connection on a secondary basis requires evidence sufficient to show that: (1) a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) reconciling Leopoldo v. Brown, 4 Vet. App. 216 (1993). The record contains a positive nexus opinion from a VA doctor that states the Veteran's acne vulgaris is at least as likely as not due to service. See VA Medical Opinion, January 2013. The rationale provided was that the Veteran's acne vulgaris is at least as likely as not related to his service-connected folliculitis. The doctor explained that both skin conditions are common disorders of the pilosebaceous units, which consist of sebaceous glands and their associated inflammation of the hair follicles on the skin so they may present similar symptoms at times. The Board acknowledges that the record contains a negative December 2007 VA medical nexus opinion, wherein the doctor stated it was less likely as not that the Veteran's acne vulgaris was related to the folliculitis treated during service as there was no mention of acne vulgaris or related symptoms during his military service and there was only one follow-up appointments for the Veteran's folliculitis. This opinion was provided prior to the Veteran receiving service-connection for his folliculitis. Based on the foregoing, the Board finds that the record consists of two probative medical opinions, one weighing against and the other weighing in favor of the Veteran's claim. Where, as here, the probative medical evidence is in relative equipoise, the veteran is entitled to the benefit of the doubt. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Indeed, this is especially true in a case, such as such as this, in which a portion of the Veteran's STRs are missing. O'Hare, 1 Vet. App. at 367. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board concludes that service connection for the Veteran's acne vulgaris, as secondary to his service-connected folliculitis, is warranted. The Veteran's claims for service connection for skin disorders are granted to this extent only. The Board notes that there is no favorable opinion to support service connection for any other skin disorder such as rosacea, cysts, seborrheic keratosis, actinic keratosis or solar elastosis. On the contrary, the VA examiner in March 2012 indicated that they were not related to service. ORDER Entitlement to service connection for skin cancer, including as secondary to herbicide exposure, is denied. Entitlement to service connection for chloracne is granted. Entitlement to service connection for acne vulgaris is granted. REMAND Regarding the request for a compensable rating for service-connected temporomandibular joint disorder with loss of teeth #7 and #10, to date, the Veteran has not been provided a Statement of the Case or given an opportunity to perfect the appeal of this additional claim to the Board by also filing a timely Substantive Appeal (VA Form 9 or equivalent statement). Therefore, the Board must remand this claim, rather than merely referring it. A Statement of the Case must be issued and the Veteran given an opportunity to perfect the appeal of this claim to the Board. See Manlincon, 12 Vet. App. at 238 . Accordingly, the case is REMANDED for the following action: The RO/AMC should furnish the Veteran with a Statement of the Case pertaining to the issue of entitlement to a compensable rating for service-connected temporomandibular joint disorder with loss of teeth #7 and #10. This claim will not be returned to the Board unless the Veteran perfects an appeal by filing a timely substantive appeal. The appellant has the right to submit additional evidence and argument on the 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 Supp. 2011). ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs