Citation Nr: 1313587 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 06-19 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a skin disorder, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1963 to July 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In August 2009, the Board remanded the claim for additional development, and in October 2010, the Board denied the Veteran's claim. However, by a November 2012 decision, the Board vacated the October 2010 denial and remanded the claim again for additional development. The file has now been returned to the Board for further consideration. FINDING OF FACT Competent and credible evidence of record indicates that the Veteran's skin disorder, diagnosed most recently as acne, is not due to in-service herbicide exposure or any other incident of service. CONCLUSION OF LAW A skin disorder was not incurred in or aggravated by active service, nor may it be presumed to have incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1113, 1131 and 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The notice requirements were met in this case by letters sent to the Veteran in November 2004, prior to the initial unfavorable Agency of Original Jurisdiction (AOJ) decision, and March 2006. Those letters advised the Veteran of the information necessary to substantiate his claim, 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 March 2006 letter also explained how disability ratings and effective dates are determined. See Dingess/Hartman 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 AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. Id. The Board thus concludes that VA's duty to notify has been satisfied. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. The only private treatment records identified and authorized by the Veteran during the appellate period were identified in conjunction with the processing of a claim not on appeal. However, the Veteran did report that such records related to "all conditions." Such records, silent as to complaints, treatment, or diagnoses related to the claim on appeal, were associated with the claims file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. With regard to service connection claims, the United States Court of Appeals for Veterans Claims (Court) held in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In this case, the Board concluded an examination was required under McLendon and, therefore, remanded the claim in August 2009 to afford the Veteran an examination to support his claim. The VA scheduled the Veteran for an examination in December 2009, but the Veteran failed to appear despite ample notification being sent to his last known address. The Board thus denied the Veteran's claim in its October 2010 decision. However, the Board was not aware that the Veteran had requested a rescheduled VA examination and such was the basis for the November 2012 decision to vacate the October 2010 denial and remand the claim for additional development, specifically, a VA examination. Such examination was conducted in January 2013. In the circumstances of this case, additional efforts to assist or notify him in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duties to inform and assist the Veteran at every stage of this case. Therefore, the Board may proceed to consider the merits of the claim. Additionally, the Board finds there has been substantial compliance with its November 2012 remand directives. The Court has recently held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the AMC afforded the Veteran a VA examination in January 2013 and later issued a Supplemental Statement of the Case (SSOC) in February 2013. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2012). Service Connection Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). When a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. In order to establish service connection for a claimed disorder, the following must be shown: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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. See 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1131, 1133 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2012). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. See 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the present appeal, the Veteran's skin disorder, diagnosed during the appeal as a rash, contact dermatitis of the chest and arms, probable seborrheic dermatitis of the face and scalp, and acne, has not been diagnosed as a disability for which service connection may be granted on a presumptive basis. A "presumption" exists under the laws and regulations pertaining to Agent Orange exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6) and 3.309(e). That is, a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service. A Veteran is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962 and May 7, 1975 unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f). The only skin condition included on the list of diseases associated with Agent Orange exposure is chloracne. See 38 C.F.R. § 3.309(e). In this case, the Veteran's DD-214, his service separation form, indicates the Veteran served in the Navy during the applicable time frame and received the "Vietnam Service Medal," among other medals. After some inquiry, the VA could not confirm the Veteran actually set foot in Vietnam, but there is confirmation the Veteran served in the official waters of Vietnam for some time period during his military service. The Veteran maintains he was stationed aboard the USS Calvert, which anchored in Vietnam twice. He claims he personally went ashore to Da Nang on two occasions, to include watching a Bob Hope performance. In support of his claim, he submitted numerous articles and statements from fellow servicemen supporting his contention that the ship anchored in Vietnam twice and that most of the crew went ashore. There is also confirmation that Bob Hope indeed conducted a performance about the same time as the Veteran was in the official waters of Vietnam. The Board, in its August 2009 remand, considered the Veteran's testimony and other submitted evidence and conceded that the Veteran likely set foot in Vietnam and, therefore, was presumably exposed to Agent Orange. However, as will be discussed below, there is no evidence that the Veteran's skin disorder has been diagnosed as chloracne. As such, presumptive service connection based on exposure to herbicides is not warranted. While presumptive service connection is not warranted, the Veteran is not precluded from establishing service connection for his claimed disability with proof of actual direct causation from exposure from an herbicide agent or other link to service. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d 1372, 1376-77. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran claims he has recurrent rashes ever since service that he feels is related to herbicide exposure in Vietnam. In his February 2008 statement, he reported that he had a rash ever since he returned home from service in 1967. In his October 2008 statement, he reported that he had recurrent boils and sores that required lancing and drainage, every three to four months or more, and that he had dry scaling on the hands, back, neck, and arms. The Veteran's spouse, in a July 2010 statement, reported that the Veteran did not have a skin condition when she met him in 1964 and that since returning home from service in 1967, he had a red and oozing rash around his face, ears, and in his hair. She reported that she begged the Veteran to seek treatment some years later, and that the Veteran was prescribed ointment which was not successful and never went back for further treatment. She reported that the Veteran tried to treat his rashes with lye soap and special shampoo and short haircuts. She reported that the rash never went away completely. The Veteran's service treatment records indicate the Veteran was seen for a reported skin rash on one occasion in November 1964. No diagnosis was rendered at that time, and a notation was included indicating that he presented without evidence of a pruritic condition. His service treatment records are otherwise silent as to any complaints, treatments or diagnoses of a skin rash. The Veteran was also seen numerous times to remove warts found on his hands and fingers, treated with liquid nitrogen in August 1965, October 1965, January 1967 and June 1967, without diagnosis of a skin disorder related to a rash. The Veteran's July 1967 separation examination is silent as to any evidence of a chronic skin disorder. After service, the claims folder contains a significant amount of VA treatment records, but these records are scarce for complaints, treatment or diagnoses of a skin condition. In January 2003, the Veteran reported a rash of the arms and face, present for many months, improving with the use of special soap. He was diagnosed with a skin rash of unknown etiology. In August 2004, the Veteran was seen for complaints of a rash, present for several years, treated with special shampoo and soap. At that time, the Veteran complained of a burning rash of the right arm and chest. The VA physician diagnosed the Veteran with contact dermatitis on the chest and arm and probable seborrheic dermatitis on the face and scalp. The Veteran was also afforded an Agent Orange protocol examination in September 2004 where the examiner noted a diagnosis of a rash, but further noted that the condition of "chloracne or other acneform disease consistent with chloracne" was the only skin condition presumptively associated with Agent Orange exposure. The Veteran was not diagnosed with chloracne or other acneform disease at that time. On VA examination in January 2013, the Veteran reported that he had developed a rash during service and had such for years afterwards, until 2009. He reported a history of a rash and pustules across his upper back, back of the neck, and hairline. He reported that he "finally got rid of it" by using lye soap three times weekly, and that he had not had a problem since 2009. He reported that he was in Vietnam. The examiner provided a recitation of the Veteran's pertinent service treatment records, noting his superficial rash in November 1964, without diagnosis. He presented for physical examination without a skin condition. The examiner diagnosed the Veteran with acne and reported that such was superficial, without visual scarring or functional impact. He reported that it was difficult to diagnose the Veteran when he presented without a visible skin condition. He reported that a 42-year history of a skin disorder "stretches the imagination," but that such was more likely acne if it did last that long. He reported that there was no evidence of chloracne, and reasoned that such is a severe form of acne that does not go on for years or a lifetime; and if present, would have presented within weeks or months of exposure and cleared. He concluded that the Veteran's presentation and clinical course is thus not compatible with chloracne. He reported that there was no evidence of a skin disorder during service, or ongoing skin disorder since that time, and noted the Veteran's admission that his skin disorder had not recurred since 2009. He concluded that the Veteran's skin disorder, his acne, possibly, acne vulgaris; is less likely related to service and reasoned that such was more likely a common skin condition found in the general population. Here, the medical opinion by the VA examiner is credible because it is based on a thorough review of the file and available treatment records and the examiner offered a reasonable medical basis for his conclusions. Absent credible evidence to the contrary, the Board is not in a position to further question the results of this examination. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Veteran is competent to testify to skin problems, rashes, since service, and his spouse is competent to testify that she observed the same, and there is no evidence that the parties are not credible. Jandreau, 492 F.3d 1372, 1376-77; Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). However, the Board finds that they are not competent to diagnose the specific skin disorder of chloracne or relate such symptoms and complaints to service, including herbicide exposure, as such is a complex medical question. There is no evidence that the Veteran or his spouse have specific knowledge or skill in dermatology. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions); Kahana, 24 Vet. App. 428. To the extent that the Veteran and his spouse are competent and credible to report as to continuous symptoms from service to the present, as discussed above, the Veteran's skin disorder has not been diagnosed as a disability for which service connection may be granted on a presumptive basis and his claim is thus ineligible for such an analysis. Walker, 708 F.3d 1331. Therefore, the Board places greater probative weight on the objective medical findings, specifically, the January 2013 VA examiner's determination that the Veteran's skin disorder is less likely related to service, including herbicide exposure. The Board concludes service connection must be denied. As reflected by the discussion above, the preponderance of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim for service connection for a skin condition must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a skin disorder, to include as secondary to herbicide exposure, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs