Citation Nr: 1314795 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 08-03 372A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a skin disorder, claimed as skin rashes, to include as due to Agent Orange. REPRESENTATION Appellant represented by: David L. Huffman, Attorney ATTORNEY FOR THE BOARD C. D. Simpson INTRODUCTION The Veteran had active service from January 1967 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, denying the claim currently on appeal. The Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge in June 2010. A hearing transcript is of record. This claim was previously remanded by the Board in September 2010 and July 2012 for further evidentiary development. A review of the Virtual VA paperless claims processing system shows that VA treatment records from November 2010 through January 2013 are of record. The RO considered these updated VA treatment records in the March 2012 and January 2013 Supplemental Statements of the Case. FINDING OF FACT The Veteran has not been demonstrated to have a skin disorder incurred or aggravated by any incident of active service, to include herbicide exposure CONCLUSION OF LAW The criteria for the establishment of service connection for a skin disorder are not met. 38 U.S.C.A. §§ 1110, 1116, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and 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) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record indicates that the Veteran was provided with adequate VCAA notice in October 2006 prior to initial adjudication. Specifically, the RO notified the Veteran of information and evidence necessary to substantiate his service connection claim, including degree of disability and assignment of an effective date. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. The duty to notify has been met. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records, VA treatment records, and private medical records have been obtained, in addition to various written statements by the Veteran himself. At the hearing, the Veteran referred to VAMC Clarksburg treatment records as a possible place where he had past treatment. However, his statements as to the date and nature of treatment are vague. He has not otherwise mentioned prior dermatological treatment at Clarksburg VAMC. Overall, his vague statements are insufficient to identify the records, and a remand to obtain these potential records is not necessary. The Veteran was afforded an adequate VA examination in January 2013. Barr v. Nicholson, 21 Vet. App. 303 (2007). Although the examiner misstated the Veteran's history of dermatological treatment, her overall opinion was that his post service occupation was the likely etiology for his current skin disorders. As explained below, the Veteran denied having skin disease at separation, but reported treatment shortly thereafter. Limited medical records are available concerning his post service dermatological treatment history. Overall, the January 2013 VA examiner's rationale is plausible, consistent with the Veteran's occupational history, and uncontroverted by any additional medical evidence. For these reasons, her initial misstatement of the Veteran's treatment history does not render the general basis of her opinion, which favored a post service occupational environment etiology, inadequate. The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2012) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam); See also 77 Fed. Reg. 23128-01 (April 18, 2012). At the June 2010 hearing, the undersigned identified the issue on appeal. The Veteran provided testimony as to all treatment received for his claimed skin rash and, thereby, demonstrated actual knowledge of the ability to submit additional relevant evidence. In September 2010 and July 2012, the Board remanded the claim to further assist the Veteran by furnishing a VA examination. The duties imposed by Bryant were thereby met. The Board also finds that the record reflects substantial compliance with the instructions in the September 2010 and July 2012 Board Remands. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The evidence includes an updated January 2013 VA dermatology examination with medical opinion that is adequate for adjudication purposes, and issuance of a January 2013 supplemental statement of case. The Board is satisfied that there was substantial compliance with its remand orders. Id.; see Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). There is no indication that there is any relevant evidence outstanding for this claim, and the Board will proceed with consideration of the Veteran's appeal. Laws and regulations 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, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of 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); 38 C.F.R. § 3.303. For chronic disabilities listed under 38 C.F.R. § 3.309(a), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). However, the claimed skin rashes are not considered a chronic disability within the purview of 38 C.F.R. § 3.309(a) and the alternative method for establishing service connection through continuity of symptomatology is not applicable. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Although a claimant is competent in certain situations to identify a simple condition such as a fall leading to a broken leg, a lay person is generally not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (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")). 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. See 38 U.S.C.A. § 1116(f) (West 2002), 38 C.F.R. § 3.307(a)(6) (iii) (2012). The record shows that the Veteran had service during the requisite period in Vietnam, and he is presumed to have been exposed to herbicide in service. See DD 214. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain listed diseases shall be service connected. However, they do not include the currently diagnosed tinea manuum and tinea pedis. See 38 U.S.C.A. § 1116 (West 2002), 38 C.F.R. § 3.309(e), Note 2 (2012). Regardless of whether a claimed disability is recognized under 38 U.S.C.A. § 1116, pertaining to herbicide agent exposure presumptive diseases, a Veteran is not precluded from presenting evidence that a claimed disability was due to or the result of herbicide exposure. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Evidence Personnel records show that the Veteran served in the Republic of Vietnam from December 1967 to December 1968 and was a light vehicle driver. Service treatment records do not show any complaints or findings of a rash. On his Report of Medical History for separation, the Veteran denied having or ever having "skin disease." Contemporaneous clinical examination showed that his skin was normal. Private medical records from 1989 reflect that the Veteran sought medical attention for a rash on his leg and hand. The notes are limited, but he appears to describe a rash on his right leg and left hand. He reported that the rash on his hand burned a lot due to an unspecified solvent. Clinical examination showed a scaly area through his left hand with early nail involvement of the fourth finger. His right lower leg had dry, cracked, endurated skin with some discoloration. For the right leg, an assessment of chronic venous insufficiency secondary to unspecified trauma was given. The rash of the hand was assessed as tinea manuum. An entry approximately a month later shows that the leg rash improved, but his hand remained the same. In his September 2006 claim, the Veteran stated that he had direct contact with Agent Orange in Vietnam. It happened when he rested his arm outside the rolled down window of a moving truck. Unexpectedly, a low flying aircraft sprayed Agent Orange over the area which consequently hit his arm. Private dermatology records from January 2007 reflect treatment for chemical exposure rash on his left hand. A specimen from his left hand was put under microscopic examination. Following examination, the examiner diagnosed lichen simplex chronicus. He further explained that he favored an assessment of irritant contact dermatitis with secondary features of lichen simplex chronicus. In February 2007, a member of the Veteran's unit, D.J., submitted a statement. He recalled that he and the Veteran had significant Agent Orange exposure. Statements were also submitted from the Veteran's wife, father, brother, and co-worker variously attesting to the Veteran's skin problems and reports of Agent Orange exposure. The Veteran had a hearing in June 2010. He recounted his recollection of Agent Orange exposure while driving a convoy vehicle in Vietnam. He had direct exposure to his arm and then to his forehead when he wiped it with his exposed hand. He was not treated for a rash in service and explained that he was more concerned about malaria treatment at that time. He recalled having private treatment in 1970; however, the records were unavailable. The Veteran was afforded a November 2010 VA dermatology examination. He reported having herbicide exposure during service. In the early 1970s, he developed dry scaly areas on both upper extremities. They were constant and worsened by sun exposure. He had some dermatological treatment, but could not remember the precise diagnosis or medications for treatment. He had urticaria. Clinical examination showed his right forearm and left elbow, forearm, and hand had rashes. No acne or chloracne was observed. The examiner diagnosed dermatitis. She commented that the rash was consistent with eczema. VA treatment records, dated in January 2010, reflect that the Veteran had a dermatology consultation. He was assessed as having tinea manuum, tinea pedis, and onychomycosis. VA treatment records from January 2011 show that the Veteran's tinea manuum and tinea pedis had improved with topical medication. The examiner noted that the Veteran was a mechanic and had occasional fissures on his hands. Clinical examination of the arms showed occasional fissures and slight dry scaling. Feet were significant for dystrophic nails and scaling on soles. The Veteran underwent another VA examination in January 2013. He complained about dry, scaly areas on both upper extremities since the early 1970s. They were constant and worsened by sun exposure. He recently had dermatology consultations and the medication improved symptoms, but did not completely resolve them. He also reported having uticaria within the past twelve months. Clinical examination showed dermatitis affecting between 5 and 20 percent of the total body area. The Veteran again was not found to have chloracne. The examiner expressed a negative opinion. She stated that the record does not reflect chronic progressive complaints of skin disorders and that the Veteran's occupation as a mechanic would be associated with his skin problems. She cited a medical study explaining the causes of tinea pedis. In an addendum opinion issued within the same month, the examiner observed that the Veteran had not regularly sought treatment for his subjective claims of dry, scaly skin. Hence, the medical records did not show a continuation of disease process from service. She explained that the Veteran's occupation as a mechanic would contribute as it would necessitate significant amounts of time in a moist, sweaty environment. She also observed that he had similar complaints about his forehead while he wore a hat, which is consistent with sweat and moisture as environmental causes. She stated that such fungal conditions thrive in warm, moist areas. Because the Veteran has not presented his condition in a chronic, progressive pattern, she believed his skin disorder was most likely related to his occupational environment as opposed to Agent Orange exposure. Analysis The Veteran did not have any complaints or treatment for a skin disorder during service. He has provided a detailed narrative about how he was exposed to Agent Orange. In any event, he served in Vietnam within the requisite time period to be entitled to a presumption of Agent Orange exposure as a matter of law. See DD 214; 38 C.F.R. § 3.307(a)(6). An in-service event of Agent Orange exposure has been established. At the VA examination and dermatology consultations, the Veteran has been diagnosed with dermatitis of both upper extremities. Related diagnoses of tinea manuum, tinea pedis, and onychomycosis have also been given. The threshold for showing a current disability is met. The remaining issue is whether the current skin disorder has a nexus to in-service Agent Orange exposure. The Veteran is competent to describe his dermatological symptoms. See Layno, 6 Vet. App. at 469; see Jandreau, 492 F.3d at 1377. However, determining whether his current skin disorders are related to Agent Orange exposure approximately 40 years ago is a complex medical question. He is not shown to be a medical professional and is not competent to express an opinion on such an issue. See Woehlaert, 21 Vet. App. 456; see also Waters, 601 F.3d 1274. Thus, his assertions are not competent evidence to show a nexus to service and in this regard, have no probative value. Id.; see Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. The competent medical evidence of a nexus is limited to the January 2013 VA examiner's negative opinion. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). (Briefly, the Board notes the November 2010 VA examiner expressed a negative opinion. However, this opinion is not adequate for adjudication purposes and will not be considered). The January 2013 medical opinion is plausible, consistent with his occupational history, and uncontroverted by any additional medical opinion. The Board considers the January 2013 VA medical opinion to be probative and weigh against the claim. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). In other words, the preponderance of the evidence is against finding a nexus to service, including presumed Agent Orange exposure. For the reasons stated above, a nexus has not been demonstrated. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Service connection for a skin rash is not warranted. ORDER Service connection for a skin rash is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs