Citation Nr: 1314917 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 05-35 926 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a skin disorder, to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active service from August 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The case was most recently before the Board in May 2011. By a decision issued on May 9, 2011, the Board denied entitlement to service connection for a skin disorder. On its own motion, and as detailed in the decision below, the Board will vacate the May 9, 2011, decision and address the merits of the case de novo. The Board notes that the Veteran submitted additional evidence in May 2011 and requested that the case be remanded to the RO for consideration of the new evidence. In view of the favorable decision below, the Board finds that a remand is not necessary in this case. See 38 C.F.R. § 20.1304(c) (2012). As discussed below, the Veteran is presumed to have been exposed to herbicide agents such as Agent Orange. The record also reflects that he was status post-myocardial infarction in January 1976 and recent treatment records show a problem history of coronary artery disease. Therefore, the issue of entitlement to service connection for ischemic heart disease on a presumptive basis as a disease associated with exposure to certain herbicide agents is reasonably raised by the record. As this issue has not been developed for appellate review, it is referred to the agency of original jurisdiction for appropriate action. FINDINGS OF FACT 1. After the Board issued a decision on May 9, 2011, but prior to the expiration of a 60-day period in which the Veteran could submit additional evidence, the Board received additional evidence from the Veteran in the form of a May 2011 private medical opinion letter. 2. The Veteran served in a unit during the requisite period that the Department of Defense has determined operated in or near the Korean Demilitarized Zone in an area in which herbicides are known to have been applied. 3. The Veteran has dermatomyositis that is at least as likely as not related to his exposure to herbicide agents during active military service. CONCLUSIONS OF LAW 1. The Veteran was denied due process by the issuance of the May 9, 2011, Board decision; vacatur of the May 9, 2011, decision in the above captioned appeal is warranted. 38 U.S.C.A. §§ 7104, 7109 (West 2002); 38 C.F.R. §§ 20.903, 20.904 (2012). 2. Dermatomyositis was incurred in active military service. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Vacatur The Board may vacate an appellate decision at any time upon request of the appellant or his representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2012). As noted in the introduction, on May 9, 2011, the Board issued a decision whereby it denied entitlement to service connection for a skin disorder. Prior to the decision, in February 2011, the Board requested an expert medical opinion from the Veterans Health Administration (VHA). See 38 C.F.R. § 20.901 (2012). After the VHA opinion was received, the Board sent the Veteran a letter, dated April 14, 2011, informing him that he had 60 days in which to submit any additional evidence or argument. See 38 C.F.R. § 20.903 (2012) (notification of evidence to be considered by the Board and opportunity for response). Shortly after the Board issued the decision, but prior to the expiration of a 60-day period, the Veteran submitted additional evidence in the form of a May 2011 private medical opinion letter. Because the Veteran submitted additional evidence in a timely manner and that evidence was not considered by the Board in the May 9, 2011, decision, the Board finds that the Veteran was denied due process. Accordingly, the Board's May 9, 2011, decision should be vacated on these grounds. See 38 C.F.R. § 20.904(a). The Board will therefore address the claim de novo. Furthermore, the Board notes that the Veteran both appealed the May 9, 2011, Board decision to the United States Court of Appeals for Veterans Claims (Court) and submitted a motion for reconsideration of the decision directly to the Board. By a July 2012 Order, the Court dismissed the case on account of the pending motion for reconsideration because the Board decision was not final. See Rosler v. Derwinski, 1 Vet. App. 241 (1991). Along these lines, given that the Board has vacated the May 9, 2011, decision, the Veteran's motion to reconsider is rendered moot as there is no final Board decision to reconsider. See 38 C.F.R. § 20.1000 (2012). II. Analysis As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this decision, the Board grants service connection for dermatomyositis. This award represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). The Veteran contends that he has a skin disorder that is related to service, to include as due to Agent Orange exposure in Korea while serving along the Demilitarized Zone (DMZ). He alleges that he has had a skin disorder ever since he was in Korea, but that it was not properly diagnosed until 1976. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) (2012) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.309(e) (2012). In this context, the term "herbicide agent" is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). 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, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). During the pendency of the appeal, the location of where veterans are presumed to have been exposed to herbicide agents was expanded by amendment to the regulations. A veteran who, during active military, naval or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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 C.F.R. § 3.307(a)(6)(iv). 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). The Veteran's service treatment records indicate that he was treated for skin problems on occasions during service. A December 1967 treatment entry noted that the Veteran was seen for a rash on the arms and body, as well as possibly athlete's foot. He reported that he had a one month history of a rash on the right arm and upper inner thighs. The examiner noted that the Veteran had a very slight macular, papular, rash over the thighs. The impression was deferred. A January 1968 entry noted that the Veteran complained of a swollen rash between the legs. It was noted that he also had an infected abrasion of the right 5th knuckle. No diagnoses were provided. An April 1968 separation examination report included a notation that the Veteran's skin and lymphatics were normal. A chronic skin disorder was not diagnosed during the Veteran's period of service. In addition, the Veteran's service records do not expressly show that he was exposed to herbicides during active military service. However, his personnel records document service in Korea from February 1967 to May 1968. Thus, at least some of his Korean service overlaps the time period when herbicide agents were used in or near the DMZ. Notably, his personnel records also document that he was assigned to Company A, 2nd Battalion, 9th Infantry during when he was stationed in Korea. The Department of Defense has determined that the 2nd Battalion, 9th Infantry operated in or near the Korean Demilitarized Zone during the requisite time period. Accordingly, as there is no affirmative evidence to the contrary, the Board presumes that the Veteran was exposed to herbicide agents during his active military service. See 38 C.F.R. § 3.307(a)(6)(iv). The earliest post-service evidence of record of any possible skin disorder is dated in July 1976. A July 1976 VA hospital summary indicated that the Veteran was admitted in January 1976 with problems of weakness and pain of all extremities and a rash on the face of one week's duration. The diagnoses were dermatomyositis and status post myocardial infarction. Subsequent post-service private and VA treatment records show treatment for disorders, including skin disorders such as dermatomyositis. A May 2004 statement from J. D'Angelo, M.D., noted that the Veteran was seen with muscular pain in his legs, shoulders, and arms. Dr. D'Angelo reported that the condition was carefully assessed and that, previously, the Veteran had been diagnosed as having a condition that strongly resembled dermatomyositis. Dr. D'Angelo stated that after careful consideration and evaluation, the Veteran appeared to have a service-related injury and "it [was] as likely as not that the condition may have been caused by exposure to Agent Orange." An August 2004 statement from Dr. D'Angelo reported that the Veteran continued to have pain radiating down his right side. Dr. Angelo stated that the Veteran's associated chronic asthma, which was directly related to his exposure to Agent Orange, and the dermatomyositis, which occurred shortly after his exposure, were all contributing causes to the Veteran's condition. A September 2004 VA orthopedic examination report noted that the Veteran's records for review included his claims folder. The Veteran reported that he served as a sergeant in the infantry in the Army in Korean from 1967 to 1968. He stated that he was in the DMZ and that he had exposure to direct spraying of Agent Orange around the time of the Pueblo incident. It was noted that the Veteran currently had medical conditions of a myocardial infarction in 1976 and dermatomyositis diagnosed in 1976. As to diagnoses, the examiner indicated that for joint and muscle (apparently pain), the diagnosis was dermatomyositis, also referred to as peripheral neuritis. The examiner referred to a medical treatise. The examiner commented that according to the Veteran's claims file, in 1976, he had a muscle biopsy, which showed myositis and vasculitis as well as a macular papular rash on his chest. It was noted that the Veteran was diagnosed as having both dermatomyositis and an inferior lateral wall myocardial infarction at that time. The examiner indicated that it was of note that the Veteran had a macular papular rash on his arms in December 1967 that was similar and which recurred nine years later and likely represented the form thrust of dermatomyositis. The examiner also listed separate diagnoses of dermatomyositis with myalgia, arthralgia, and dyspnea. The examiner discussed several medical treatises. The examiner indicated that the Veteran was first symptomatic for such disorder during service and that "it [was] as likely as not that his dermatomyositis [was] due both to a genetic predisposition and to environmental toxin exposure." A July 2005 handwritten statement from a VA physician indicated that the Veteran had a macular, papular, rash in November 1967 and that such pattern was not consistent with morphea which was the precursor skin lesion characteristic of dermatomyositis. A December 2005 VA treatment entry noted that the Veteran had an old history of dermatomyositis/peripheral neuritis diagnosed twenty years earlier. The assessment was dermatomyositis, flare. December 2006 and March 2007 entries related impressions that included dermatomyositis with no current weakness or rash. A November 2007 statement from Dr. D'Angelo reported that the Veteran had been under his care for an extended period of time with the earliest periods of examination in the early 1990s. Dr. D'Angelo stated that during that time, the Veteran had been treated for dermatomyositis and problems related to that condition and with steroids as needed. It was noted that, periodically, the Veteran did develop a rash and he reported that he was treated at a VA hospital with steroid cream. The Veteran reported that the rash developed over his face and neck and that it responded to the cream only to reoccur at a later time. Dr. D'Angelo stated that the Veteran's history included being involved in the Korean War where Agent Orange had been sprayed directly over the area where he was stationed. Dr. D'Angelo stated that since that time, the Veteran had been treated repeatedly for respiratory problems that developed shortly after his exposure. Dr. D'Angelo commented that "the dermatomyositis, in [his] opinion may have been caused by [that] exposure." A November 2008 VA skin diseases examination report noted that the Veteran's claims file was reviewed. As to a history of the present illness, the examiner reported that the Veteran apparently indicated that the onset of the skin disorder started in service and that the course of the skin disorder was intermittent. It was noted that the Veteran was taking Prednisone everyday for his bronchial asthma. The examiner indicated that the Veteran, at present, did not have any skin lotion or any skin ointment. The examiner stated that the Veteran had not had any skin treatment for the previous twelve months and that the percentage of the exposed area affected was zero percent. The examiner reported that the percentage of the Veteran's entire body that was affected by a skin disorder was also zero percent. The examiner indicated that the Veteran had no scarring, disfigurement, or acne. The examiner commented that the Veteran's claims folder had been reviewed and that the November 2007 statement from his local medical doctor had been noted. The examiner stated that the Veteran described facial skin rashes intermittently, but that the examination showed no visible rashes on his face, extremities, or on his trunk. The examiner indicated that there was no currently diagnosed skin disorder and that there was no etiological relationship to the Veteran's period of service. The examiner stated that "it [was] less likely as not that the Veteran's skin disorder [was] etiologically related to the Veteran's period of service, including the skin problem during service." A May 2010 statement from Dr. D'Angelo indicated that the Veteran was examined with a chief complaint of recurrent, intermittent type, pain in the muscles of his things, calves, and upper extremities. Dr. D'Angelo stated that there was a rash visible on the physical examination of both of the Veteran's lower extremities. Dr. D'Angelo indicated that the Veteran "[understood] that his present complaints were directly related to his well known exposure to Agent Orange while he was in the Armed Forces on the Korean front and [the Veteran] [felt] that the persistent complaints that he [continued] to experience [were] directly related to [that] exposure." A June 2010 VA skin diseases examination report noted that the Veteran's complete claims file was reviewed. The examiner discussed the Veteran's medical history in some detail. The examiner indicated that after the Veteran was discharged from service, he began to have symptoms of dermatomyositis. The examiner stated that dermatomyositis was a muscle disease with the characteristic of a violet colored rash usually on the face, eyelids, arms, extremities, chest, and back. It was noted that as time went by, the violet color would go away and it became a dusty red rash, which was currently present on the Veteran. The examiner remarked that the Veteran had a letter from Dr. D'Angelo which reported that the Veteran had such a rash, that he had treated the rash and his joint pain, and that he had prescribed Celebrex. The examiner indicated that the Veteran's dermatomyositis had been constant and progressive. The examiner stated that physicians first made the diagnosis of dermatomyositis in 1976, when a muscle biopsy showed dermatomyositis. The diagnosis was dermatomyositis with a characteristic dusty red rash, which the Veteran had all over his body. In a July 2010 addendum to the June 2010 skin diseases examination report, the examiner commented that he "[could not] resolve the issue without resort to mere speculation." An April 2011 VHA opinion was provided by a dermatologist. The physician noted that the Veteran's claims file was reviewed and that he did not personally examine the Veteran. The physician discussed the Veteran's medical history in some detail. The physician indicated that dermatomyositis was a disease of the immune system that was typically characterized by inflammatory myositis and skin disease, although there could be the absence of either myositis or the skin disease. It was noted that weakness of the proximal muscle groups was characteristic of dermatomyositis and that the cause of the condition was not know. The physician indicated that frequently dermatomyositis began with redness and swelling of the face and eyelids and that the eyelid involvement might be characterized by a pinkish-violet discoloration called a heliotrope. It was noted that photosensitivity was common and that on the hands, blood vessels often became prominent in the proximal nail folds. The physician reported that a pink to purple scaling eruption often occurred over the knees, elbows, and knuckles and was referred to as Gottron's sign. The physician stated that a firm swelling might be seen over the shoulders, arms, and neck and was known as the Shawl sign. The physician indicated that calcium deposits in the skin and muscles would occur frequently in children and less frequently in adults. The physician remarked that muscle weakness might occur early and cause swelling and pain. It was noted that the muscle weakness was seen symmetrically most frequently involving the shoulder girdle and sometimes the pelvic region, as well as the hands in adults. The physician reported that malignancy was often associated with dermatomyositis. The physician commented that he felt that "it [was] unlikely as not, that any diagnosed skin disorders, including dermatomyositis, [were] etiologically related to the Veteran's period of service, including any skin problems noted during service." The examiner indicated that the VA Health Registry did not include dermatomyositis as being a service-connected health condition related to Agent Orange. The examiner stated that he felt "it [was] unlikely that any diagnosed skin disorders, including dermatomyositis, [were] related to any possible Agent Orange exposure that the Veteran had in Korea." The examiner noted that Dr. D'Angelo stated in May 2004 that previously the Veteran had been diagnosed as having a condition that strongly resembled dermatomyositis and that after careful consideration and evaluation, the Veteran appeared to have a service related injury it was as likely as not that the condition may have been caused by exposure to Agent Orange. The physician remarked that he was in disagreement with Dr. D'Angelo and that he felt "it [was] unlikely as not that the Veteran's dermatomyositis was related to any aspect of [his] period of service or to any Agent Orange exposure." Dr. D'Angelo provided another medical opinion letter, dated in May 2011. Dr. D'Angelo noted that the VHA opinion was reviewed, that the Veteran had been his patient since September 1998, and that the dermatomyositis had recurred on many occasions. Dr. D'Angelo stated that the Veteran was a healthy individual prior to his Korean army obligations and he was exposed to a substance called Agent Orange which, to the best of Dr. D'Angelo's knowledge, is no longer used due to its extremely noxious effects, which have never fully been documented. Dr. D'Angelo noted that, while the VHA opinion did not find a link, it has not been fully documented in literature, but this does not mean that it is not occurring in the Veteran. According to Dr. D'Angelo, the evidence strongly points to the fact that something extremely serious happened to the Veteran as a young man when he was exposed while being in Korea to this noxious substance. Based on multiple examinations, Dr. D'Angelo felt that there is some responsibility that should be assumed. Dr. D'Angelo concluded that Agent Orange is no longer receiving intensive studies because it is not in wide use and it would be impossible at this time to assume that it did not cause a problem rather than to say it did cause a problem. Therefore, it was Dr. D'Angelo's opinion that the Veteran should be afforded the benefits as he served with honor in our government's military operations and he should be given every possible consideration. The Board notes that dermatomyositis is not one of the presumptive diseases associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). Therefore, service connection is not warranted on a presumptive basis. However, as noted previously, service connection may still be shown on a direct basis. See Combee, 34 F.3d at 1044-45; McCartt, 12 Vet. App. at 167. In evaluating the probative value of competent medical evidence, the Court has stated that "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . ." Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As stated by the Court, the determination of credibility is the province of the Board. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). During the course of much of the development of the claim, the competent medical opinion evidence regarding the nature and etiology of the Veteran's claimed skin disorder has been equivocal. For instance, the November 2008 VA examiner determined that there was not even a currently diagnosed skin disorder. However, the greater weight of the medical evidence shows that the Veteran currently has a skin disorder, characterized as dermatomyositis, even if the disability waxes and wanes over time. As to the origin of the Veteran's dermatomyositis, Dr. D'Angelo initially stated that "it [was] as likely as not that the condition may have been caused by exposure to Agent Orange." The use of the word "may" is reflective of a somewhat speculative opinion. The September 2004 VA examiner thought that the Veteran's skin problems during service were the same as those that recurred in 1976 and that "it [was] as likely as not that his dermatomyositis [was] due both to a genetic predisposition and to environmental toxin exposure." This is opinion is supportive of the Veteran's claim although it raises the possibility of a genetic cause. In any case, in July 2005, a VA physician thought that the in-service skin problems were not a precursor to the post-service problems. Moreover, in the July 2010 addendum, the June 2010 VA examiner "[could not] resolve the issue without resort to mere speculation." This statement is indicative that the medical question of etiology cannot be answered. A portion of the April 2011 VHA report can be read as an opinion against the claim. The VA physician felt that it was unlikely that any diagnosed skin disorders, including dermatomyositis, are related to any possible Agent Orange exposure that the Veteran had in Korea. However, the VA physician twice opined that "it is [as] unlikely as not" that the Veteran's dermatomyositis is related to his service. When interpreted in the light most favorable to the Veteran, this phrasing indicates that there is at least a 50 percent probability that exposure to Agent Orange is responsible for the Veteran's dermatomyositis. In a similar manner, Dr. D'Angelo, in the May 2011 letter, indicated that it is impossible to assume that exposure to Agent Orange did not cause the Veteran's skin problems rather than to say it did cause the problems. Essentially, Dr. D'Angelo's opinion also stands for the proposition that there is at least a 50 percent probability that exposure to Agent Orange is responsible for the Veteran's dermatomyositis. In the Veteran's case, the competent medical opinion evidence is not unequivocal. There is evidence both for and against the claim. However, Dr. D'Angelo's most recent opinion letter is consistent, in part, with the VHA opinion, and the opinion from the September 2004 VA examiner. When read collectively, at the least, a reasonable doubt is raised as to whether the Veteran's dermatomyositis is attributable to his presumed exposure to herbicide agents and the skin problems that manifested during service. When resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran has dermatomyositis that is at least as likely as not related to his exposure to herbicide agents during active military service. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). In view of this finding, the Board concludes that service connection is warranted for dermatomyositis. ORDER The May 9, 2011, Board decision in the above captioned appeal is vacated. Service connection for dermatomyositis is granted. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs