Citation Nr: 1315812 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 09-09 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a skin disorder, claimed as chloracne, to include as secondary to in-service herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1969. He was awarded the Purple Heart and the Combat Infantryman's Badge. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied entitlement to the benefits sought on appeal. A Travel Board hearing was held in August 2011 before Kathleen K. Gallagher, a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who is rendering the determination in this case. The Board subsequently remanded the case for further development in December 2011. That development was completed, and the case was returned to the Board for appellate review. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (the Court) addressed the scope of a claim in regard to a claimed disability in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons the Court held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. In light of the varying skin diagnoses of record, the Board has recharacterized the issue on appeal as entitlement to service connection for a skin disorder, claimed as chloracne. This will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issues of whether new and material evidence has been received to reopen a claim for service connection for peripheral neuropathy, entitlement to service connection for a shrapnel wound to the chest, and entitlement to an increased rating for posttraumatic stress disorder (PTSD) have been raised by the record (based upon information submitted by the Veteran in December and August 2011), but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT A current skin disorder did not have its onset during active service or become manifest within the first post-service year, and the Veteran's current skin disorder is not the result of an event, injury, or disease incurred in active service, to include in-service herbicide exposure. CONCLUSION OF LAW A skin disorder was not incurred in active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The 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). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that the VCAA duty to notify was satisfied by a letter sent to the Veteran in May 2008 with regard to the claim of entitlement to service connection for a skin disorder. The letter addressed all of the notice elements and was sent prior to the initial unfavorable decision by the RO in September 2008. The duty to assist was also met in this case. All service treatment records as well as VA and private treatment records have been obtained and associated with the file. The Board is cognizant that an isolated December 2012 VA dermatology treatment record was uploaded into the Veteran's Virtual VA file after the issuance of the June 2012 supplemental statement of the case. In that treatment note, the examiner listed an assessment of actinic keratoses, solar lentigines, xerosis, seborrheic keratoses, and cherry angiomas as well as recommended treatment plan and prescribed medications. The Board has reviewed the additional evidence but finds that the records consist of evidence are essentially duplicative or not relevant to the matter that is the subject of the decision below. These additional records would do nothing to benefit the issue being considered today. The Board therefore concludes that there is no prejudice in proceeding with consideration of the issue on appeal without affording the RO/AMC an opportunity to issue another SSOC. 38 C.F.R. §§ 19.31(b)(1); 38 C.F.R. § 20.1304(c) (2012). A VA examination with respect to the issue on appeal was obtained in April 2012. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the April 2012 VA medical examination obtained in this case is adequate, as it is predicated on a full reading of the Veteran's claims file. It considers all of the pertinent evidence of record and the statements of the Veteran, and the examiner provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). In addition, the Board finds that the April 2012 VA medical examination substantially complies with the December 2011 remand directive, as the April 2012 VA examiner provided a medical opinion that addressed each of the Board's requested instructions. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required). For these reasons, the Board finds that VA has fulfilled the duty to assist the Veteran in this case. The available records and medical evidence have been obtained in order to make adequate determinations as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Laws and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain diseases, such as malignant tumors, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means 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. 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also 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 C.F.R. § 3.307(d)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; and atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that 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 Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600-42608 (2002). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran asserts he has a current skin disorder, claimed as chloracne that is casually related to in-service herbicide exposure. Service treatment records are void of any complaints, findings, or diagnoses of a skin disorder. Service personnel records detailed that the Veteran was stationed in the Republic of Vietnam during his period of active service from August 1966 to August 1969. Post-service VA treatment records dated from to 2003 to 2011 showed numerous skin findings. Treatment notes dated in 2003 showed complaints of occasional skin lesions and findings of a nodule under the right zygoma. Tinea was also listed on the Veteran's problem list. The Veteran was treated for likely contact dermatitis from work boots in January 2007. A November 2008 VA treatment note listed an assessment of actinic keratoses, chronic sun damage/Favre Rachachot, lipomas, and hand dermatitis. A June 2009 VA dermatology note indicates that the Veteran has actinic keratoses on his arms, eczema, and cysts on his face. It was noted that the Veteran indicated that he has had these cysts since he was born, or for a long time. He also has blackheads around both eyes. He states that he was told that it was caused by Agent Orange years ago. The examination revealed scaly pink and erythematous plaques on the bilateral hands with lichenified papules on the third and fourth web space of the left hand, and erythematous scaly plaques on the legs. He had open comedones on the cheeks with a few yellow subepidermal small nodules on the right cheek. There were no comedones or cysts retroauricular, and there were a few comedones on the mid back. The assessment was hand dermatitis/eczema and chronic sun damage/Favre Racouchot. It was discussed that chloracne has a different distribution normally, usually behind the ears. Tretinoin cream was prescribed. A January 2010 VA dermatology clinic note indicates that the Veteran has hand dermatitis and actinic keratoses on his arms, as well as hand eczema. He had open comedones on the cheeks with a few yellow subepidermal small nodules on the right cheek and patchy erythema in the background. The examiner listed an impression of contact rash in June 2010. Additional treatment notes dated in June 2010 showed prescribed medication for acne. A September 2010 VA neurology attending note indicates that the Veteran related that he has had facial skin changes which he feels are consistent with chloracne. The attending physician indicated that such a diagnosis was not found in a recent dermatology note. A September 2010 VA social work telephone note indicates that the Veteran requested a provider change because the patient/provider relationship is compromised due to misunderstanding and miscommunication about the Agent Orange claims process and other issues. In December 2011, the Board remanded this matter for a VA examination with nexus opinion. In pertinent part, the examiner was requested to provide an opinion as to whether any skin disorder is causally or etiologically related to his service in Vietnam or presumed exposure to Agent Orange. In an April 2012 VA skin diseases examination report, the examiner diagnosed acne and actinic/solar keratoses. The Veteran contended that he has chloracne as a result of Agent Orange Exposure, claiming that he was given this diagnosis during a prior VA Agent Orange Exam. He reported that he developing blackheads and cysts around his eyes after returning from Vietnam and stated that he would often squeeze them to release pus. The Veteran further indicated that he has been prescribed various topical creams and ointments with no response over the years as well as uses strong cleansers and soaps to help control his condition. He complained that his lesions "itch intensely", that he sometimes he awakens in the morning with scratch marks on his face, and uses Hydrocortisone cream and Benadryl to help control the itching. He also reported noting some improvement in the condition over the years. On physical examination, the examiner marked that the Veteran exhibited superficial acne (comedones, papules, pustules, superficial cysts), several small (pinhead size) blackheads distributed along cheeks and into temples, one small one centimeter erythematous nodule on the right cheek (along zygomatic arch), and no large cysts or pustules. After reviewing the claims file, medical literature, and examining the Veteran, the examiner opined that the Veteran's skin disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In his stated rationale, the examiner indicated that the Veteran's contention that he has chloracne was not substantiated clinically or historically. Examination of skin was noted to reveal small blackheads along upper cheeks and below eyes extending into temples with no evidence of extension of blackheads to the ears. Furthermore, the examiner commented that the Veteran's blackheads/comedones were very small with no evidence of scarring. He further referenced the notations of skin damage from sun exposure with actinic keratoses in Veteran's VA medical records, highlighting a June 2009 VA dermatology note which showed a diagnosis of chronic sun damage/Favre Racouchot as opposed to chloracne based on lack of classic appearance or distribution of chloracne. The examiner then provided the following definition for Favre Racouchot: Multiple open and closed comedones being present in the periorbital and temporal areas. Rarely, the lateral neck, postauricular areas, and forearms may be involved. Marked actinically damaged skin with yellowish discoloration, yellowish nodules, atrophy, wrinkles, and furrows are present. The eruption is usually bilaterally symmetrical, although one side may predominate, particularly if that side experienced greater sun exposure. No inflammation is present, unlike the comedones seen in acne vulgaris. Although the pathogenesis of the disorder is unknown, it develops in individuals with a heavy smoking history and chronic exposure to UV light. Based on the foregoing rationale, the examiner concluded that it was therefore more likely than not that Veteran's mild facial acne lesions may be due to chronic sun damage rather than due to Agent Orange exposure, given that he has evidence of other solar keratoses. Although the examiner acknowledged the Veteran's contentions that he had developed numerous facial blackheads and cysts shortly after returning from Vietnam, he concluded that there was no corroborating evidence in the Veteran's records to support that contention. In lay statements of record as well as during his August 2011 Board hearing, the Veteran has asserted that he suffers from chloracne due to his in-service herbicide exposure in Vietnam. The Veteran testified that his primary VA care provider told him that he had chloracne, but that the physician would not put it in writing or document it in any way. He indicated that he requested a change in care provider because of the discrepancy in what the physician said versus what the physician would be held accountable for. The Veteran and his wife also both testified that the Veteran has had his claimed skin condition since 1969. Based on the foregoing, the Veteran is presumed to have been exposed to herbicide agents (Agent Orange). However, the medical evidence of record does not show a diagnosis of chloracne and his currently diagnosed skin disorders are not among the list of diseases enumerated under 38 C.F.R. § 3.309(e). The April 2012 VA examiner specifically determined that the Veteran's contention that he had chloracne was not substantiated clinically or historically. The Board is also cognizant that the Veteran has asserted that a VA physician had verbally told him that his current skin disorder was chloracne. However, a layman's account of what a doctor purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to hold any probative value. See generally Robinette v. Brown, 8 Vet. App. 69 (1995). The presumption of service connection for actinic keratoses or any other diagnosed skin disorder due to herbicide exposure is not warranted. Such is by the direction of the Secretary. The Board lacks the power and capacity to find the contrary. However, as noted above, the regulations governing presumptive service connection for Agent Orange do not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (1994). Accordingly, the Board will proceed to evaluate the Veteran's claim under the provisions governing direct service connection, 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303. As the Veteran currently has multiple skin disorders as noted in the post-service medical evidence of record. Concerning in-service injury, as the Veteran served in Vietnam, his exposure to Agent Orange is presumed. However, a finding of a nexus or casual relationship between the Veteran's currently diagnosed skin disorders and in-service events is not shown. In this case, findings of any skin disorder were first shown many years after separation from active service and cannot be presumed to have been incurred during service. The Board also notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The record also includes no competent medical opinion establishing a causal relationship between the post-service treatment for multiple skin disorders to any established event in service, including presumed in-service herbicide exposure. In fact, the April 2012 VA examiner specifically opined that the Veteran's skin disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service event. The Board acknowledges the Veteran's contentions that his current skin disorder is related to his presumed in-service herbicide exposure. Although the Veteran might sincerely believe that his current skin disorder is related to events during service, as a layperson, his statements are not competent evidence of a medical opinion regarding the etiology of his skin disorder. See Barr, 21 Vet. App. at 307 (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions). In light of the cumulative record discussed above, the criteria to establish entitlement to service connection for a skin disorder has not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a skin disorder is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs