Citation Nr: 1315971 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 05-23 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a skin disability, to include as due to exposure to Agent Orange. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to March 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the RO that denied the Veteran's claim for service connection for a skin disability associated with exposure to herbicides. This claim was previously before the Board in February 2008 and July 2012, and the Board remanded the claim for service connection for a skin disorder for additional development of the record. Such development has been completed and the case is again before the Board. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal and have been considered in the decision below. FINDING OF FACT A recurrent skin disorder was not shown during service or for many years thereafter, and the most probative evidence of record indicates his current skin condition is unrelated to his military service, including to his presumed exposure to Agent Orange. CONCLUSION OF LAW The requirements for establishing service connection for a skin disability have not been met. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In a December 2003 letter, issued prior to the rating decision on appeal, the RO provided general notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. An April 2009 letter provided the same information specifically for the claim for service connection for a skin disability. A March 2006 letter advised the Veteran of how the VA determines a disability rating and assigns an effective date. The claim was last readjudicated in a February 2013 supplemental statement of the case. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, private medical records, reports from VA examinations, records from the Social Security Administration (SSA), lay statements, and hearing testimony. Additionally, the prior February 2008 and July 2012 remand instructions were substantially complied with. Instructions pertinent to the claim being decided included asking the Veteran for information concerning treatment providers, providing corrective VCAA notice, and scheduling a VA skin examination. In response, private and VA treatment records were associated with the Veteran's claims file. Appropriate VCAA notice was provided in April 2009, and he underwent relevant VA examinations. Thus, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). In October 2007, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing to explain the issues and to suggest the submission of evidence that may have been overlooked. Here, the VLJ asked specific questions directed at identifying whether the Veteran's skin disorder was related to service. The VLJ also sought to identify any pertinent evidence not currently associated with the claim. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the VLJ hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim. As such, the Board finds that no further action pursuant to Bryant is necessary. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by reporting for VA examinations, responding to notices, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran contends his skin disorder is the result of his military service, and specifically, his conceded exposure to Agent Orange while stationed in Vietnam during the Vietnam War. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed in 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent, such as the dioxin in Agent Orange, unless there is affirmative evidence establishing that he or she was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii). Pertaining specifically to skin disorders, chloracne or other acneform diseases consistent with chloracne and porphyria cutanea tarda shall be service-connected if a Veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. To warrant application of the presumption, these diseases must 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 RO already has conceded the Veteran's presumed exposure to Agent Orange. However, the Veteran has received diagnoses of eczema and psoriasis, which are not on the list of diseases presumptively associated with Agent Orange exposure in Vietnam. See 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). The Secretary 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 72 Fed. Reg. 32,395 (2007). But even if, as here, a Veteran is found not entitled to a regulatory presumption of service connection, his claim still must be reviewed to determine whether service connection may be established alternatively on a direct incurrence basis by establishing the required causation. See Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994) (holding that a Veteran is not precluded from establishing service connection with proof of actual direct causation). Here, the Board has reviewed all of the evidence in the Veteran's claims file and electronic Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's service treatment records show that he was treated for a rash on his neck in October 1968, and was prescribed Benadryl. The Veteran's March 1969 separation examination was completely silent regarding any skin disorders. Following service, the documentation the record shows the Veteran first complained of skin problems when he was diagnosed with urticaria in March 1999. Private treatment records from the Primary Care Group, dating from June 2005 to June 2007, indicate the Veteran complained of "hands very dry with cracking" in October 2005, but no diagnosis was provided. Additional private treatment records show diagnoses of eczematous dermatitis, psoriasis, and xerosis. VA treatment records dating from March 2004 to 2011 indicate the Veteran was noted to have skin complaints. Specifically, a March 2004 VA treatment record showed he had dry skin on his elbows, but no diagnosis was given. The Board notes that neither the Veteran's private treatment records nor his VA treatment records contain an etiological opinion for his skin disorder. The Veteran also provided testimony during his October 2007 Central Office hearing that that his skin condition on his hands began about six months after he got out of service. Additionally, an apparent skin condition of dry patches covering both hands was noted at the hearing. In May 2009, a letter from the Veteran's private physician, Dr. Brown, stated that the Veteran has psoriasis, which may or may not be due to Agent Orange exposure. No further explanation or rationale was provided. A VA skin examination was conducted in June 2009, in accordance with the Board's February 2008 remand directives. The June 2009 VA examiner noted scattered patchy areas of dryness and mild inflammation on the dorsal surfaces of both hands. No fissuring, drainage, or tenderness was noted. The examiner stated that about 20 percent of the dorsal surfaces of the Veteran's hands were affected, which is approximately 3 percent of his body. The examiner diagnosed eczema, and opined that the skin disorder is less likely as not related to the Veteran's military service, but stated that there was not enough evidence in the past medical records to establish that this condition existed in service or shortly thereafter. In May 2011, an addendum opinion to the June 2009 examination was obtained. The examiner stated that a review of the records indicated the Veteran had a past diagnosis of eczema of the hands in June 2009. The examiner opined that the Veteran's eczema was not related to Agent Orange, and Agent Orange is not medically shown to cause eczema. In August 2012, the Veteran was reexamined in accordance with the July 2012 remand directives. At that time, the examiner reviewed the Veteran's claims file, and also noted the Veteran's contention that his skin started breaking out five to six months after he got out of the service. The examiner confirmed a diagnosis of psoriasis, which covered less than 5 percent of the affected area and the Veteran's entire body. Additionally, the examiner indicated the Veteran uses topical corticosteroids on a constant/near constant basis. When asked to provide an opinion as to whether any skin disorder diagnosed is etiologically related to service, to include the report of a rash treated with Benadryl noted in the service treatment records, or to Agent Orange exposure, the examiner concluded that the Veteran's psoriasis and dry skin are not due to his active military service. As support for this conclusion, the examiner stated there is no objective evidence of a rash being chronic from service (meaning beginning in service and continuing after). Further, the examiner stated that there is no objective evidence of a rash after service, until 2005, which is 36 years after his separation. Finally, the examiner determined there is no objective evidence of the Veteran ever having chloracne, or scarring consistent with chloracne. Also dated in August 2012, is a statement from the Veteran's private physician, Dr. Winkleman. Dr. Winkleman stated that the Veteran has chronic eczema and it is as likely as not that this is related to his exposure to Agent Orange. However, there is no further rationale or explanation for this statement. The Board considers the negative nexus finding of the August 2012 VA examiner to be the most probative opinion evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). This examiner conducted a comprehensive clinical examination and evidentiary review of the claims file, including consideration of the Veteran's statements, thereby demonstrating a familiarity with the Veteran's pertinent medical and lay history. Additionally, this examiner provided a definitively negative nexus opinion, which not only addressed pertinent facts and medical principles but also clearly explained why the Veteran's diagnosed skin disorder is unrelated to his military service, or any rash noted in service. Accordingly, the Board affords this August 2012 VA opinion greater evidentiary weight than the May 2009 and August 2012 favorable statements from Drs. Brown and Winkleman, respectively, which failed to provide any explanation or rationale for their statements. Id., See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Board recognizes that as a lay person, the Veteran is competent to report a history of in-service and post-service skin symptoms, such as a rash, which is within the realm of his personal experience. Nevertheless, the Veteran has not demonstrated that he has the expertise to diagnose skin disorders or determine the etiology of such. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, there are many different types of skin disorders and causes of skin disorders, thereby requiring medical expertise to determine the cause and etiology thereof. That is particularly significant where, as here, the Veteran has been diagnosed with psoriasis and eczema many years after his discharge from the military. Moreover, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his current skin disorder is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's opinion as to the etiology of his skin disorder is not a competent medical opinion. The Boards significantly greater probative weight to the opinion of the VA examiner than to the Veteran's lay assertions. Moreover, to the extent the Veteran contends he has suffered from continuous skin symptoms since service, his separation examination revealed normal skin, and there was no indication of a skin disorder at the time the Veteran filed a previous claim for service connection in November 1969, the same year he separated from service. Further, the first post-service indication of any skin complaint was 1999. Indeed, SSA records from 1988 and 1989 note no mention of any chronic skin disability. It was not until the course of the current claim where such contention was raised. Therefore, the Board finds an assertion that a chronic skin disability has existed since service is simply not persuasive. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records and the significant time delay between the affiants' observations and the date on which the statements were written are factors that the Board can consider and weigh against a veteran's lay evidence); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject statements of the Veteran if rebutted by the overall weight of the evidence). In sum, the rash treated in service was acute, with no findings noted during the remainder of service or on separation examination, nor for many years thereafter. Moreover, the most probative evidence indicates the current skin disability is not related to service, to include Agent Orange exposure therein. Accordingly, the Board finds that the preponderance of the competent and probative evidence is against the claim for service connection for a skin disorder and service connection for a skin disorder is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER The claim of entitlement to service connection for a skin disability is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs