Citation Nr: 1318273 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 08-22 925A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a skin disorder, to include as due to Agent Orange exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from October 1969 to September 1971. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2006 rating decision of the Department of Veterans Affairs (VA), St. Petersburg, Florida, Regional Office (RO), which, in part, denied service connection for a skin condition, also claimed as secondary to Agent Orange exposure. In July 2010 and February 2011, the Board remanded this claim for further development, which has been completed, and the case has been returned to the Board for appellate consideration. During the pendency of his appeal, the Veteran relocated to the Atlanta, Georgia, area. His appeal was transferred to the Atlanta RO. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file to date reveals that they are duplicative of the evidence in the paper claims file. FINDINGS OF FACT 1. The Veteran served in Vietnam from May 18, 1970, to April 28, 1971; therefore, he is presumed to have been exposed to herbicides. 2. The competent evidence does not link the Veteran's skin disorder to his service, to include exposure to the herbicide, Agent Orange. 3. The evidence clearly and unmistakably shows that that the Veteran's skin disorder pre-existed service and was not permanently aggravated by service. CONCLUSION OF LAW The Veteran's skin disorder was not incurred in or aggravated by service, and may not be presumed to have been related to Agent Orange exposure therein. 38 U.S.C.A. §§ 1110, 1111, 1132, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Stegall Considerations As noted above, the Board remanded this matter on two occasions. In July 2010, the Board instructed the Appeals Management Center (AMC) to provide the Veteran with an examination to determine the nature and etiology of his claimed skin disorder and to readjudicate the claim. The Veteran did not report. Due to ambiguity as to whether the Veteran was given proper notification of the scheduled VA examinations, however, the Board remanded the matter once again in February 2011 to afford the Veteran an opportunity to appear for another scheduled VA examination, to obtain any identified treatment records, and to readjudicate the claim. Subsequently, the Veteran was afforded another examination in October 2011, a March 2011 letter requested that he identify all health care providers, and his claim was readjudicated in a November 2011 supplemental statement of the case (SSOC). Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in July 2006, prior to the September 2006 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. That letter also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). All identified and available treatment records have been secured. The Veteran's service treatment records and post-service medical records are in the claims folder. Furthermore, the Veteran was provided a VA examination in October 2011. Although the Board has determined that the examination report was insufficient to adjudicate the issue of service connection, the Board obtained a medical expert opinion in January 2013. The examiner also provided an addendum report in February 2013. Cumulatively, the examination reports reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that the examination reports taken as a whole are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Additionally, the Veteran declined to present testimony in support of his claim. Thus, the duties to notify and assist have been met. Analysis The Veteran seeks service connection for a skin disorder, to include as a result of exposure to Agent Orange. In the alternative, he asserts that he had a pre-existing skin disorder, which was aggravated by service. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for the claimed disorder, there must be (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) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). A recent decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran's skin disorder is not a listed disease in section 3.309. Therefore, this presumption does not apply. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, 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 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). If so, the veteran is thereby entitled to a presumption of service connection for various diseases including chloracne and porphyria cutanea tarda. 38 C.F.R. § 3.309(e) (2012); Final Rule, 75 Fed. Reg. 53,202 -16 (Aug. 31, 2010). In this case, the Veteran's exposure to Agent Orange/herbicides during service is conceded; however, this presumption does not apply to his case as there is no evidence of chloracne and porphyria cutanea tarda as discussed below. Notwithstanding the foregoing, the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). The United States Court of Appeals for Veterans Claims (Court) has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). Therefore, the case will be analyzed on a direct basis, rather than on a presumptive basis. The law provides that a veteran who served during a period of war, or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. 38 U.S.C.A. §§ 1111, 1132 (West 2002). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (2003), 69 Fed. Reg. 25,178 (2004); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). VA amended 38 C.F.R. § 3.304(b), effective May 4, 2005, to reflect a change in the interpretation of 38 U.S.C.A. § 1111 by the Federal Circuit and VA's General Counsel, and the regulation now states that to rebut the presumption of soundness, VA must establish by clear and convincing evidence both that the disability existed prior to service and that it was not aggravated by service. A pre-existing injury or disease is considered to have been aggravated by active service if there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153(West 2002); 38 C.F.R. § 3.306(a) (2012). VA bears the burden to rebut the presumption of aggravation in service. Laposky v. Brown, 4 Vet. App. 331, 334 (1993); Akins v. Derwinski, 1 Vet. App. 228, 232 (1991). However, aggravation is not conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b) (2012); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Thus, "a lasting worsening of the condition" - that is, a worsening that existed not only at the time of separation but one that still exists currently is required. Routen v. Brown, 10 Vet. App. 183, 189 (1997); Verdon v. Brown, 8 Vet. App. 529, 538 (1996). In this case, the examination report at service entrance showed a normal skin evaluation, and at that time the Veteran did not report a history of a skin disorder. The Veteran is, thus, presumed sound. As noted above, to rebut this presumption, clear and unmistakable evidence of a pre-existing disability and lack of in-service aggravation must be shown. The pertinent evidence of record reveals that the Veteran complained of and sought treatment for dermatitis of the face and a rash of the hips and legs during service. Specifically, an October 1969 service treatment record noted dermatitis of the face since age six and hydrocortisone was prescribed. A December 1969 service treatment record showed complaints of a rash on the hips and legs. A December 1969 dermatology note indicated mild ichthyosis on the legs and buttocks. Also, the examination reports at service discharge showed a normal skin evaluation. The Veteran's post-service treatment records did not include any treatment for the skin. He was afforded a VA examination in October 2011. The VA examiner noted a diagnosis of ichthyosis, and opined that it was less likely than not that it was caused by the Veteran's service and/or service in Vietnam. He reasoned that while there was a rash on the hips and legs in 1969, the examination report at service discharge was silent as to a skin disorder and there was no mention of any skin problems for over 40 years. Notably, the examiner did not discuss whether the dermatitis of the face since childhood noted in October 1969 was the same as ichthyosis on the legs and buttocks noted in December 1969, or otherwise related. A medial expert opinion was obtained in January 2013. Upon review of the Veteran's chart, the examiner indicated that the Veteran had a common disorder known as atopic dermatitis. This term encompassed a collection of findings, which included a family or personal history of hay fever, allergies, sinus trouble, asthma, and icthyosis. At times (e.g., exposure to quickly changing weather), the disorder will flare up and require treatment with typical steroids and maybe an oral antihistamines for itching, and at other times the skin will be clear. The examiner added that even without obvious dermatitis the skin was usually dry, and ichthyosis was used to describe excessively dry skin. Noting that the disorder ran in families, especially those considered to be atopic, the examiner stated that it was reasonable that the Veteran was seen at times with dermatitis and other times he was seen with normal skin. She concluded that the Veteran's disorder was not related to Agent Orange exposure, and that it was less likely than not that his history of skin problems were related in any way to his military experiences. In February 2013, the same examiner, who provided the January 2013 opinion, rendered an addendum to her earlier report. She indicated that it was as likely as not that the Veteran's childhood rash was related to ichthyosis noted in 1969. The examiner explained that atopics generally breakout in childhood and then intermittently throughout their lives, ichthyosis (very dry skin) was part of the atopic diathesis, and patients tend to be dry indefinitely but broken out with dermatitis (eczema) only intermittently. She reiterated that it was not as likely as not that the Veteran's episode of dermatitis was related to Agent Orange. Although chloracne and porphyria cutanea tarda are associated with such exposure, they did not resemble dermatitis. As to the record reflecting treatment for dermatitis in 1969, at which time the Veteran reported he had the disorder since age six, the examiner indicated that it was the natural history of atopic dermatitis. The disorder flared and got better, and was often temporarily aggravated by changes in temperature (e.g., onset of winter, and exposure to wind and pollen). She emphasized that the Veteran's dermatitis did not increase beyond the natural progression of the disorder during service. The examiner also indicated that the genetic defect associated with dermatitis was not fully known, it was a common disorder, and it was known that it was not associated with exposure to Agent Orange. The Board finds the January 2013 and February 2013 examination reports to be highly probative, as they were based on a thorough review of the Veteran's medical history and cite to the relevant evidence of record. The opinion is also consistent with the other evidence of record showing that the Veteran's skin disorder flared on and off throughout his life. It is supported by a detailed rationale, and references medical relevant medical principles. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). Furthermore, the opinion was obtained from a licensed medical professional rather than a lay person. The Board finds that the Veteran's skin disorder clearly and unmistakably existed prior to service, based on the service treatment record within one month of entry noting a history of the skin disorder since the age of six, as well as on the medical opinion that convincingly links the Veteran's childhood disorder to the type of disorder he was treated for in service. The Board also finds that the evidence clearly and unmistakably shows that the Veteran's skin disorder was not aggravated during his service. That is to say, it did not undergo a permanent increase in severity beyond the natural progression of the disorder during service. See 38 U.S.C.A. § 1111 (West 2002); Wagner, supra; VAOPGCPREC 3-2003. This is based on the medical opinion that explains the disease process at issue and that flare ups will happen on occasion and clear up, such as they did during his service. Because the evidence clearly and unmistakably shows that the preexisting disability was not aggravated by service, service connection is not warranted. For the sake of completeness, the Board notes that the Veteran has alternatively argued that this was not a preexisting condition, and that it was in fact caused by Agent Orange. The Board notes that the Veteran has submitted no competent nexus evidence contrary to the VA opinions of record. The Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his claim; he has not done so. See 38 U.S.C.A. § 5107(a) (2012) (noting it is a claimant's responsibility to support a claim for VA benefits). Indeed, there is no competent evidence of record showing that the Veteran's pre-existing atopic dermatitis was aggravated by his military service and/or related to Agent Orange exposure. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). Lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, assertions as to whether the Veteran's pre-existing skin disorder was aggravated by service or related to Agent Orange exposure are etiological questions unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007)(noting that a lay witness is capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his current disorder, which affects a complex organ of the body, namely the skin. While he is competent to report what he experienced, he is not competent to ascertain the etiology of this current skin disorder, as the causative factors for such are not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). The Board gives more credence to the VA examiner's opinions that were rendered by a licensed medical professional rather than a lay person in light of the complexity of the medical condition at issue. Based on the foregoing, the weight of the evidence is against the Veteran's claim and the benefit of the doubt provision does not apply. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for a skin disorder is not warranted. ORDER Service connection for a skin disorder, to include as due to Agent Orange exposure, is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs