Citation Nr: 1320212	
Decision Date: 06/21/13    Archive Date: 07/02/13

DOCKET NO.  09-44 186	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri



THE ISSUE

Entitlement to service connection for nummular eczema with xerotic eczema as secondary to herbicide exposure.



REPRESENTATION

Appellant represented by:	Missouri Veterans Commission



ATTORNEY FOR THE BOARD

C. Fetty, Counsel



INTRODUCTION

The Veteran performed active military service from September 1965 to September 1968.  He served in the Republic of South Vietnam.

In April 2004, the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, denied multiple service connection claims.  The Veteran submitted a timely notice of disagreement with five of those claims.  The RO issued a statement of the case, but the Veteran did not file a VA Form 9, Appeal to the Board of Veterans' Appeals or other correspondence containing the necessary information.  Thus, the Board of Veterans' Appeals (Board) lacks jurisdiction to address those earlier-adjudicated claims.  

This case arises to the Board from an April 2009 RO rating decision that denied service connection for an acquired skin disorder. 

In March 2012 and in January 2013, the Board remanded the case for development. 

The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA.


FINDING OF FACT

Nummular eczema with xerotic eczema arose many years after active service, is not the result of a disease or injury incurred in active service, and has been dissociated from exposure to herbicide agents by competent medical evidence.



CONCLUSION OF LAW

Nummular eczema with xerotic eczema was not incurred in active military service and may not be presumed to have been so incurred.  38 U.S.C.A. §§ 1110, 1111, 1112, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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).  This notice 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 service-connection, 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.  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.  

VA's duty to notify the claimant of what information and evidence is necessary to prevail on the claim for service connection for a skin disease was satisfied by a letter sent to the claimant in March 2009.  The letter contains all required notice elements and was sent prior to the initial unfavorable decision that was issued in April 2009.   

VA's duty to assist the claimant in the development of the claim has also been met.  The claimant's service treatment records (hereinafter: STRs) are in the claims file.  All pertinent VA and private treatment records have been obtained and associated with the file.  A VA compensation examination was performed in May 2012 and an addendum report was obtained in April 2013.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA provides a VA examination or obtains a VA opinion, it must ensure that the examination or opinion is adequate).  In this case, the VA medical opinion obtained is adequate.  It is based on the medical history of the case and all other pertinent evidence of record and offers a medical opinion supported by a rationale.  Accordingly, VA's duty to assist in the development of the claim has been met.  38 C.F.R. § 3.159(c) (4).  

The Board has remanded the case for development.  When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  In this case, all remand orders have been complied with.  

Service Connection

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 chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculosis disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. § 3.307(a).  The term "chronic disease" refers to those diseases listed under the statute and regulation.  See 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013).  The claimed skin disorders, nummular eczema with xerotic eczema, do not appear on these lists.  Therefore, service connection for nummular eczema with xerotic eczema, on a presumptive basis, is not available.

VA statute and regulations contain special provisions for service connection for those exposed to herbicides duing active service.  38 U.S.C.A. § 1116 (West 2002 & Supp. 2012); 38 C.F.R. § 3.309(e) (2012).  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 containing dioxin or 2,4-dichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in 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(f) (West 2002 & Supp. 2012).  

VA regulations contain further provisions for a presumption of service connection for certain diseases for those exposed to herbicides during active service.  The specified diseases for which presumptive service connection is available are: AL amyloidosis, chloracne and other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, Ischemic heart disease, all chronic B-cell leukemias including hairy-cell and chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and certain soft tissue sarcomas.  38 C.F.R. § 3.309(e) (2012).  Nummular eczema and xerotic eczema are not among the enumerated diseases, set forth above, for which presumptive service connection is available for veterans exposed to herbicide agents during active service.  

Thus, the only remaining avenue for service connection in this case is "direct service connection" as stressed by the Federal Circuit Court of Appeals (Fed. Cir.) in Combee, 34 F.3d at 1044 ("Veterans retain the opportunity to show direct service connection by establishing direct actual causation.).  

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.

The Veteran's STRs make no mention of any relevant skin disorder at any time.  The Veteran underwent an Agent Orange Registry examination in July 2003; however, that examination report does not mention the skin.  The Veteran submitted his first claim for service connection for a skin condition in February 2009.  He claimed that serving in Vietnam had caused nummular eczema with xerotic eczema.  

Along with his February 2009 service connection claim, the Veteran submitted a November 2008-dated private medical report.  The medical history page of the report reflects that Dr. Kady wrote:

Blemishes/Discoloration 
Arms 
3-4 months 
Ø Symptoms 
May be due to Agent Orange 
Was in Vietnam 
gets sensations in areas 
Ø prior Tx." 

The private report then reflects an assessment of "Nummular eczema vs. Xerotic eczemas" of the arms and shoulders and mentions that a "KOH" (potassium hydroxide laboratory test for the presence of a fungal condition) test was negative.  The report contains diagrams depicting the location of skin lesions.  

In March 2012, the Board remanded the case for an examination and medical opinion.  According to a May 2012 VA dermatology compensation examination report, the current diagnosis was dermatitis or eczema that arose in 2008 or later.  The examiner noted that the Veteran's STRs reflect no relevant condition at entry, during active service, or at the time of separation.  The examiner noted that nummular eczema is common and in this case it did not start until 2008.  Because it did not arise until 2008, exposure to Agent Orange was not the cause of it.

In April 2013, the March 2012 VA examiner provided an addendum report.  In that report, the physician stated that the 2008 private opinion that appears to link nummular eczema with exposure to Agent Orange was merely conveying the Veteran's own assessment.  The physician concluded that in 2008 Dr. Kady did not intend to offer a medical opinion on the cause of nummular eczema.  

The medical opinion is persuasive, as it is based on accurate facts and supported by a rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). 

Although the Veteran believes that the current skin disorder is related to active service, no medical professional has agreed with him.  In addition, although a rash itself may be capable of lay observation, whether a skin disorder is nummular eczema or some other type of skin disorder is a medical matter not subject to lay diagnosis.  Even more complicated is the question of the etiology of differing types of skin disorders.  Therefore, the Veteran's own statements about the cause of his skin disorder is not competent evidence.  Thus, his opinion cannot be afforded any weight.  38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional).  

After considering all the evidence of record, the Board finds that the preponderance of it is against the claim.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra.  The claim for service connection for any acquired skin disorder is therefore denied. 


ORDER

Service connection for any acquired skin disorder is denied.



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs