Citation Nr: 1322033 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 07-28 007A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for porphyria cutanea tarda (PCT), including as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to October 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from June 2006 and November 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In May 2011, the Board remanded the case to the RO for additional evidentiary development. As discussed in more detail below, the Board finds there was substantial compliance with its remand orders and that it may therefore proceed with a determination of the issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). The RO continued the denial of the claim as reflected in the March 2012 supplemental statement of the case and returned this matter to the Board for further appellate consideration. FINDINGS OF FACT 1. The Veteran is shown to have served in the Republic of Vietnam from August 1968 to April 1970; therefore, exposure to herbicides is conceded. 2. The Veteran's PCT was first manifest many years after service and is not etiologically related to any incident of service including exposure to herbicides. CONCLUSION OF LAW The criteria for service connection for PCT, to include as presumptively due to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Compliance with Prior Board Remand The Board observes that this case was previously remanded in May 2011 to obtain a VA examination to determine if the Veteran's PCT was linked to his active duty, including his conceded exposure to herbicides during his service in the Republic of Vietnam. A VA skin examination was conducted in December 2011 that provided an etiology opinion regarding the Veteran's PCT. This VA examination is adequate. See 38 C.F.R. § 3.159(c)(4). It appears there was substantial compliance with the prior remand order and the Board may continue with its determination. Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. VA's Duties to Notify and Assist The VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). See also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Appropriate notice was provided in January 2006 and July 2006 letters. As for the duty to assist, the Veteran's service treatment records (STRs) and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran has not claimed to be in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). The Veteran has not identified, and the record does not otherwise indicate, any additional relevant medical records that have not been obtained and associated with his file. Two VA examinations have been secured in connection with the Veteran's claim for service connection. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008). The Veteran's December 2011 VA examination is sufficient as it provides explanations for the opinions stated as well as the medical information necessary to reach a decision. VA's duty to assist with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. III. Service Connection The Veteran contends he has PCT that is related to his military service, specifically his exposure to herbicides during service. See, e.g., Veteran's Application for Compensation and/or Pension, December 2005. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Further, VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2012). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. In general, for service connection to be granted for most of the presumed diseases, they must be manifested to a degree of 10 percent or more at any time after service. PCT, however, must be manifest to a degree of 10 percent within one year after the last date on which the Veteran performed active military, naval, or air service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. See 38 U.S.C.A. § 1116 (West 2002 & Supp. 2012); 38 C.F.R. § 3.307(a)(6)(ii); Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the nexus between in-service herbicide exposure and PCT, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, medical evidence will be required to establish a medical diagnosis of the Veteran's PCT and to address the question of whether his in-service herbicide exposure caused his PCT. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Id. at 54. Initially, the Veteran's exposure to herbicides is conceded as his service personnel records show that he had active duty in the Republic of Vietnam from August 1968 to April 1970. 38 U.S.C.A. § 1116(f). Nevertheless, the record does not contain any evidence that shows the Veteran had PCT, manifest to a degree of 10 percent, within one year after his last date of service in the Republic of Vietnam. Thus, the presumption of service connection as a result of exposure to herbicides does not apply. 38 C.F.R. § 3.307(a)(6)(ii). Notwithstanding the foregoing, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The evidence of record shows the Veteran is currently diagnosed with PCT, as reflected in his VA Medical Center (VAMC) records. See West L.A. VAMC, Dermatology Note, July 2005. The Veteran was first diagnosed with PCT in July 2005. Id. As the evidence of record reflects a current diagnosis of PCT, the relevant inquiry is whether the Veteran's PCT had its onset in, or is otherwise attributable to, service. See Davidson, 581 F.3d at 1316. The Veteran contends that his PCT had its onset during service as shown by his March 1970 STR entry finding a sunburn on his right leg from four days prior, which was classified as a first-degree burn. See Veteran's Informal Hearing Presentation, April 2011. PCT is defined as "the most common form of porphyria, characterized by cutaneous photosensitivity that causes scarring bullae, hyperpigmentation, facial hypertrichosis, and sometimes sclerodermatous thickening and alopecia; it is frequently associated with alcohol abuse, liver disease, or hepatic siderosis." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1497 (32nd ed. 2012). The Veteran's STRs also document that upon entry into service, the Veteran denied a history of skin diseases, tumors, growths, cysts, or cancer. See Veteran's Report of Medical History, July 1967. The Veteran's July 1967 induction examination found that his skin was normal. During service, the Veteran was not diagnosed or treated for any skin disorders, except the above-referenced sunburn in March 1970. Upon separation from the military in October 1970, the Veteran's skin was found to be normal and he reported no history of skin diseases, tumors, growths, cysts, or cancer. During the January 2006 VA skin examination, the Veteran stated that he has had skin lesions from PCT for over eight years. The examiner found the Veteran's left wrist had a firm 3.5 centimeter (cm) by 3.5 cm reddish, papular patch with irregular borders and that both hands had old excoriated, scaly lesions. The examiner diagnosed the Veteran with PCT. No nexus opinion was provided. In December 2011, the Veteran was afforded a second VA skin examination. The examiner documented the Veteran's July 2005 diagnosis of PCT. The Veteran stated he has had bumps all over his body on and off since separation from the military. The examiner opined that the Veteran's PCT was less likely than not incurred in or caused by the claimed in-service injury or event. The rationale provided was that PCT manifests itself as a blistering disorder on sun exposed skin and is most prevalently associated with hepatitis c, among other conditions. The March 1970 STR note for a first degree sunburn of the right leg makes it unlikely there were any blisters, as blisters are considered a second degree burn. The examiner found the Veteran's first complaints of any skin issues appear in the early 2000s, many years after his service in Vietnam. Overall, the examiner stated it is more likely that the Veteran's PCT is related to his hepatitis c [which the Board notes is a nonservice-connected disorder which was not present until many years after service]. As stated above, the Veteran's VAMC records show that he was first diagnosed with PCT in July 2005, 35 years after his discharge from service. The Veteran's post-service treatment records fail to reflect any medical opinions or notations suggesting the Veteran's PCT had its onset in service. This passage of time weighs significantly against a finding of direct service connection. See Maxson v. West, 12 Vet. App. 453 (1999) (holding that service connection may be rebutted by the absence of medical treatment for the claimed condition for many years after service). Additionally, the Veteran's lay statements regarding the date of onset of his PCT, even assuming that they are competent, are not credible. Lay statements, such as those made by the Veteran, are considered to be competent evidence when describing the features or symptoms of an injury or illness and may establish the presence of a condition during service. Washington v. Nicholson, 21 Vet. App. 191, 195 (2007). Symptoms of the Veteran's PCT are capable of lay observation with regard to the blistering associated with the condition. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Id. (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Veteran has at various times claimed his PCT began upon separation from active duty in 1970, in 1998, and in 2003. See VA Skin Examination, December 2011 (Veteran stated he has had bumps all over his body on and off since separation from the military); see also VA Skin Examination, January 2006 (Veteran provided history of PCT skin lesions for over eight years); Veteran's Application for Compensation and/or Pension, December 2005 (Veteran claimed that his PCT began in January 2003). These inconsistencies in the record weigh against the Veteran's credibility as to the onset date of his PCT. See Madden, 125 F.3d at 1481 (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other earlier lay statements that he had not received any wounds in service). Moreover, the Board notes that to the extent that the Veteran claims to have had PCT since service, his statements are contradicted by the more reliable contemporaneous service separation examination showing normal skin. In summary, the evidence does not demonstrate that the Veteran had PCT in service or within one year after exposure to herbicides, manifest to a degree of 10 percent or more. Furthermore, there is no competent medical evidence suggesting that the Veteran's PCT is associated with any incident of his service. Accordingly, given the evidence of record fails to provide a link between the Veteran's PCT and service, the Veteran's appeal is denied. In reaching the conclusion above, 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); Ortiz v. Principi, 274 F.3d 1361, 1364-65 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 54-55. ORDER Entitlement to service connection for PCT, including as due to herbicide exposure, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs