Citation Nr: 1322061 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 08-07 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a skin disorder other than tinea pedis, to include chloracne and tinea cruris. 2. Entitlement to service connection for hallux valgus. 3. Entitlement to service connection for hammertoes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from November 1971 to September 1973. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. The record shows that the Veteran perfected an appeal of additional issues. However, the additional issues have since either been decided by the Board (see November 2011 Board Decision/Remand), or granted by the RO, to include service connection for tinea pedis (claimed as dermatophytosis of the nail) (see September 2012 rating decision). Thus, the only issues left on appeal are those noted on the title page of this decision. In December 2008, the Veteran and his wife testified at a Board hearing before the undersigned Veterans Law Judge sitting at the RO. A transcript of the hearing is of record. This matter was previously before the Board in June 2009 and November 2011 at which time the case was remanded for additional development, to include requesting additional service treatment records, private medical records and SSA records (see June 2009 remand) and affording the Veteran a VA examination (see November 2011 remand). With respect to the issue being decided below; i.e., entitlement to service connection for a skin disorder other than tinea pedis, to include chloracne and tinea cruris, there has been substantial compliance with the Board's June 2009 and November 2011 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection for hallux valgus and hammertoes are being remanded and are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran is not presumed to have been exposure to Agent Orange in service. 2. The Veteran does not have a skin disorder other than tinea pedis, to include chloracne and tinea cruris, attributable to service. CONCLUSION OF LAW The criteria for service connection for a skin disorder other than tinea pedis, to include chloracne and tinea cruris, 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 FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been me with respect to the claim being decided herein, that is, entitlement to service connection for a skin disorder other than tinea pedis, to include chloracne and tinea cruris. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in March 2007 and August 2007 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The issue was readjudicated in a September 2012 supplemental statement of the case. VA has fulfilled its duty to assist. The RO has made reasonable and appropriate efforts to assist the appellant in obtaining the evidence necessary to substantiate the claim for a skin disorder other than tinea pedis, to include chloracne and tinea cruris, including requesting the appellant's records from the Social Security Administration and requesting information from him regarding pertinent medical treatment he may have received and obtaining such records. The RO also afforded him a VA examination during the appeal period. The Veteran was afforded a pertinent VA examination in August 2012. The examiner provided sufficient detail for the Board to make a decision and his report is deemed adequate with respect to this claim. As noted, the appellant provided testimony to the Board in December 2008, and at that hearing he was provided notice of the elements pertinent to his service connection claim for a skin disability and ensured that all pertinent evidence was on file or would be submitted. The Veteran's contentions were discussed and are part of the transcript. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. Hence, VA has fulfilled its duty to notify and assist the appellant, and adjudication at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet, App. 384, 394 (1993). The appeal is now ready to be considered on the merits. II. Facts The Veteran's service treatment records show that he was seen at a medical dispensary in December 1971 for a rash on his body which was noted to be probably due to soap (Zest). A recommendation was made to change to ivory. His discharge examination report of September 1973 shows a normal clinical evaluation of the skin. A determination from the Social Security Administration (SSA) in September 2004 shows that the Veteran was awarded disability benefits effective in June 2004 due to late effects of cerebrovascular disease. VA outpatient records reflect a diagnosis of tinea cruris in September 2004. VA performed an Agent Orange Examination in November 2006 at which time he reported a rash on his chest and back. He was diagnosed as having chloracne. A Report of Contact in August 2007 shows that the Veteran clarified that he was claiming service connection for chloracne as secondary to Agent Orange exposure. He stated he was not in the country of Vietnam, but served at the demilitarized zone (DMZ) from 1972 to 1973 in the waters off the shore of Vietnam. In August 2007, the National Records Personnel Center was unable to determine whether or not the Veteran had in-country service in Vietnam, but confirmed that he did serve aboard the USS RANGER and that the ship was in the official waters of the Republic of Vietnam from December 9, 1972, to January 3, 1973; from January 14, 1973 to January 30, 1973, and from February 1, 1973 to February 6, 1973. The Veteran testified at a Board hearing in December 2008 that the rash he had in service did not come from shaving because he didn't shave. He said the doctor gave him some cream which didn't work, but it cleared up with another cream he used. He said the skin disorder on his neck and body still flares up from time to time. The Veteran reported at a VA skin examination in August 2012 that early in 1972 he noticed a rash over his arms, right side of face, neck, shoulder and feet. He described it as "ashy white spots" that would itch. He denied papules or pustules or bleeding. He said it has occurred intermittently since service and lasts about two months. He reported self-treating it with Noxzema, olive oil and alcohol. He said the rash has spread to his back. He also said a private doctor told him a few years earlier that it was related to exposure to Agent Orange. He denied ever seeing a dermatologist for the condition. He said he breaks out with a rash around his mouth and with weather changes. He denied any bleeding. He also reported having a groin rash. He was noted as having vitiligo. The examiner opined that it was less likely than not (less than 50% probability) incurred in or caused by a claimed in-service injury, event or illness. The examiner relayed the Veteran's report of ashy white spots over his arms, right side of face, neck and shoulders in service with the same rash occurring intermittently over the years after service which he self treated and said that the exam shows vitiligo. He also said it would be difficult to state that the Veteran now has what he had in service without resorting to mere speculation. III. Analysis Law and Regulations As an initial matter, the Board notes that the Veteran is not asserting, nor does the evidence show, that his claimed skin disorder is the result of engaging in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not applicable. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F. 3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). VA laws and regulations provide that, if a Veteran was exposed to Agent Orange during service, certain listed diseases, including chloracne, are presumptively service-connected. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). 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 and porphyria cutanea tarda 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). A Veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA has validly interpreted the "service in Vietnam" language of the statute and regulation as requiring that a Veteran must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. See Haas v. Peake, 525 F. 3d 1168 (Fed. Cir. 2008). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Discussion The Veteran's primary argument is that he should be presumptively service-connected for chloracne because he served in the waters off the shore of Vietnam in the demilitarized zone in 1972 and 1973 is therefore presumed to have been exposed to Agent Orange. The record shows that the Veteran served aboard the USS RANGER, designated at that time as an attack aircraft carrier that operated in the coastal waters off the shore of Vietnam. The National Personnel Records Center confirmed that this ship was in the official waters of the Republic of Vietnam from December 9, 1972, to January 3, 1973; from January 14, 1973 to January 30, 1973, and from February 1, 1973 to February 6, 1973. However, as noted above, VA has validly interpreted the "service in Vietnam" language of the statute and regulation as requiring that a Veteran must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. See Hass v. Peake, 525 F. 3d 1168 (Fed. Cir. 2008). There is no valid evidence in this case that the Veteran ever set foot in Vietnam nor does he claim that he did. Notwithstanding the above, VA's Adjudication Manual Rewrite provides that when a Veteran claims exposure to herbicides during service aboard a Navy ship that operated on the offshore waters of Vietnam, exposure to Agent Orange should be presumed if the ship operated temporarily on Vietnam inland waterways. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, 10k. In addressing whether service such as the Veteran's service on board the USS RANGER constitutes qualifying service in the inland waters of Vietnam, VA has issued Training Letter (TL) 10-06, Adjudicating Disability Claims Based on Herbicide Exposure from U.S. Navy and Coast Guard Veterans of the Vietnam Era (Sept. 9, 2010). TL 10-06 provides that, when evaluating deck log information, adjudicators should look for statements such as "maneuvering at various speeds into..." and references to such locations as "Cua Viet River," "Saigon River," "Mekong River Delta," and "Ganh Rai Bay" or "Rung Sat Special Zone," keeping in mind that anchoring in one of these locations is not the same as anchoring in an open deep-water port. Rather, "these are inland waterways and the presumption of exposure applies to any anchorage associated with them." Moreover, according to TL 10-06, when deck logs refer to entering or anchoring in the "mouth" of one of these locations, or any other identifiable river location, VA's compensation and pension (C&P) service "has determined that this is sufficient to establish service on the inland waterways." In contrast, service aboard a ship that anchored temporarily in an open deep water harbor or port is not sufficient, and C&P Service considers open water ports such as Da Nang, Cam Ranh Bay, and Vung Tau as extensions of ocean waters and not inland waterways. Unfortunately, the deck logs for the USS RANGER are not available nor is the Command History report, and there is no indication from the information on file of the ship's history that suggests that it operated temporarily on Vietnam inland waterways . See PTSD Stressor Verification Review Memorandum dated in July 2012. That notwithstanding, even if the Veteran was presumed to have been exposed to herbicides in service, there is no evidence that he was diagnosed as having chloracne within one year of such exposure. Rather, the sole diagnosis of chloracne was made at an Agent Orange Examination years after his September 1973 service discharge, in November 2006. Thus, presumptive service connection for chloracne is not warranted in this appeal. 38 C.F.R. § 3.307(a)(6)(ii). As far as consideration of this claim without the benefit of the presumption above, the Board notes that the Veteran's service treatment records show that he was seen at a medical dispensary in December 1971 for a rash on his body. It was noted to be probably due to soap (Zest) and he was advised to change to Ivory. His discharge examination report of September 1973 shows a normal clinical evaluation of the skin. Postservice medical evidence shows that the Veteran was initially diagnosed as having tinea cruris in September 2004. However, there is no medical evidence relating this diagnosis to the Veteran's service approximatley 30 years earlier. Moreover, the rash he was seen for in service is not shown to have been limited to the groin area and was thought to be caused by the soap he was using. As for the diagnosed condition of vitiligo in August 2012, the only medical nexus opinion on file for this diagnosis negates a nexus to service. In this regard, the August 2012 VA examiner said that it would be difficult to state that the Veteran now has what he had in service without resorting to mere speculation. He concluded by opining that his vitiligo was less likely than not (less than 50% probability) incurred in or caused by a claimed in-service injury, event or illness. In rendering his opinion, he considered the Veteran's inservice treatment for a rash in December 1971. As for the Veteran's statements that he has a skin disability, to include chloracne, related to service, he is certainly competent to testify as to his symptoms. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). In addition, 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) (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, even if the Veteran were competent to opine as to the nature and etiology of his skin disability, the findings and opinion of the trained professional in August 2012 negating a nexus between the Veteran's diagnosed skin disability and service outweighs the Veteran's general lay assertion of a nexus. Based on the foregoing, the Board finds that the weight of evidence is against the Veteran's claim for service connection for a skin disorder other than tinea pedis, to include chloracne and tinea cruris. In reaching this conclusion 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). ORDER Entitlement to service connection for a skin disorder other than tinea pedis, to include chloracne and tinea cruris, is denied. REMAND The Veteran's October 1971 enlistment examination report shows that he had first degree pes planus. In June 2007, a VA examiner opined that the Veteran's flexible pes planus progressed to the hallux valgus deformity. The examiner explained that the Veteran's walking in service aggravated his pes planus resulting in hallux valgus. In view of this opinion, the Board, in November 2011, directed that the Veteran undergo a new VA examination for further medical clarification. More specifically, the Board directed that a VA medical opinion be obtained addressing whether it was at was at least as likely as not that the Veteran had a foot disability related to service. The record shows that the Veteran was afforded a VA examination in July 2012. Although the examiner diagnosed the Veteran as having hallux valgus, he did not, contrary to the Board's remand directive, offer an opinion as to the likelihood that the disorder is related to service. Accordingly, the examination report is inadequate for rating purposes and does not substantially comply with the Board's November 2011 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court of the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided). Also, this issue was left out of the last supplemental statement of the case issued in September 2012. Thus, there has not been substantial compliance with the Board's November 2011 remand directive that following the requested medical development, a Supplemental Statement of the Case be issued to the Veteran and his representative. Stegall v. West, 11 Vet. App. 268 (1998). With respect to hammertoes, the Board relayed in November 2011 the opinion of a private podiatrist in October 2009 stating that judging by the extent of the Veteran's hammertoes, it was plausible that they were due to his wearing combat boots and running in service. In addition, various VA outpatient records, to include in January 2005, December 2005, May 2006 and February 2007, reflect diagnoses of hammertoes. However, a recent examination in July 2012 shows that the Veteran does not have hammertoes. Accordingly, further medical development by way of a VA examination should be conducted in order to clarify whether the Veteran has a hammertoe disability related to service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Based on the foregoing, the case is REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination to determine the nature and etiology of any current foot condition, to include hallux valgus and hammertoes. All indicated evaluations, studies and tests deemed appropriate should be accomplished and all findings reported in detail. The claims file must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or higher) that any present foot disorder, to include hallux valgus and/or hammertoes, is related to the Veteran's military service and the symptoms that he reported present therein. With respect to hammertoes, in view of the conflicting evidence, the examiner should clarify whether or not the Veteran has this disability. In regard to hallux valgus, the examiner should specifically comment on the VA examiner's opinion in June 2007 that the Veteran's flexible pes planus has resulted in progressing to the hallux valgus deformity. The examiner should provide a thorough rational for his or her conclusions and confirm that the claims file was available for review. 2. After any additional notification and/or development that the RO deems necessary is undertaken, the Veteran's claims for service connection for hallux valgus and hammertoes should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate review, if in order. The appellant and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs