Citation Nr: 1323459 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 07-39 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a skin condition, to include as secondary to herbicide (Agent Orange) exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from December 1965 to September 1967. This appeal comes to the Board of Veterans' Appeals (Board) from September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In September 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. This issue has been previously remanded by the Board twice for further development. In November 2011 the Board remanded this issue in order to obtain records from the Veteran's private physicians and provide a VA examination. Treatment records from Dr. D.G. were obtained and associated with the record. The Board notes that the Veteran also provided a signed release for records from Dr. R.C. but no efforts were made to obtain these records. However, in his November 2011 statement the Veteran indicated Dr. R.C. had retired in January of 2011 and his records were no longer available. As such, any attempt to obtain these records would have been futile. A VA examination was also provided in February 2012. As such, the Board finds the November 2011 remand directives were substantially completed and appellate review could continue. D'Arie's v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). In November 2012 this issue was again remanded for a supplemental opinion from the VA examiner regarding whether the Veteran's skin condition was due to his service-connected PTSD. The supplemental opinion was obtained and associated with the claims file. As such, the November 2012 remand directives were completed and appellate review may continue. Id. FINDING OF FACT The weight of the evidence is against a finding that the Veteran's current skin conditions either began during, or were otherwise caused by, his military service, to include as secondary to herbicide exposure or his service-connected PTSD. CONCLUSION OF LAW Criteria for service connection for a skin condition have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking service connection for a skin condition, to include as secondary to herbicide (Agent Orange) exposure. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury that incurred in or was aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). The Veteran has asserted that his current skin condition is the result of his exposure to herbicides including Agent Orange during his military service. VA regulations provide that if a Veteran served on active duty in the Republic of Vietnam between January 9, 1962 and May 7, 1975 he is presumed to have been exposed to an herbicide agent unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). "Service in the Republic of Vietnam" includes service in the waters offshore and in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. The Veteran's military personnel records reflect he was deployed to Vietnam for one year during his military service. Therefore, the Board finds the Veteran served in the Republic of Vietnam and as such is presumed to have been exposed to herbicides, including Agent Orange. However, the Board notes that the mere exposure to herbicides alone does not create a permanent disability for which compensation may be granted. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree anytime after service. 38 C.F.R. § 3.307(a)(6). This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307, 3.309. The only skin condition included on the exclusive list of diseases covered by this presumption is "chloracne or other acneform disease consistent with chloracne." 38 C.F.R. § 3.309(e). Therefore, if the Veteran currently has chloracne this condition may be presumed connected to his military service, but service connection cannot be granted for any other skin condition on a presumptive basis. The Veteran's service treatment records were reviewed. On his December 1965 Report of Medical History at enlistment the Veteran noted he had a previous history of a skin condition due to a drug reaction. Service treatment records do not reflect the Veteran made any complaint of, or sought any treatment for, any skin condition during his military service. On his September 1967 Report of Medical History at separation from service the Veteran indicated he had experienced skin diseases, but did not provide any additional description. As such, it is unclear from the service treatment records whether the Veteran indicated he experienced a skin disease during service, or whether he was again referencing his skin condition due to a drug reaction before military service. Even if the Veteran's checkmark is presumed to indicate he experienced a skin condition during military service, the Veteran did not provide any description of the condition or which part of the skin was involved. As such, the Board finds service treatment records fail to establish the Veteran had a chronic skin condition during his military service. Throughout the period on appeal the Veteran has consistently asserted that he received treatment at a Dermatology Clinic in Decatur, Illinois for a skin condition on his feet shortly after returning from military service in the 1970s. He asserted both doctors he was treated by, Dr. R.C. and Dr. R.E., diagnosed him with a fungus skin condition that he could have gotten in Vietnam. However, Dr. R.E. has since passed away and Dr. R.C. is retired. As such, these records were not available for review. The claims file does contain records from private treatment with Dr. C.T. from the late 1990s regarding the Veteran's skin condition. In April 1998 tinea pedis was noted on the Veteran's feet, as well as warts on three of his fingers and lichen on his back. The doctor noted the Veteran reported developing a rash on both hands and his left foot soon after returning from Vietnam. He noted his condition had worsened since that time, and his skin had become thicker scaled over time. The physician noted scaling and hyperkeratosis in a sandal distribution on both hands, more on the right hand, and his left foot. In an August 2011 written statement the Veteran's former supervisor reported that since meeting the Veteran in 1994 he noted the Veteran would constantly pick at his hands. He observed the Veteran's hands looked like they had a buildup of dead skin on both hands. The Veteran told his supervisor this condition only started after he came back from Vietnam. VA treatment records reveal that as early as May 2007 thickened, lichenified skin was noted in webspace of Veteran's thumb and index finger bilaterally, as well as a large patch of hyper and hypopigmentation with overlying scales on the left side of his back. (The Board notes the Veteran is separately service connected for a scar on his back) In July 2009 a VA medical provider diagnosed the Veteran with onychomycosis on his feet, a fungal infection of the toe nail. In September 2011 the Veteran sought treatment from his private physician, Dr. D.L. The Board notes this doctor included "acne(chloro)" on the history of present illness, however review of the record does not reflect the Veteran had been previously diagnosed with chloracne. Moreover, Dr. D.L. himself did not diagnose the Veteran with chloroacne. Instead, the doctor opined the Veteran had chronic vitilgo and eczema of the hands. The doctor stated "these conditions are no doubt related to his exposure to chemicals in Vietnam." However, the doctor failed to provide any explanation or rationale for his opinion. He also noted a region of vitiligo from shrapnel injury on the Veteran's mid back. Notably the doctor did not note any condition of the Veteran's feet. That same month Dr. D.L. also wrote a letter to the VA asserting the Veteran had vitiligo, eczema, and chloracne due to his exposure to Agent Orange. However, the private physician again did not provide any explanation or rationale for his opinion. Because Dr. D.L. failed to provide any analysis or rationale for his conclusion his opinion cannot be weighed and considered against other opinions and is therefore less probative. See Stelf v. Nicholson, 12 Vet. App. 120, 124 (2007). In February 2012 the Veteran was provided with a VA examination. The examiner noted the Veteran had been diagnosed with hyperkeratotic eczema since 1998 which covered less than 5% of the Veteran's total body area. He also noted the Veteran had a history of a recurrent foot fungus. However, the examiner opined the Veteran did not have cloracne. The examiner stated "an opinion about service connection for this Veteran's hand eczema and recurring foot fungus is not possible without resorting to speculation." However, he continued to explain that the noted fungus infections and eczema usually flared very soon after exposure to causative agents, such as Agent Orange, however the Veteran's conditions did not begin until after he returned from military service. He also stated the Veteran's known conditions, eczema and tinea pedis, were not known to be connected to Agent Orange. Finally, the examiner opined "while it is possible that the Veteran's eczema was provoked by environmental conditions in Vietnam, there is insufficient data available to support any degree of probability." Therefore, despite the statement that an opinion was not possible without resort to speculation, the Board finds the examiner's report, when read as a whole, finds the Veteran's current skin conditions are less likely than not due to his military service. Based on the foregoing, the Board finds the Veteran does not currently have chloracne. The Veteran has testified he only received treatment for his feet shortly after service in the 1970s and has not alleged he was diagnosed with chloracne at that time. Chloracne was also not noted in the Veteran's early private treatment records from the 1990's. Despite this lack of evidence, Dr. D.L. listed "acne(chloro)" in the Veteran's history of illnesses, but did not diagnose this condition himself. Instead during the physical examination the physician only noted vitiligo and eczema. Finally, in the February 2012 examination report the examiner specifically opined the Veteran did not have chloracne. As such, the Board finds the weight of the medical evidence of record does not support the Veteran is currently diagnosed with chloracne. As discussed above, chloracne is the only skin condition on the exclusive list of diseases presumed to be due to Agent Orange exposure. 38 C.F.R. § 3.309(e). As such, the weight of the evidence does not establish the Veteran is entitled to service connection for a skin condition on a presumptive basis due to his Agent Orange exposure. The Board finds the evidence establishes the Veteran does have a current skin condition, to include eczema on his hands and onychomycosis or tinea pedis on his feet. Moreover, as a lay person the Veteran is competent to report what comes to him through his senses, such as experienced dry, scaly skin on his hands or blisters on his feet. Layno v. Brown, 6 Vet. App. 465 (1994). As such, the Board finds the Veteran has a current skin condition on his hands and feet. The Board has thoroughly reviewed and pondered the evidence of the record, but for the following reasons, it is simply not persuaded that it is at least as likely as not (50 percent or greater) that the Veteran's current skin condition either began during or was otherwise caused by his military service, to include exposure to Agent Orange therein. As discussed above, service treatment records fail to establish the Veteran had a chronic skin condition on his hands or feet during his military service. The Veteran has asserted that he received treatment for a fungus condition on his feet shortly after returning from military service in the 1970s. Unfortunately these records are not available for the Board to review. As such, the Board is not able to determine if the Veteran's alleged treatment in the 1970s was for the same foot condition he experiences today. However, the Board notes in his hearing the Veteran described receiving treatment for blisters on his feet in the 1970s and the Veteran asserted his physician specifically told him the blisters were not athlete's foot. However, more recent treatment records reflect a diagnosis of a recurrent fungal infection on his feet, including tinea pedis, also known as athlete's foot. As such, the Board finds that the Veteran's own testimony suggests his current foot condition is a different condition than the Veteran experienced in the 1970s. Additionally, the Veteran has not asserted that he received any treatment for a hand condition shortly after returning from Vietnam when he sought treatment for his feet. Moreover, the Veteran has not alleged he received treatment for any skin condition on his hands or feet throughout the 1980s. Instead, the earliest evidence of record the Veteran experienced an eczema-like skin condition on his hands is the lay assertion from the Veteran's supervisor he observed the Veteran's skin condition in 1994, nearly three decades after the Veteran separated from military service. The Veteran was then diagnosed with his current conditions in the late 1990s. As such, the medical evidence of record does not include evidence the Veteran began experiencing his current skin conditions until thirty years after his separation from military service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period without medical complaints about a condition can be considered as a factor in resolving a claim). Although this factor is not dispositive, the lack of treatment for a skin condition on his hand for nearly thirty years after service, and the gap of treatment for any foot condition for at least a decade suggest the Veteran has not experienced his current skin conditions consistently since his military service. Therefore, the weight of the evidence fails to establish the Veteran's current skin conditions began during and have continued since his military service. Finally, the weight of the evidence of record fails to establish the Veteran's current skin condition is otherwise related to his military service. As discussed above, Dr. D.G. opined the Veteran's current skin eczema was related to his exposure to chemicals in Vietnam. However, as discussed above, he did not provide a rationale for this opinion and, as such, his opinion is less probative. In February 2012 the VA examiner found there was insufficient data available to support the theory that the Veteran's hand eczema and recurring foot fungus was related to his military service with any degree of probability. The examiner provided a rationale for his opinion, explaining that skin conditions due to causative agents, such as Agent Orange, usually flare shortly after exposure, but the Veteran's conditions did not begin until after he returned from military service. The Board finds the VA examiner provided an opinion supported by a clear rationale. As such, this opinion provides highly probative evidence against the Veteran's claim. Therefore, the Board finds the weight of the medical evidence of record establishes the Veteran's current skin condition is less likely than not due to his military service, to include any Agent Orange exposure therein. In his December 2007 substantive appeal the Veteran asserted that his skin condition was also from stress. The Veteran is currently service-connected for PTSD. VA regulations provide that secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may be found when a service-connected disability aggravates another condition. However the Veteran may only be compensated for the degree of disability above the natural progression of the nonservice-connected condition caused by the service-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Temporary or intermittent flare-ups of a pre-existing injury are not sufficient to be considered aggravation unless the underlying condition itself, as contrasted with mere symptoms, has worsened. Cf. 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) (regarding aggravation of a pre-existing condition during military service). In January 2013 the same VA examiner provided an addendum opinion commenting on whether the Veteran's current skin condition was due to his service-connected PTSD. The examiner noted it is "well known" that eczema waxes and wanes often due to stressors such as lack of sleep, intense emotions, unhealthy diet, drugs, prescribed medication, smoking, household mold/mildew contamination, excessive exercise, and food allergies. However, he opined there was insufficient evidence to conclude the Veteran's PTSD in particular aggravated his eczema. That is, the examiner suggested that while some of the symptoms of PTSD, such as lack of sleep and intense emotions, could cause a temporary flare of the Veteran's eczema, the evidence did not suggest the Veteran's PTSD had permanently aggravated his skin condition. Additionally, the examiner was not aware of any medical evidence that concluded PTSD could cause eczema. The Board finds the examiner provided an opinion against the Veteran's claim supported with a clear rationale. Therefore his opinion provides highly probative evidence against the Veteran's claim that his current skin condition was due to his service-connected PTSD. In his June 2013 written brief the Veteran's representative included cites to websites which generally suggest PTSD causes or aggravates skin condition. The United States Court of Appeals for Veterans Claims (Court) has held that a general medical article or treatise such as this "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. See Mattern v. West, 12 Vet. App. 222, 228 (1999); Sacks v. West, 11 Vet. App. 314 (1998); and Wallin v. West, 11 Vet. App. 509 (1998). However, in the present case, the treatise evidence submitted by the Veteran's representative was not accompanied by the opinion of any medical expert. As such, the Board concludes that this information is insufficient to establish the required medical nexus opinion in this case. Therefore the Board finds the weight of the medical evidence establishes the Veteran's current skin conditions are less likely than not caused or aggravated by his service-connected PTSD. Based on all of the foregoing the Veteran's claim for service connection for his current skin conditions is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in April 2006, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above, however the letter did not inform the Veteran of the requirements of the Dingess court. Notice of how disability ratings and effective dates are established was subsequently provided in a July 2009 letter. The Veteran was given ample time to respond and his claim has been readjudicated several times after the subsequent notice was provided. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and service treatment records have been obtained, as have available private treatment records. As discussed above, the Veteran has alleged he received treatment from two private dermatologists shortly after returning from military service; however these records are not available due to the retirement of one doctor and death of the other. In addition Social Security records were sought, but the Social Security Administration responded they did not have any records for the Veteran. The Veteran was also provided with a hearing before the undersigned Veterans Law Judge (VLJ) in September 2011. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case the VLJ fully explained the issue on appeal during the hearing. The Veteran was assisted at the hearing by an accredited representative from the Veterans of Foreign Wars, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed skin conditions. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim. No additional pertinent evidence was identified by the Veteran or his representative. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Veteran was also provided with a VA examination (the report of which has been associated with the claims file). The Board finds the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examination. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The claim for service connection for a skin condition is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs