Citation Nr: 1323929 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 07-10 040A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a chronic skin disorder, to include as due to herbicide exposure (excluding previously service-connected skin disabilities of squamous cell carcinoma of the lip, a scar due to removal of squamous cell carcinoma of the lip, a scar due to basal cell carcinoma of the right chest, and actinic keratosis). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to February 1968 and from February 1975 to January 1991. His awards and decorations included the Bronze Star Medal with Combat V, the Joint Service Commendation Medal with Combat V, and the Purple Heart Medal. This appeal to the Board of Veterans' Appeals (Board) is from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The decision granted service connection for several skin disabilities: (1) scar due to removal of squamous cell carcinoma of the lip, assigned a 0 percent disability rating; (2) scar due to removal of basal cell carcinoma of the right upper chest, assigned a 0 percent rating; and (3) actinic keratosis, assigned a 0 percent rating). This decision also denied the Veteran's service-connection claim for a skin condition on the feet and back, which he then appealed to the Board. The Veteran testified at a videoconference hearing in February 2009, before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record and associated with the claims file. At his hearing, the Veteran raised the issue of herbicide exposure, and clarified that his current skin disorder affects his entire body, not just his back and feet. See February 2009 Hearing Transcript (T.) at 5, 8. Thus, as noted on the title page, the Board has recharacterizing the skin disease claim to include any chronic skin disabilities that also have been claimed and diagnosed (e.g. recurrent MRSA infections, dermatitis, not otherwise specified (NOS), etc.); however, the present claim must exclude from consideration the already service-connected skin disabilities, listed above. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009). In April 2009, November 2010, March 2012, and December 2012, the Board remanded the case to the RO, via the Appeals Management Center (AMC), for additional development and consideration. FINDINGS OF FACT 1. The Veteran had service in the Republic of Vietnam during the Vietnam War, and exposure to herbicides is presumed. 2. Dermatitis to include disorders such as rashes, venereal warts, tinea versicolor, ringworm, and MRSA are not disabilities presumed by VA to be related to exposure to herbicide agents used in Vietnam; and, the competent and credible evidence of record shows that any skin disorder manifested in service was acute and transitory and resolved without residual disorder. 3. The competent and credible evidence of record fails to establish that the Veteran's skin disorder such as dermatitis and MRSA manifested in service or are etiologically related to the Veteran's active service, to include herbicide agents. CONCLUSION OF LAW Chronic skin disorders (excluding previously service-connected skin disabilities of squamous cell carcinoma of the lip, a scar due to removal of squamous cell carcinoma of the lip, a scar due to basal cell carcinoma of the right chest, and actinic keratosis)were not incurred in or aggravated by active duty service, nor may any chronic skin disorders be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110 , 1111, 1113, 1116, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Before addressing the merits of the issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b) ; Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.App. 112 (2004); Quartuccio v. Principi, 16 Vet.App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in January 2005 of the criteria for establishing service connection, and in May 2009 for the evidence required for service connection due to herbicide exposure, and VA's respective duties for obtaining that evidence. He also was notified in March 2006 of how VA determines disability ratings and effective dates if service connection is awarded. These letters accordingly addressed all notice elements and the January 2005 and March 2006 letters predated the initial adjudication by the AOJ/RO in July 2006. The matter was readjudicated in a March 2008 Supplemental Statement of the Case (SSOC). Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) Next, VA has a duty to assist a veteran in the development of the claims. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The RO obtained the Veteran's service treatment records, and VA treatment records. He submitted private treatment records and personal statements in support of his appeal. The Veteran underwent VA examinations in December 2009, with addendum in March 2012, May 2012, and April 2013 in connection with this claim. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examinations were adequate, providing an addendum when necessary, and were predicated on a full reading of the Veteran's medical records in the claims file. All of the pertinent evidence of record was considered, to include his statements, and the examiner provided a rationale for the opinion stated, relying on and citing to the records reviewed. The Veteran was provided an opportunity to set forth his contentions during a hearing, and provided a testimony at a Videoconference hearing before the undersigned VLJ in February 2009. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the RO Decision Review Officer or VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties 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. Here, the VLJ identified the issue on appeal. He sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Therefore, not only was the issue "explained in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. As such, the Board finds that, consistent with Bryant, compliance was made with the duties set forth in 38 C.F.R. 3.103(c)(2) and the Board can adjudicate the claim based on the current record. In view of the foregoing, the Board finds no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Direct service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (2012) are also satisfied: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes, Hodgkin's disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, Acute and subacute peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2012). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy 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). The Veteran's records establish that he had active service in the Republic of Vietnam within the presumptive period specified above. As such, it is presumed that the Veteran was exposed to an herbicide agent during active service. See 38 C.F.R. § 3.307(a)(6)(iii). Despite his presumed exposure to an herbicide agent, presumptive service connection under 38 C.F.R. § 3.307(a)(6) is still not for application. Service connection is only warranted on this basis for a specific list of diseases set forth under 38 C.F.R. § 3.309(e). As the Veteran's diagnosed tinea versicolor, ringworm, dermatitis, and MRSA are not among those listed under 38 C.F.R. § 3.309(e) an award of presumptive service connection based on herbicide exposure is not warranted. There is also no evidence, nor is it argued, that the Veteran has been diagnosed as having chloracne. Next, where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that a Veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the evidence does not show a causal relationship between the claimed skin disorder and in-service herbicide exposure or to any other incident of active service, as will be discussed below. Service treatment records reflect that the Veteran was treated for several skin disorders to include rashes, a groin rash, malaria, scabies, venereal warts, axilla skin tag, and multiple erythematous popular lesions. On retirement examination in October 1990, the Veteran's skin was clinically evaluated as normal. No skin disorders were noted at that time other than those which are currently service-connected. On the Veteran's initial VA examination from service in August 1991, examination of the skin proved negative. No diagnoses related to a skin disorder was made. A July 2004 VA treatment record stated that the Veteran was diagnosed with not otherwise specified dermatitis. In an October 2004 claim for service connection, the Veteran advanced that warm weather exacerbated his chronic skin disabilities. The Veteran underwent a VA dermatological examination in August 2005. Those findings were confined to examination related to the Veteran's skin cancers for which he is already service-connected. A January 2009 VA treatment record indicated the Veteran had a history of chronic folliculitis. He clarified that "he picked it up in southeast Asia in the Air Force." He was diagnosed with chronic recurrent folliculitis. The Veteran testified at a videoconference hearing before the undersigned VLJ in February 2009. He testified that he initially manifested a chronic skin disorder while in Vietnam. In a February 2009 VA treatment note, the Veteran had a culture return that was positive for MRSA. Pursuant to the Board's April 2009 Board remand, the Veteran underwent a VA examination in December 2009. MRSA culture was positive and the Veteran was diagnosed with MRSA. The examiner opined that the Veteran's MRSA was not the result of military service. The rationale was that this was not a condition that was recognized as being associated with Vietnam service and the Veteran had onset of the disease years after service discharge. In March 2012, an addendum to the December 2009 VA examination was provided. The examiner opined, in pertinent part, that the Veteran's current MRSA infections are less likely than not due to any MRSA infections he may have had in service. The rationale provided was that the evidence of record shows that the Veteran experiences infections which resolve on therapy after which he returns to baseline, that is, there is no evidence of chronic infection. According to the examiner, each infection is a separate event. There is no evidence that the Veteran has been colonized with a unique, specific strain of MRSA which has been impossible to eradicate. It has been inferred that the Veteran's first infection manifested in service and that all subsequent infections are due to or are derived from that infection. The examiner disagrees with this interpretation. The Veteran underwent a VA examination in May 2012. Those examination results showed the Veteran's only skin disorder presented were those skin cancers for which he has already been awarded service connection. In April 2013, the Veteran underwent an additional VA dermatology examination. That examination concluded, that there were no additional skin conditions other than those already described in the prior VA examination. A thorough review of the claims folder showed that any skin disorders in service such as tinea versicolor, ringworm, rashes and the like, were acute and transitory and resolved without residual disability. At the time of retirement from service, there were no findings, or diagnoses of any of these skin disorders and his skin was found to be clinically normal. Post-service evidence does not reflect symptomatology associated with a skin disorder (other than those already service-connected) for many years after separation from service. Specifically, the Veteran's initial VA examination after service in August 1991, was devoid of complaints or findings related to his claimed skin disorders. Not until October 2004 was there a complaint or claim made for service connection for skin disorders other than those already service-connected. Therefore, the objective medical evidence does not reflect continuity of symptomatology as it relates to a chronic skin disorder, to include as due to herbicide exposure (excluding previously service-connected skin disabilities of squamous cell carcinoma of the lip, a scar due to removal of squamous cell carcinoma of the lip, a scar due to basal cell carcinoma of the right chest, and actinic keratosis). In addition to the absence of documented post-service symptomatology related to a skin disorder for many years after service, the evidence includes the Veteran's statements asserting continuity of symptoms with respect to this disorder. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet.App. 67, 74 (1997); Layno v. Brown, 6 Vet.App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, there is no dispute that the Veteran is competent to report symptoms of skin problems he experiences because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet.App. 465, 470 (1994). 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination. However, the Board finds that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not credible. The Veteran's reported history of continued symptoms since Vietnam service is simply inconsistent with the other evidence of record. Notably, the Board's attention is drawn to a statement the Veteran provided at his videoconference hearing, indicating that he had the present skin disorder since Vietnam. However, his first VA examination made after service, in August 1991, was silent for any skin complaints and moreover, examination of his skin at that time, was negative. The Board finds this examination, which was made for the purposes of assessing his health, and well in advance of his claim for benefits in 2004, to be highly probative. Rucker v. Brown, 10 Vet.App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). It also weighs heavily against his current assertion of experiencing chronic skin problems since Vietnam. Curry v. Brown, 7 Vet.App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Moreover, and while not dispositive, the Board emphasizes the multi-year gap between discharge from active duty service (1990) and initial reported symptoms and diagnosis in 2004, 14 years after service separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (indicating that "evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the [V]eteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service"). The Veteran has provided no explanation as to why he delayed filing a claim for over 14 years. See Shaw v. Principi, 3 Vet.App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). Accordingly, the Board finds the Veteran's statements asserting continuity of symptomatology since service lack credibility and are without probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet.App. 341 (1999) (although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements). Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's skin disorder to service, despite his contentions to the contrary. No medical professional has established a relationship between this disorder and active duty. Only his already service-connected disability has been attributed to service, which relates specifically to his skin cancer disability. The Board has also considered the Veteran's statements asserting a nexus between his currently-diagnosed skin disorder and active duty service, to include exposure to herbicides. The Board reiterates that he is competent to report symptoms as they come to them through his senses. However, MRSA is not the type of disorders that a lay person can provide competent evidence on questions of etiology or diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). The Veteran simply lacks the competency to render an opinion as to the etiology of this disorder. Therefore, the Veteran's unsubstantiated statements regarding the claimed etiology of his skin disorder, to include as being the result of exposure to herbicides, are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for a chronic skin disorder (excluding previously service-connected skin disabilities of squamous cell carcinoma of the lip, a scar due to removal of squamous cell carcinoma of the lip, a scar due to basal cell carcinoma of the right chest, and actinic keratosis), to include as due to herbicides, and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER Service connection for a chronic skin disorder, (excluding previously service-connected skin disabilities of squamous cell carcinoma of the lip, a scar due to removal of squamous cell carcinoma of the lip, a scar due to basal cell carcinoma of the right chest, and actinic keratosis), to include as due to herbicide exposure, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs