Citation Nr: 1324265 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 08-27 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a skin disorder, to include as secondary to herbicide exposure. 2. Entitlement to service connection for a skin disorder to include as secondary to herbicide exposure. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active military service from October 1968 to June 1970. The Veteran served on active duty for training (ACDUTRA) from April 1975 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2004 and July 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia, which denied the Veteran's claim for entitlement to service connection for a skin disorder. FINDINGS OF FACT 1. In June 2000, the RO denied the Veteran's claim of entitlement to service connection for a skin disorder, to include as secondary to herbicide exposure. 2. The evidence associated with the claims folder subsequent to the RO's June 2000 decision has not been previously submitted to agency decisionmakers, and when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service-connection for a skin disorder. 3. Service personnel records indicate that the Veteran entered Vietnam; herbicide exposure is conceded. 4. The Veteran's skin disorder did not have onset during service and is not otherwise related to service, to include exposure to herbicides. CONCLUSIONS OF LAW 1. The June 2000 RO decision denying the Veteran's service-connection claim for a skin disorder is final. 38 U.S.C.A. § 7105(c) (West 1991);38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999). 2. Since the June 2000 RO decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for a skin disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Actinic keratosis is not shown to be due to a disease or injury that was incurred in or aggravated by service; nor may it be presumed to have been incurred therein to include as due to herbicide exposure. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in August 2004 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. The Board notes that the Veteran has not been provided specific notice regarding VA's assignment of disability ratings and effective dates (which are applicable in the event that the Veteran's service connection claim is granted), as required under Dingess/Hartman. However, VA's failure to provide such notice has not been shown to be prejudicial to the Veteran in this case. In that regard, since the Board herein denies the Veteran's service connection claim, neither a disability rating nor an effective date for any assigned disability rating is to be assigned. Accordingly, there is no possibility of prejudice to the Veteran arising out of VA's failure to provide notice as to the assignment of disability ratings and effective dates. The Board has considered this legislation and case law with respect to the Veteran's application to reopen his previously disallowed service-connection claim for a skin disorder. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). Concerning the instant matter, given the favorable action taken below regarding the Veteran's application to reopen his skin disorder claim, the Board finds that further discussion of the VCAA is not required with respect to the claim to reopen. Any error in the duties to notify the Veteran of the evidence necessary to substantiate his application to reopen, and to assist him in the development of his claim to reopen is harmless. VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records and Social Security Administration (SSA) records have been associated with the claims file. All identified and available treatment records have been secured. The Board finds that VA has fulfilled its duty to assist in obtaining such records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). In this case, the Board notes that the Veteran was provided VA examinations in March 2005 and June 2011. During the March 2005 VA examination, the examiner found that the Veteran had a current diagnosis of actinic keratosis due to sun exposure. As will be discussed in greater detail below, the examiner's opinion was based on review of the claims file and available medical records, the Veteran's reported history, his current symptoms, and an objective psychiatric examination. The Board, therefore, finds the March 2005 VA examination report to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection for a skin disorder. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). I. New and Material Evidence claims A. Relevant law and regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2012). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of his claim has been fulfilled. See 38 U.S.C.A. § 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court of Appeals for Veterans Claims (the Court) has recently stated that the language of VA regulations does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. See Shade v. Shinseki, 24 Vet. App 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). B. Whether new and material evidence has been submitted to reopen a claim for service connection for a skin disorder, include as secondary to herbicide exposure. Originally, the Veteran filed a claim for service connection for a skin disorder due to herbicide exposure. In a June 2000 decision, the RO denied the Veteran's claim. The RO notified the Veteran of its decision and his appellate rights with regard thereto, but the Veteran did not appeal the decision to the Board. Therefore, June 2000 RO decision is final. 38 U.S.C.A. § 7105(c) (West 1991);38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999). The RO initially denied the Veteran's claim because service and post-service treatment records were negative for any indication of a skin disorder, to specifically include chloracne. Evidence added to the claims file since the June 2000 denial includes ongoing VA treatment records, a March 2005 VA examination report, and reports of continuity from the Veteran. Consequently, this evidence raises a reasonable possibility of substantiating the Veteran's claim for service connection for a skin disorder. Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for a skin disorder are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. To that extent, the appeal is granted. Claim for Service Connection for a Skin Disorder A. Relevant law and regulations In order to establish service connection for the claimed disorder, there must be (1) competent and credible 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) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The term 'Veteran' is defined in 38 U.S.C.A. § 101(2) as 'a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.' The term 'active military, naval, or air service' includes active duty, and 'any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty.' 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). Active duty for training (ACDUTRA) is defined, in part, as 'full-time duty in the Armed Forces performed by Reserves for training purposes.' 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). The term inactive duty training (INACDUTRA) is defined, in part, as duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of title 32 [U. S. Code] or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303, 3.304. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. VA regulations also provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era (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)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), including chloracne or other acneform diseases consistent with chloracne and porphyria cutanea tarda. 38 C.F.R. § 3.309(e). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also 61 Fed. Reg. 57,586 -57,589 (1996); 72 Fed. Reg. 32,345-32,407 (Jun. 12, 2007). Although AK is not listed in 38 C.F.R. § 3.307(a)(6)(ii), the Board will still consider the Veteran's claim on a direct service connection basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). B. Factual Background The Veteran claims that he should be granted service connection for a skin disorder due to exposure to sun and herbicides during active service. Service treatment records (STR), including examination reports dated in July 1968 and June 1970, are negative for any complaints or diagnoses of skin diseases. A February 1970 STR included treatment for an infected thumb and left index finger. The diagnosis was cellulitis. Post-service examination reports and associated reports of medical history dated in March 1974 and April 1975 are negative for complaints of skin diseases. A June 1975 ACDUTRA STR indicated a diagnosis of sunburn on the face. In a statement dated in July 1975, the Veteran asserted that since his last separation examination, there had been no change in his medical condition. In a February 1986 psychiatric admission note, the examiner noted that the Veteran complained of exposure to Agent Orange while in Vietnam; however, there is no medical illness or disability previously documented and none has been documented on the Veteran's admission to the Psychiatry Unit. The Veteran's physical examination was significant for a very stocky, muscular white male in no distress and with no remarkable physical findings. A review of symptoms was negative except for complaints of "athlete's foot." A VA dermatology note dated in July 1986 reported dermal surfaces show no specific dermatoses or rashes. In a September 1991 VA psychiatric admission note, the Veteran had an Axis III finding of pruritus. A December 1993 VA progress note indicated a significant amount of actinic keratosis (AK) on the back of the hands, arms, face and upper chest. The examiner noted nothing looked like active AK. The Veteran complained he itched all over all the time and that he has been doing this for several years. The examiner noted that there was nothing to suggest urticaria or cholinergic urticaria. The examiner also noted that because of Agent Orange exposure and because of the fact that his skin findings were insignificant as far as explaining the itching, he needed a full evaluation by an internal medicine specialist and he would need to have a full workup for pruritus of systemic origin. A February 1998 VA progress note indicated the Veteran was followed-up due to a "boil" on his neck for the last two years. During a February 1999 VA examination, the Veteran's skin was found to be normal. In a March 1999 VA progress note, the Veteran reported he served in Vietnam. He complained of skin problems including bumps and blisters on the trunk and residuals scars. The Veteran reported that he had a soft tissue infection during service and that he moved helicopters in the field immediately after they sprayed herbicides. He was working as a part time route mail carrier. The examiner noted skin evidence of chloracne. A May 1999 VA dermatology note indicated that the Veteran had crusted lesions on his forearms since returning from Vietnam in 1970. He admitted to chronic sun exposure for several years and that he uses sunscreen on his exposed areas of skin. The diagnosis was AK on the upper extremities. In a September 1999 VA progress note, the Veteran was followed-up for AK. He also requested treatment of a "wart" on his left index finger of approximately 30 years duration. The diagnosis was AK on the upper extremities and verruca of the left index finger. A July 2001 private lab report indicated a diagnosis of well differentiated squamous cell carcinoma. In a March 2004 VA history and physical examination prior to hospitalization for psychiatric issues, the examiner reported chronic red scaly areas of both upper extremities and neck, which are pruritus. The Veteran claimed this has occurred since leaving Vietnam. In a March 2004 VA dermatology consultation, the Veteran reported a history of chloracne diagnosis. The examiner noted eczema, probably super imposed on solar damage and AK. During a March 2005 VA examination, the Veteran reported that the eruption of his skin in 1969 was due to Agent Orange exposure and was called chloracne. The rash, during that time involved the exposed areas of the arms including hands, neck, and head. The skin became irritated, red, swollen, and he was so sick he was examined in the field. He was treated with IV antibiotics and released back to duty. The skin rash improved but persisted. The Veteran asserted that the rash since 1969 has been constant with periods of improvement and exacerbation. He has been treated by different providers with oral and topical antibiotics and topical cortisone cream and ointment. After a physical examination, the diagnoses were moderate to severe AK and actinic dermatosis of the exposed areas to the sun. The diagnosis of AK was already documented on the Veteran' medical records that were found through the computer records system dated in April 2002. In a September 2006 statement, the Veteran asserted that his skin disorder was due to Agent Orange exposure and not to exposure to sunlight. He was treated in Vietnam for a skin disorder, though he was told it was a blood condition. The Veteran asserted he did not have the skin condition before he went in to the service, but he had it when he left. He was also exposed to excessive sunlight while in Vietnam and this may have caused it. A VA general medical examination report dated in June 2011 included findings of solar damage on the face. Additional VA progress notes dated through August 2011 include ongoing treatment for solar AK. C. Analysis With regard to granting service connection for a skin condition on a presumptive basis as related to in-service exposure to Agent Orange or herbicides, the Board notes that a single VA treatment records dated in March 1999 indicates evidence of chloracne. However, as the Veteran filed his claim in 2004, this diagnosis is outside of the appeals period, and at no time during the appeals period has chloracne, or any other presumptive skin disorder been diagnosed. Cf. McClain v. Nicholson, 21 Vet. App. 319 (2007) (finding that the "current disability" requirement is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim.") The Board finds the evidence weighs against a current diagnosis of chloracne. For the skin disorders diagnosed during the appeals period, the Board notes that AK, squamous cell carcinoma, and pruritus are not among the list of diseases presumed to be associated with exposure to herbicides or Agent Orange. 38 C.F.R. § 3.309(e) (2012). As such, service connection cannot be granted for any of the Veteran's currently diagnosed skin conditions or diseases as presumptively associated with in-service exposure to Agent Orange or herbicides. With regard to granting service connection on a direct basis, the Board notes that the first indication of a chronic skin disorder is located in VA treatment records dated December 1993, more than 35 years after separation from service, weighing against a claim of service connection based on continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting the lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). The Board recognizes that the Veteran was diagnosed with sunburn during his period of ACDUTRA. However, there is no evidence that the Veteran's current AK was incurred in active service to include sunburn during ACDUTRA. None of the records indicating diagnosis and treatment of a chronic skin disorder indicate a relationship between the condition and service or herbicide exposure. The Board recognizes the Veteran assertions in multiple letters that he has had a rash since his treatment for cellulitis during active duty service. The Board finds it significant; however, that he specifically denied any history of skin problems at separation. Furthermore, a July 1986 VA dermatology note indicated dermal surfaces show no specific dermatoses or rashes. For these reasons, the Board must find the assertions of the Veteran that he began experiencing chronic symptoms in service not credible. In this regard, the Board is mindful of the decision in Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006), wherein the United States Court of Appeals for the Federal Circuit determined that the Board erred by finding that a claimant's report of in-service symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time. The instant case, however, is distinguishable from Buchanan in that the Board is not relying solely on the fact that there are no documented complaints regarding a left hand disorder for two decades after service. Rather, the Board is relying also on the fact that the Veteran specifically denied a history of skin problems at separation and the negative findings of a VA dermatologist in 1986. Thus, the record in this case does not merely reflect a lack of documentation pertaining to the claimed disability, but instead, it contains an instance in which the Veteran specifically denied having any relevant symptoms and physical findings which contradict the Veteran's claims. Thus, there is affirmative evidence, rather than merely a lack of contemporaneous evidence. Consequently, the Board concludes that the current assertions by the Veteran as to experiencing a continuity of symptomatology since service are not credible. Having found that there is no credible evidence of a continuity of symptomatology since service, the Board finds that the Veteran, as a lay person, is not otherwise competent to link his current skin disorder to either his active service or to herbicide exposure. With specific regard to the wart that was treated in 1999, the Board finds that there is simply no lay or medical evidence in the record showing that the Veteran's wart was incurred during, or is otherwise related to, service. In that regard, the Board notes an etiology opinion is not expressed anywhere in the record. Though the Veteran reported he had the wart for 30 years, there is no evidence showing that the wart has persisted or spread, thereby manifesting as an ongoing and current disability. Under the circumstances, there is simply no basis in the record to support the grant of service connection for wart of the left hand. In summary, considering the medical evidence of record, and the Veteran's testimony, and all evidence of record, the Board finds that the preponderance of the evidence of record is against a grant of service connection for a skin disorder. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); See Gilbert, 1 Vet. App. 49. ORDER New and material evidence has been received to reopen a claim for service connection for a skin disorder, to include as secondary to herbicide exposure; to that extent, the appeal is granted. Entitlement to service connection for a skin disorder, to include as secondary to herbicide exposure is denied. ______________________________________________ LANA K. JENG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs