Citation Nr: 1324361	
Decision Date: 07/31/13    Archive Date: 08/07/13

DOCKET NO.  08-33 835A	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for a skin disorder, to include as due to herbicide exposure.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Counsel





INTRODUCTION

The Veteran, who is the appellant, served on active duty from September 1968 to September 1970, to include service in the Republic of Vietnam; and was awarded the Combat Infantry Badge.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  The claim is now in the jurisdiction of the Atlanta, Georgia, RO.

This case was remanded by the Board in August 2012.



FINDING OF FACT

A skin disorder is not shown to have been incurred in or aggravated by active duty military service, to include as due to herbicide exposure therein, nor was it caused or aggravated by his service-connected diabetes mellitus.



CONCLUSION OF LAW

The criteria for service connection for a skin disorder have not been met.  38 U.S.C.A. §§ 1110, 1116, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Duty to Notify

Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, the Veteran was sent a letter in November 2007 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  The letter also explained what type of information and evidence was needed to establish a disability rating and effective date.  Accordingly, no further development is required with respect to the duty to notify.

Duty to Assist

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished.  The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file.  These files together comprise the claims file.  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

In compliance with the Board's August 2012 remand, the Appeals Management Center (AMC) attempted to obtain outstanding VA medical records for the period since December 2007, but was informed by the facility where the reported treatment took place that there were no available records for 2007, the Appeals Management Center also searched VA's electronic records system ("CAPRI") and obtained treatment records beginning in 2008.  

The AMC also VA provided the Veteran with a medical examination in October 2012.  This examination, this examination did not address the role, if any, of the Veteran's herbicide exposure in causing his skin disease.

The June 2013 VHA opinion, included an opinion with regard to herbicides, and thereby remedied the deficiency in the October 2012 opinion.  It contained all information needed to decide the claim.  The examiner reviewed the evidence of record and documented the Veteran's current complaints.  Moreover, the VA examiners performed a thorough clinical evaluation, then offered opinions as to the nature of the claimed disabilities, accompanied by a rationale.  Therefore, this examination along with the June 2013 VHA opinion is adequate for VA purposes.  Thus VA has substantially complied with the August 2012 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998).

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran 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).

Principles of Service Connection

Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110. 

Generally, to establish service connection the evidence must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement.  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). 

Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury.  38 C.F.R. § 3.310(a)-(b) (2012); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).   

Exposure to Agent Orange 

Exposure to certain herbicide agents, include the one commonly referred to as Agent Orange, shall be presumed for any Veteran who, during active military service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975).  38 U.S.C.A. § 1116(f).  

If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected even though there is no record of such disease during service: 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), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e); 75 Fed. Reg. 53,202-53,216, 53,205 (Aug. 31, 2010). 

VA's Secretary has determined that a presumption of service connection based on exposure to certain herbicides, including Agent Orange, used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted.  Notice, 59 Fed. Reg. 341-346 (1994); 61 Fed. Reg. 41442-41449 and 57586-57589 (1996); 67 Fed. Reg. 42600-42608 (2002); 68 Fed. Reg. 27630-27641 (2003); 72 Fed. Reg. 32395-32407 (2007).

Notwithstanding the aforementioned provisions, a claimant is not precluded from establishing service connection with proof of direct causation.  Stefl v. Nicholson,21 Vet App 120 (2007); see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 
Evidentiary Standards 

VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159.

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.  38 C.F.R. § 3.159.

Competency of evidence differs from weight and credibility.  ; 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").  A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465, 470 (1994); see Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that, 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). 

When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b). 



Facts

Because the Veteran served in the Republic of Vietnam during the Vietnam era, he is presumed to have been exposed to herbicides such as Agent Orange.

Service treatment records contain no reports of skin abnormalities or pertinent complaints.

Private treatment records dated in November 2006, show that the Veteran reported skin symptoms that had begun eight months earlier and that were worse in the sun and in sun exposed areas.  A skin biopsy performed in November 2006, yielded findings suggestive of lupus erythematosus, with differential diagnoses of lichen planus or a lichenoid drug reaction.  

A VA treatment note in April 2007states that the skin lesions "may be discoid lupus as biopsy outside was suggestive."  A pathology report on another skin sample in September 2007 yielded a diagnosis of interface dermatitis with post-inflammatory pigment incontinence versus a fixed drug reaction.  (The record shows that the Veteran has been prescribed amlodipine, enalapril, HCTZ, loratadine, and omeprazole for non-service-connected disabilities.) 

The Veteran was provided with a VA skin examination in October 2012.  The Veteran reported that his skin lesions had first appeared in about 2000 when he began working in the construction industry and spent more time outdoors in the sun.  The lesions cause burning and itching sensations and occur only on parts of his body exposed to the sun, including his head, neck, ears, and arms.  The Veteran said he has seen other Vietnam veterans at the VA Medical Center treated for similar lesions which were attributed to herbicide exposure.  As a result, he believes that his skin condition is likely also the result of toxic exposure in Vietnam, and was only triggered, rather than caused, by his increased sun exposure.

One and two centimeter scars were observed on both forearms and on the Veteran's head and neck below the hairline.  The examiner noted that the Veteran had been diagnosed with probable discoid lupus based on the earlier pathology reports.  The examiner offered the opinion that the Veteran's current skin condition was not caused or aggravated by his military service because there was no documentation that the skin condition was treated in service.  

In June 2013, a dermatologist provided the requested VHA opinion.  After reviewing the file and consulting relevant medical literature, the VHA expert offered an opinion that the Veteran's current skin condition was less likely than not caused or aggravated by his military service, to include presumed exposure to herbicides in Vietnam.  The doctor based his opinion on the fact that the Veteran's type of skin disorder was not a presumptive disease for Agent Orange exposure, that there was no known link between herbicide exposure and this type of skin disorder, and that none of the information in the service medical records would support a link between the current skin disorder and service.  The doctor noted that the Veteran had been in the construction business for a long time after his two years of service and that the gap of more than 30 years between service and the first manifestations of skin disorder weighed against there being any connection to service.

The VHA dermatologist further opined that the Veteran's current skin disability was less likely than not caused or aggravated by his service-connected diabetes mellitus or any medication to treat that disability.  That opinion was based on the time between the diagnosis of diabetes and the diagnosis of skin disorder, the fact that the medical literature did not contain any evidence suggesting a causal link between discoid lupus erythematosus and diabetes, the fact that the symptoms of the skin disorder manifested prior to the prescription of any medication for diabetes and was not exacerbated by it, and the fact that neither of the medications was known to cause or aggravate this disability.

Analysis

The Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicides such as Agent Orange.  However, his specific skin disorder is not one of the conditions for which service connection is available on a presumptive basis under 38 C.F.R. §§ 3.307, 3.309.

The Veteran's current skin disorder was not manifested in service as reflected in service treatment records and in the Veteran's own statements.  Rather, it was first manifested some 30 years or more after service separation.  Therefore, the Board must consider service connection under the terms of 38 C.F.R. § 3.303(d), with respect to a disability first diagnosed after service, or under 38 C.F.R. § 3.310, wherein a disability is caused or aggravated by a service-connected disability.

There is no competent evidence of any connection between the Veteran's current skin disorder and his active duty military service, to include exposure to herbicides in Vietnam.  The Veteran's treating physicians have not provided any opinions or statements indicating such a link to service and the medical evidence of record denies any connection between service and the current skin disorder.  Nor is there any evidence which supports a causal link between the Veteran's service-connected diabetes mellitus and his current skin disorder.  Rather, the VHA expert specifically stated that the skin disorder was not caused or aggravated by diabetes mellitus based on the medical literature and on the time line for the Veteran's development of the skin disorder.

The VHA expert specifically considered the theory advanced by the Veteran that his exposure to herbicides in service had caused him to be more susceptible to the effects of the sun.  However, the expert found that this theory was not supported by the literature and observed that the relative effects of at most two years of exposure to herbicides, as compared to many years of sun exposure in construction work, were unlikely to be the cause of a skin disorder manifested more than 30 years afterwards.  The expert also considered the Veteran's contentions of increased exposure to herbicides because of their presence in the rivers and streams of Vietnam but again noted that the research did not show any link between the Veteran's skin disorder and herbicide exposure.



The Veteran has not provided any medical evidence to support his contentions.  He did report observing skin lesions similar in appearance to his own on other Vietnam veterans and having been told those were related to herbicide exposure.  

While the Veteran is competent to report his observations, he lacks the necessary medical expertise to say that the lesions he observed were the result of herbicide exposure, that his exposures made him more susceptible to skin damage from the sun, or that his current skin disease is related to the service connected diabetes.  His opinions on these matters are; therefore not competent evidence.  

Some of the Veteran's skin lesions were diagnosed as discoid lupus erythematosus only after performance of a biopsy and later, after another biopsy, other lesions were diagnosed as interface dermatitis.  As both diagnoses were arrived at after a scientific and medical examination of the skin, the Board determines that lay observation alone is not sufficient to arrive at a diagnosis, but that specialized medical training is required for a competent opinion.  Therefore, the Board assigns no evidentiary value to the Veteran's theories of causation.  38 C.F.R. § 3.159(a).
 
The Veteran is recognized as having served in combat in Vietnam.  He has not claimed service connection on the basis of any combat related injury; hence the presumptions of 38 U.S.C.A. § 1154(b) (West 2002); could not serve as a basis for establishing service connection in this case.

Based on the considerations set forth above, the Board finds that the preponderance of the evidence is against the claim of service connection for a skin disorder, to include as a result of herbicide exposure and as secondary to service-connected diabetes mellitus.  38 C.F.R. §§ 3.303, 3.310.  As such, the benefit-of-the-doubt standard of proof does not apply and the claim must be denied.  38 U.S.C.A. § 5107(b).



ORDER

Entitlement to service connection for a skin disorder, to include as due to herbicide exposure, is denied.


____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs