Citation Nr: 1324376	
Decision Date: 07/31/13    Archive Date: 08/07/13

DOCKET NO.  10-11 211	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas


THE ISSUE

Entitlement to service connection for a skin disorder, to include as secondary to agent orange exposure.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

L. Durham, Counsel

INTRODUCTION

The Veteran had active military service in the United States Marine Corps (USMC) from June 1967 to April 1970.  During this period of active military service, he served in the Republic of Vietnam (RVN) from December 1967 to March 1968.  He also served in the United States Army from January to September 2003.  The Veteran was awarded, in part, the Combat Action Ribbon and Purple Heart Medal.  In-between his two periods of active military service, the Veteran served in the United States Army Reserve. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of VA RO in Houston, Texas.  By that rating action, the RO, in part, confirmed and continued its previous denial for service connection for skin disabilities.  The Veteran appealed the RO's April 2007 rating action to the Board. 

In March 2011, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at the RO in Houston, Texas.  A copy of the hearing transcript has been associated with the claims file.

The Board notes that, 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) (2012) requires that the VLJ/Decision Review Officer (DRO) who chairs a hearing fulfill two duties to comply with the above the 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 fully explained the issues on appeal during the hearing.  Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claim.  Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  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).

This issue was remanded by the Board for further development in June 2011 and January 2013.


FINDING OF FACT

A skin disorder is not etiologically related to a disease, injury, or event in service, to include in-service exposure to agent orange.


CONCLUSION OF LAW

A skin disorder was not incurred in or aggravated by active military service, and may not be presumed to have been caused by service.  See 38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  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. 2009); 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 claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 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 Court held that VA 
must inform the claimant of any information and 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. 

VCAA letters dated in August 2004, October 2006, February 2007, and July 2009 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187.  The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim.  These letters 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.  Additionally, these letters notified the Veteran as to how appropriate disability ratings and effective dates are assigned.  

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's available service treatment records and relevant VA and private medical records are in the file.  The Board finds that all available records identified by the Veteran as relating to this claim have been obtained, to the extent possible.  The record contains sufficient evidence to make a decision on the claim.  VA has fulfilled its duty to assist.

With regard to claims for service connection, 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.  38 C.F.R. § 3.159(c)(4)(i) (2012).  The Veteran was provided a VA examination for his skin condition claim most recently in March 2013.  The examiner reviewed the claims files, conducted the appropriate diagnostic tests and studies, and noted the Veteran's assertions.  The Board finds this examination report and accompanying opinion to be thorough, complete, and sufficient upon which to base a decision with regard to this claim.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (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).  

II.  Analysis

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
	
Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131 (West 2002).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b) (2012).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d) (2012).

To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  
The Board notes that the term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) 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 for training (INACDUTRA) during which the individual concerned was disabled or died (i) from an injury incurred or aggravated in line of duty; or (ii) from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.  38 U.S.C.A. § 101(24) (West 2002 & Supp. 2009); 38 C.F.R. § 3.6(a) (2012). 

The term "active duty for training" is, inter alia, full- time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any State.  38 U.S.C.A. § 101(22) (West 2002 & Supp. 2009); 38 C.F.R. § 3.6(c) (2012).  The term "inactive duty for training" means, inter alia, duty other than full-time duty prescribed for Reserves or the National Guard of any State.  38 U.S.C.A. § 101(23) (West 2002 & Supp. 2009); 38 C.F.R. § 3.6(d) (2012).  It follows from this that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from injury incurred or aggravated while performing INACDUTRA.  38 U.S.C.A. §§ 101, 106, 1110, 1131 (West 2002 & Supp. 2009).

For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a Veteran who, during active military, naval, or air service, served in the RVN between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service.  38 U.S.C.A. § 1116(f) (West 2002).  Moreover, 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, with an exception not applicable to this case.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(ii).  These diseases include AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, all chronic B-cell leukemias, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease, 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 sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e) (2012).

Notwithstanding the foregoing presumptive provisions, the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation.  See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994).  See also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 2000).

The Veteran contends that he has a skin disorder as the result of having been exposed to agent orange during active military service in the RVN.  

The evidence of record reflects that the Veteran served in the RVN from December 1967 to March 1968.  As such, in-service exposure to herbicides or agent orange is conceded.

A review of the service treatment records from June 1967 to April 1970 reveals no complaints, treatment, or diagnoses of a skin condition. 

Post-service medical evidence reflects that the Veteran has been diagnosed with a current skin disability--an evanescent rash.  (See September 2006 report, prepared by S. M., M. D.).  That same report contains Dr. S. M.'s assessment that the Veteran's evanescent rash was not typical of an agent orange skin rash which he would have expected to have been in acneform and "loc.on post neck."  (See September 2006 report, prepared by S. M., M. D.)  However, in formulating his assessment, Dr. S. M. did not review the Veteran's complete medical history, to specifically include a February 2003 service treatment record, reflecting that he had complained of a skin condition due to agent orange.  At that time, the examining physician's assistant reported that he might have had contact dermatitis on his forearm.  Additionally, the claims file contains November 2003 and November 2004 VA treatment records, in which the Veteran complained of a generalized rash with itch and pain lasting a day or 2 at a time and indicated that he believes it is related to agent orange exposure in the past.  Therefore, the Board remanded this issue in June 2011 in order to afford the Veteran a VA skin examination to determine whether any current skin disability is related to, or had its onset during, his initial period of active military service, to include his presumed exposure to agent orange in the RVN. 

The Veteran underwent a VA examination in July 2011.  The examiner reviewed the claims file.  The Veteran reported that his rash began a couple of years after he was out of the service.  He indicated that it was most severe when it first started.  The rash last appeared a few months ago.  It usually lasts for 7-10 days and occurs on lateral fingers, upper back, thighs, and lower legs.  The examiner noted that the history sounds most consistent with eczema.  The recurrent blisters on the lateral fingers is classic for dyshidrotic eczema.  Patients with dyshidrotic eczema can also have eczema without blisters on other areas of the body.  The differential diagnosis does also include contact dermatitis.  Based on the history and timing of the recurrent rash, the examiner determined that it is less likely as not (less than 50/50 probability) caused by or a result of his military service.  The examiner noted that eczema is a common dermatologic problems.  

In light of the fact that the Board expressly requested in the June 2011 remand that the examiner consider the Veteran's agent orange exposure in rendering any opinions, and the July 2011 VA examiner did not provide any commentary on this exposure, the Board found in a January 2013 determination that VA had not substantially complied with the remand directives and remanded for further examination.  

As such, the Veteran underwent another VA examination in March 2013.  The examiner reviewed the claims file and noted a diagnosis of dyshidrotic eczema as of 2011.  The Veteran recalled episodes of rash over his body since he came back (and not while he was there) from Vietnam military service in the 1970s.  He reported that he was exposed to agent orange, with the rash moving from the back of the neck, to the arms, to the thighs, and to the lower legs.  The Veteran reported that the skin rash was not provoked by a known cause, such as environment nor food, and the Veteran has no medication allergy.  He reported that he last saw the rash on the back of his neck about 6 months ago.  The examiner determined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.  The examiner further noted that the Veteran's skin disability is less likely to have its onset during, or be etiologically related to, his active military service, to include his presumed exposure to agent orange during his service in the RVN from December 1967 to March 1968.

With regard to the rationale for his opinion, the examiner noted that the examination record of February 2003 concluded what the Veteran "might have had."  The key words indicate that it was not present on clinical examination.  The examiner noted that a September 20, 2006, outside dermatology note remarked that the "rash is not currently present."  Similarly, a July 11, 2011, compensation examination report noted "Skin - the face, trunk, arms and hands appear normal" and suggested the Veteran had dyshidrotic eczema (or dry skin).  The examiner further stated that "[y]ou cannot have a crime without the evidence.  You cannot have a skin condition unless it is physically present on examination.  Examinations to date have failed to show any skin condition except dry skin (as proof, colored photographs were taken of the affected area to show no other skin diseases - as the Veteran claims).  

As an initial matter, the Board notes that the Veteran indicated at his March 2011 hearing that he had been in Saudi Arabia.  However, as the Veteran did not specifically indicate that he was in Saudi Arabia on active military duty, and his personnel records reflect that he served in Uzbekistan and Afghanistan from February 2003 to August 2003, the Board need not consider service connection for the Veteran's claimed disability as due to an undiagnosed illness under 38 C.F.R. § 3.317.

With regard to granting service connection for a skin disorder on a presumptive basis as related to in-service exposure to agent orange or herbicides, the Board notes that the Veteran has not been diagnosed with a skin disability that is among the list of diseases presumed to be associated with exposure to herbicides or agent orange.  38 C.F.R. § 3.309(e) (2012).  Under the authority granted by the Agent Orange Act of 1991, the Secretary of VA specifically determines, based on reports of the National Academy of Sciences (NAS) and other medical and scientific studies, diseases that may be presumed to have been caused by exposure to herbicidal agents.  As the Veteran has not been diagnosed with a skin disability on this list of diseases, service connection cannot be granted for a skin disability as presumptively associated with in-service exposure to agent orange or herbicides.

With regard to granting service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. 3.303(d) (2012).  The March 2013 VA examiner considered the Veteran's agent orange exposure and determined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.  The examiner further noted that the Veteran's skin disability is less likely to have its onset during, or be etiologically related to, his active military service, to include his presumed exposure to agent orange during his service in the RVN from December 1967 to March 1968.  In rendering this opinion, the examiner noted the Veteran's exposure to agent orange and commented on the February 2003 service treatment record and the September 2006 post-service treatment record, as specifically requested in the January 2013 remand.  The claims file contains no medical evidence to the contrary. 

Moreover, the Veteran himself specifically reported that his claimed rash began a couple of years after he was out of the service.  While the claims file contains a February 2003 service treatment record reflecting that the Veteran complained of a skin condition due to agent orange, there is no indication that the Veteran was intending to assert that this skin condition had an onset in February 2003.  In fact, the Veteran specifically stated at the June 2011 VA examination that his condition first began a couple of years after he was out of the service.  As noted above, the Veteran was first discharged from service in 1970.  Therefore, with no medical evidence linking a current skin condition to service and no lay evidence reporting a continuity of symptomatology that began during his active service, the Veteran's claim for service connection for a skin disorder must fail on a direct basis.  See Shedden, supra. 

Additionally, the Board notes that, with regard to the Veteran's service in the Reserve, the Veteran's chronic skin condition would not qualify as an injury so as to afford service connection based on a period of INACDUTRA.  

With specific regard to lay assertions regarding his skin condition, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Regarding nexus, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology.  See id., at 1376-77.  In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).
Here, the Veteran's skin complaints are certainly capable of lay observation, in so far as to establish that he has a skin rash of some sort.  However, the Board finds that the cause of any currently diagnosed skin disabilities are not capable of lay observation.  Specifically, the Board finds that, as a lay person, he is not competent to link a skin condition to agent orange exposure.  This is because he does not have training with regard to the effects of agent orange exposure.  As such, while the Veteran's opinion is provided some weight as to duration of his symptoms, his opinion is afforded no weight in the analysis of whether a nexus between a current disability and agent orange exposure exists.  

By contrast, the March 2013 VA medical professional who reviewed the Veteran's medical and military histories has offered an opinion with supporting explanation as to why in his judgment the Veteran does not have a skin disability related service.  As explained above, there are no medical opinions to the contrary.  For these reasons, the Board places the most significant weight on the March 2013 VA medical opinion, which finds against service connection.  

As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for a skin disorder must be denied.  See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for a skin disorder, to include as secondary to agent orange exposure is denied.




____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs