Citation Nr: 1325288	
Decision Date: 08/09/13    Archive Date: 08/13/13

DOCKET NO.  11-29 549	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for chloracne.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Eli White, Associate Counsel



INTRODUCTION

The Veteran served on active duty from May 1967 to April 1971.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee. 

The Veteran requested a videoconference hearing in his October 2011 substantive appeal.  Of record is an August 2012 letter sent to the Veteran's address of record noting the date, place, and time of the videoconference hearing.  VA subsequently received an October 2012 letter from the Veteran's representative acknowledging the Veteran's failure to report for the hearing and requesting that the Board make a determination based on the evidence of record.  


FINDING OF FACT

The Veteran's chloracne manifested to a compensable degree within one year after he last served in Vietnam.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for chloracne have been met.  38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(e), 4.118 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating claims 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).  In the present case, the grant of service connection of chloracne constitutes a complete grant of the benefits sought on appeal.  As such, any defect with regard to VA's duty to notify and assist the Veteran with the development of his claim is harmless error, and no further discussion of VA's duty to notify and assist is necessary.  

The Veteran contends that exposure to Agent Orange during service in the Republic of Vietnam caused his chloracne disability.  For this reason, he asserts that he is entitled to service connection for chloracne.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012).  Generally, to establish entitlement to service-connected compensation benefits, 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."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

A veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence of non-exposure.  38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012).  The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam in the Vietnam era.  The availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis.  See 38 U.S.C.A. 
§ 1113(b); 38 C.F.R. § 3.304(d); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

If a Veteran was exposed to an herbicide agent, such as Agent Orange, during active service, certain listed diseases, including chloracne, are presumptively service-connected if the requirements of 38 C.F.R. §§ 3.307(a)(6) and 3.307(d) are also satisfied, even if there is no record of such disease during service.  38 C.F.R. 
§ 3.309(e).  

In order for the diseases at § 3.309(e) to be presumed service connected, the diseases 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 service.  38 C.F.R. § 3.307(a)(6)(ii) (2012).  

Skin disorders are rated under 38 C.F.R. § 4.118, Diagnostic Codes (DC) 7800 - 7833.  Under DC 7829, which provides the ratings for chloracne, a ten percent evaluation is assignable for deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or deep acne other than on the face or neck.  38 C.F.R. § 4118, DC 7829.  

In light of the foregoing, in the present case, entitlement to service connection for chloracne due to Agent Orange exposure may be granted by showing three elements: (1) that the Veteran served in the Republic of Vietnam during the Vietnam era; (2) that the Veteran has a current chloracne disability; and (3) that his chloracne manifested to a degree of 10 percent or more within a year after he was last exposed to Agent Orange.  See 38 U.S.C.A. § 1116(f); 38 C.F.R. 
§§ 3.307(a)(6)(ii); 3.309(e).

As an initial matter, the Veteran's service records document that he served in the Republic of Vietnam from November 1969 to September 1970 and he is therefore presumed to have been exposed to Agent Orange.  The Veteran also has a current diagnosis of chloracne, as documented in an April 2010 VA examination.  

Having determined that the Veteran was exposed to Agent Orange in service and has a current disability, the Board will next consider whether the Veteran's chloracne manifested to a degree of 10 percent or more within a year after his last exposure to Agent Orange. 

The Veteran's service treatment records are absent of any reports of symptoms or treatment involving his skin during service.  His separation report of medical examination shows a normal clinical evaluation of his skin.  

In his January 2010 claim, the Veteran stated that he began having problems with the skin on his face, neck, ears, and back in May 1971, shortly after leaving the military.  The Veteran additionally stated that he has had hives removed from his body on several occasions.  Accompanying the Veteran's claim was a January 2010 statement from Dr. Byers of the Vanderbilt University Medical Center verifying that the Veteran has a skin condition on his face consisting of acneiform papules, blackheads, and whiteheads, and opining that "[i]t is certainly plausible that [the Veteran's] condition arose from Agent Orange exposure."  

In an April 2010 VA examination, the examining physician diagnosed the Veteran with chloracne.  The physician recounted the Veteran's statements regarding his skin condition, including his description of his symptoms and onset.  The symptoms described by the Veteran included ringworm, hives, rashes, acne, blackheads, whiteheads, and cysts on the face, neck, back, arms, and upper chest.  The examiner additionally noted that the Veteran has had at least three to four cysts removed by surgical excursion.  Based on his examination of the Veteran, a review of the Veteran's history of exposure to Agent Orange, and the Veteran's description of the severity and onset of his skin problems within a year of his return from the Republic of Vietnam, the examining physician opined that the Veteran's chloracne "is more likely than not to be related to his service in Vietnam."  

Based on the foregoing, the Board finds that the Veteran's lay statements are competent to establish that his chloracne manifested to a degree of 10 percent or more within a year of his last exposure to Agent Orange.  The Court of Appeals for the Federal Circuit has provided guidance for determining what kinds of lay evidence is competent as evidence, stating as follows: "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition, (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) 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).  

The Veteran's statements identifying the onset of his skin condition as May 1971, and further describing its manifestation as hives, acne, and cysts covering his hands, neck, back, face, and ears are competent, as the knowledge of such symptoms and characteristics are within the competency of a lay person.  See Id., at n.4 (lay persons are competent to identify simple conditions, such as a broken leg).  The Veteran reported that he mainly expressed the cysts himself and that several required surgical excision, thus indicating he has deep inflamed nodules and pus-filled cysts.  There is no reason to doubt the Veteran's credibility.  In addition, the Veteran's statements describing his symptoms at the time of their onset were directly supported by the April 2010 VA examiner's diagnosis and opinion that the Veteran's chloracne was due to the Agent Orange exposure.  Accordingly, the Board finds that the Veteran's competent and credible lay statements establish that his chloracne manifested to a degree of ten percent within one year after he was last exposed to Agent Orange.  

The Board acknowledges that the Veteran was diagnosed with granuloma annulare, seborrheic keratosis, and favre-racouchot syndrome, in October 2007, several years prior to the filing of this claim.  However, the private doctor indicated in a January 2010 statement that the Veteran's current skin condition consisted of acneiform papules, blackheads, and whiteheads.  He also stated that Agent Orange can cause chloracne and it is plausible the Veteran's condition arose from Agent Orange exposure.  Upon VA examination, the diagnosis of chloracne was confirmed.  Accordingly, as the medical evidence dating from 2010 shows only that the Veteran has chloracne, the Board need not consider whether service connection is warranted for skin disorders that were diagnosed years earlier and not shown to exist contemporaneously with the current claim.  

As the competent and credible evidence of record shows that the Veteran served in the Republic of Vietnam, has a current chloracne disability, and his chloracne manifested to a degree of 10 percent or more within a year of the date on which he was last exposed to an herbicide agent in the Republic of Vietnam, entitlement to service connection for chloracne is granted.  


ORDER

Entitlement to service connection for chloracne is granted.



____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs