Citation Nr: 1325991 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 09-11 050A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for chloracne, to include as due to herbicide exposure. 2. Entitlement to service connection for a liver disorder, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to January 1975 and from September 1976 to August 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2007 and August 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in January 2011. A transcript of the hearing has been associated with the claims file. The Board remanded the issues of entitlement to service connection for a liver disorder and chloracne in April 2011. These issues have since been returned to the Board for appellate review. In April 2011, the Board also remanded the issues of entitlement to service connection for hemorrhoids, a left shoulder disorder, peripheral neuropathy of the bilateral upper and lower extremities, pilonidal cyst removal residuals, erectile dysfunction, hemorrhoids, and hypertension. Service connection for all of these disorders was granted by the Appeals Management Center (AMC) in September 2012 and December 2012 rating decisions. As these decisions constitute a full grant of the benefits sought on appeal, the claims are no longer before the Board. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007) (the grant of a claim of service connection constitutes an award of full benefits sought on an appeal of the denial of a service connection claim); Holland v. Gober, 10 Vet. App. 433, 436 (1997) (the grant of a claim of service connection constitutes an award of full benefits sought on an appeal of the denial of a service connection claim). The Board does note that the Veteran's representative submitted an informal hearing presentation in June 2013 in which listed the issues on appeal as including entitlement to service connection for hemorrhoids, a left shoulder disorder, peripheral neuropathy of the bilateral upper and lower extremities, pilonidal cyst removal residuals, erectile dysfunction, hemorrhoids, and hypertension. However, as noted above, service connection has already been established for those disabilities. The representative later stated in the same submission that the issues remain on appeal because higher ratings are available. However, service connection is a complete grant of those issues previously appealed, and the Veteran has not submitted a notice of disagreement with any of the initial ratings. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). Therefore, the issues no longer remain on appeal, and no further consideration is necessary. If the Veteran wishes to seek a higher initial evaluation for any of these service-connection disabilities, he may file a notice of disagreement with the September 2012 and/or December 2012 rating decision. To the extent that the representative may have intended for his statement to constitute a notice of disagreement, these matters are referred to the RO for clarification and appropriate action. The decision below will address the Veteran's claim for service connection for chloracne. The issue of entitlement to service connection for a liver disorder will be addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC in Washington, DC. FINDING OF FACT The Veteran was exposed to herbicide agents while serving in Thailand during the Vietnam era, and he has chloracne which developed to a compensable level within one year of such exposure. CONCLUSION OF LAW Resolving all doubt in favor of the Veteran, chloracne is due to herbicide exposure in service. 38 U.S.C.A. § 1110, 1112, 1113, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION After the evidence has been assembled, the Board is responsible for evaluating the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Indeed, in Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet.App. at 54. Furthermore, the Board notes that it has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issue adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Duty to Notify and Assist The Board has considered the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012). However, in the decision below, the Board has granted the Veteran's claim for service connection for chloracne, and thus, the benefit sought on appeal has been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. II. Law and Regulations 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. 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). 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). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also provides that 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(d)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset 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 sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For purposes of this section, the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), Note 2. For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that 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 Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600 -42608 (2002). Notwithstanding the foregoing, regulations also 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); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). VA's Compensation & Pension Service (C&P) has also issued information concerning the use of herbicides in Thailand during the Vietnam War. In a May 2010 bulletin, C&P indicated that it has determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Based Defense in Thailand. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), C&P has determined that there was some evidence that herbicides of a tactical nature, or that of a "greater strength" commercial variant, were used. Given this information, C&P has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a "facts found or direct basis" should be extended to those veterans. Significantly, C&P stated that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure." The May 2010 bulletin identifies several bases in Thailand, including Udorn RTAFB. C&P indicated that herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS, performance evaluations, or other credible evidence. III. Analysis The Veteran contends that he developed chloracne as a result of his in-service exposure to herbicides. Specifically, the Veteran asserts that he was exposed to herbicide agents, including Agent Orange, while stationed at the Udorn Royal Thai Air Force Base (RTAFB) in Thailand during the Vietnam era. He has testified that within one year of his return from Thailand, while still on active duty, he began experiencing acne-related problems. See the hearing transcript, page 56. In April 2011, the Board found that, given the research evidence submitted by the Veteran, the numerous statements from fellow service members, and the Veteran's credible testimony, it appeared likely that he performed his duties or otherwise served near the air base perimeter at Udorn RTAFB. Furthermore, because VA's Compensation and Pension Service has indicated that herbicide exposure should be acknowledged if a United States Air Force veteran served near the base perimeter at Udorn RTAFB, the Board found that the Veteran was exposed to herbicides while stationed in Thailand during the Vietnam era. See the April 2011 decision, page 15. In April 2011, the Board remanded the Veteran's claim to determine whether the Veteran has chloracne, and if so, when it first became manifested to a degree of 10 percent or more. Following the Board's remand, the Veteran submitted a statement from his private dermatologist, D.H., M.D. (initials used to protect privacy). In this letter, Dr. D.H. indicated that the Veteran has chloracne. In addition, based on the Veteran's "prior exposure to chlorinated dioxins, the timing in which his acneiform eruption appeared (shortly after returning from Thailand), and the chronicity and clinical presentation of his cutaneous eruption (both of which are consistent with chloracne) it [was his] educated opinion that [the] aforementioned condition is more likely than not associated with his exposure to chemicals used by the United States while serving on active duty in Thailand." The record also includes an October 2011 VA examination and a January 2012 addendum opinion. The examiner observed that there is only one service treatment record indicating that the Veteran had a skin problem following his return from Thailand. In particular, it was noted that the Veteran was treated for a yeast infection in 1974. The examiner also reported that there is "no objective evidence showing" that the Veteran had chloracne within one year of his exposure to herbicides. Instead, the first evidence that the Veteran had chloracne manifest to a degree of 10 percent or more was in a May 2011 letter from a private dermatologist, which stated that he began treating the Veteran for chloracne in June 2010. As a result, the examiner concluded that there is no objective evidence of chloracne for more than 30 years after his in-service exposure. As alluded to above, the Veteran testified during the January 2011 hearing that he first noted acne-related problems in 1972 after returning from Thailand. He stated that he did not report his problems at that time because he believed his condition was the result of eating too many fried foods. See the hearing transcript, page 57. He also reported that his symptoms included pustules and cysts that would ooze on his clothing and sheets. Id at 58, 63. In an October 2011 statement, the Veteran's spouse reported that she met her husband in 1983 while he was still on active duty. She noted that, since that time, he has had "periodic skin eruptions, like small ulcers, with bleeding [and] puss." In this statement, and during her January 2011 testimony, the Veteran's spouse reported that these eruptions occurred on the Veteran's face and back and would require frequent laundering of his shirts and pillow cases. In order for service connection to be presumed under 38 C.F.R. § 3.309(e), chloracne must 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 service. See 38 C.F.R. § 3.307(a)(6)(ii). Under the rating criteria for chloracne, a 10 percent rating is warranted 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 and neck. 38 C.F.R. § 4.119 (2012), Diagnostic Code 7829. At this juncture it is important to note that the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Indeed, in Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. As discussed above, the Veteran reported that he began experiencing continuous deep inflamed nodules and pus-filled cysts on his face and neck within one year of his exposure to herbicides. The Veteran is competent to report these symptoms and the date of their onset and duration. Layno v. Brown, 6 Vet.App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). His complaints of acne have also been diagnosed by health care professionals as chloracne. See Jandreau, supra (lay evidence can be competent to and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The October 2011 VA examiner stated that there was no evidence that the Veteran had chloracne or any form of acne within one year of his exposure to herbicides; however, the examiner's report did not address the Veteran's statements of continuing symptoms. See Dalton v. Nicholson, 21 Vet.App. 23, 39 (2007) (finding a medical examination inadequate where the examiner "impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service"); see also Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) (finding an examination inadequate where the examiner failed to consider the appellant's claims file containing assertions of continued symptomatology). Given the inadequate nature of the VA examiner's opinion, the Board affords it little probative weight. See generally Obert v. Brown, 5 Vet.App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992) (Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim.) In short, the evidence suggests that the Veteran began experiencing deep acne affecting less than 40 percent of the face and neck, or; deep acne other than on the face and neck, within one year of his exposure to herbicides. Based on the foregoing, the Veteran has been shown to have developed chloracne which manifest to a degree of 10 percent or more within one year of his exposure to herbicides. Resolving any doubt in the Veteran's favor, the claim for service connection for chloracne is granted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Subject to the provision governing the award of monetary benefits, service connection for chloracne is granted. REMAND The Board notes that the Veteran submitted additional evidence and argument pertinent to a liver disorder following the December 2012 supplemental statement of the case. The RO has not yet considered this evidence, and the Veteran and his representative have not submitted a waiver of the RO's initial consideration of such evidence. In fact, in a June 2013 informal hearing presentation, the Veteran's representative specifically requested the Board remand the case for such consideration. Therefore, a remand is necessary. See 38 C.F.R. § 20.1304(c). In addition, pursuant to the April 2011 remand, the Veteran was afforded a VA examination to determine the etiology of any liver disorder that may be present. After a review of the claims file and a clinical examination, a VA examiner diagnosed the Veteran with Gilbert's syndrome. In a January 2012 addendum, the examiner stated that Gilbert's syndrome is a genetic disorder and therefore is not related to the Veteran's active duty service. It was noted that symptoms of this disorder include jaundice, which typically appears during times of exertion, stress, and infection or when the Veteran does not eat, which were all occurring when he was hospitalized during service. The Board notes that congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9 (2012). Such conditions are part of a life-long defect and are normally static conditions which are incapable of improvement or deterioration. See VAOGCPREC 67-90 (1990). VA regulations specifically prohibit service connection for a congenital or developmental defect, unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). See also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). In any event, service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the condition was incurred in or aggravated during service. While a defect is a structural or inherent abnormality or condition that is more or less stationary in nature, a disease is defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. See VAOPGCPREC 82-90, 56 Fed. Reg. 45711 (1990). Currently, the record is unclear as to whether the Veteran's Gilbert's syndrome is a congenital defect or a congenital disease that was incurred in or aggravated in service. An additional examination is therefore required. Therefore, in order to give the Veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request the Veteran identify all records of VA and non-VA health care providers who have treated him for a liver disorder. After obtaining any appropriate authorizations for release of medical information, the RO/AMC should obtain records not currently associated with the claims file from each health care provider the Veteran identifies. 2. Then, the Veteran should be afforded a VA examination to determine the nature and etiology of any and all liver disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. The examiner should identify all current liver disorders. If the Veteran has any liver disorder other than Gilbert's syndrome, the examiner should state whether it is at least as likely as not that the disorder manifested in service or is otherwise related to his military service, including his symptomatology therein. With regard to Gilbert's syndrome, the examiner should address the following: A. Is the Veteran's Gilbert's Syndrome a congenital "disease" or a congenital "defect"? To assist the examiner, the Board notes that, for VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. (As an example, VA considers sickle cell anemia as congenital "disease" for VA purposes whereas refractive error is considered a congenital "defect"). B. If the examiner concludes the Veteran's Gilbert's syndrome is a congenital disease, the examiner should then render an opinion as to whether the disease preexisted the Veteran's military service. If so, the examiner should state whether it underwent a permanent increase in severity during his active service and whether any permanent increase was due to the natural progress of the condition. C. If Gilbert's syndrome is not congenital and/or did not preexist service, the examiner should state whether it is at least as likely as not that the disorder manifested in service or is otherwise related to his military service, including his symptomatology therein. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the RO/AMC, to include consideration of all additional evidence received after the December 2012 SSOC. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs