Citation Nr: 1328898 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 07-29 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a skin condition, to include chloracne, to include as due to exposure to herbicides. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from December 1965 to September 1967 with service in the Republic of Vietnam from August 1966 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran requested a hearing in his September 2007 VA Form 9. In a March 2009 statement, he withdrew his request for a hearing. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d), (e) (2012). In February 2011 the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicides in Vietnam. 2. The preponderance of the evidence reflects that the Veteran does not have chloracne or a skin condition due to any incident of his active duty service, or that manifested to a degree of 10 percent disabling within one year of last exposure to herbicides, or is directly due to exposure to herbicides. CONCLUSION OF LAW Chloracne was not incurred or aggravated in service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in May 2006. This letter advised the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence. It provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and the report of a VA examination in March 2011. The examination was adequate because it was based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and accompanied by color photographs. The examiner also provided a rationale for the opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). This case was remanded in February 2011 so that the Veteran could undergo a VA examination, which he did in March 2011. There was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). II. Service Connection Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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 for certain diseases. 38 C.F.R. §§ 3.303(a),(b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). In order to establish service connection for the claimed disorder, there must be (1) medical 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) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The requirement of a current disability 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." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Veterans who, during active 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 to an herbicide agent [to include Agent Orange], unless there is affirmative evidence of non-exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307 . If a veteran who was exposed to herbicides in Vietnam had chloracne or another acneform disorder consistent with chloracne manifest to a degree of disability of 10 percent or more within one year following the last date of exposure to the herbicides, such disease shall be considered to have been incurred in or aggravated by service. See 38 U.S.C.A. § 1116(a)(2)(C) ; 38 C.F.R. §§ 3.307(a)(6)(ii) , 3.309(e). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. 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 herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In his March 2007 Notice of Disagreement (NOD), the Veteran stated that he felt his "exposure to agent orange in [V]ietnam either caused a new skin condition or aggravated [his] childhood skin condition...[.]" The Veteran's December 1965 entrance examination showed a normal skin examination with no skin conditions noted. Further, in his report of medical history that accompanied his entrance examination, the Veteran selected "no" in response to a question as to whether he had skin diseases. The Veteran is presumed to have entered service in sound condition. The Veteran's STRs are entirely negative for symptoms or a diagnosis of chloracne or any other skin condition. At his March 2011 VA skin examination, the Veteran reported having acne on his back when he was a teenager. He stated that he saw his family doctor and was treated with PhisoHex. He reported that the acne resolved prior to service. The examiner noted acne scars on the Veteran's back. The examiner concluded that the Veteran's history "establishes the presence of common acne prior to military service with scarring on his back." The Veteran reported to the March 2011 VA examiner that he did not believe he had skin problems in service, but that his claimed condition appeared approximately five to 10 years after his separation from service. Although the Veteran asserted in his NOD that herbicide exposure aggravated a pre-existing skin condition, his statements in March 2011 combined with his STRs contradict that statement. It is acknowledged that the VA examiner indicated that the Veteran had common acne prior to service, and that the Veteran reported a childhood history of skin problems which were aggravated by herbicides; however, this evidence is not sufficient to meet the clear and unmistakable standard that the Veteran entered service with a preexisting disability given the normal entrance examination report, the negative history for skin problems reported at entrance, the reported resolution of skin problem prior to service entrance, and lack of skin findings in service, among other things. The Veteran filed his claim in April 2006. In April 2006 and September 2007, Dr. D. E., the Veteran's private physician, stated that the Veteran had chloracne. He also described pustules and red acne lesions. In March 2011, the VA examiner found that the Veteran had a history of common acne that was currently inactive. Resolving all doubt in favor of the Veteran, he had a skin condition during the appeal period and therefore the first element of a service connection claim is satisfied. Hickson, 12 Vet. App. at 253; see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (finding that the requirement for a current disability is satisfied if the claimant has a disability at the time a claim was filed or at any time during the pendency of the appeal, even if the disability resolves prior to the Secretary's adjudication of the claim). However, for the reasons discussed below, the Board finds that the Veteran does not have chloracne. Private medical records from Dr. R. B. from August 1986 note "old cystic acne" on the Veteran's back. Dr. R. B. found that the Veteran "[s]till gets occasional acne cysts on his extremities and back and chest which are troublesome for him." He diagnosed the Veteran with "chronic low grade cystic acne" and prescribed tetracycline. In March 1988, Dr. R. B. stated that the Veteran's low grade cystic acne changes "...respond[] nicely to the [t]etracycline that we gave him two years ago." In August 2002, Dr. D. E., a private physician, stated that the Veteran's skin had "no unusual rashes or suspicious lesions noted." He diagnosed the Veteran with actinic keratoses. Actinic keratoses are not related to acne or chloracne. They are "...caused by excessive exposure to the sun." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 975 (30th ed. 2003). In April 2006, Dr. D. E. stated that the Veteran "... had lifelong acne and it was really very severe after the service and I believe that this has been chloracne." During Dr. D. E.'s examination, he concluded that the Veteran had "pustules over [his] back and ...severe pits throughout [his] entire thoracic back area." Dr. D. E. also stated that the Veteran had some acne on his face. He concluded that, "I do believe that this is very likely chloracne related to your Agent Orange [exposure] given the severity of the acne and the worsening of your acne with the significant scarring occurring, particularly immediately following your military time." In September 2007, Dr. D. E. stated that the Veteran was exposed to herbicides in service. He noted that the Veteran had acne as a teenager and again at some point after leaving service. He found that "[the Veteran] is getting red acne lesions in a very diffuse area involving arms, legs, head, really all over his body." Dr. D. E. stated that the Veteran had this condition for many years, "...[b]ut it does appear that he has developed chloracne and this is a known complication from exposure to agent orange." In March 2011, the Veteran underwent a VA skin disease examination. He reported that he had acne on his back and face as a teenager, but that it resolved prior to service. He was left with scars on his back. He did not believe that he had acne or other skin conditions while in service, but that the condition first began five to 10 years after his separation. He described medium to large red, painful bumps that occurred one or two at a time on his back, face, and legs. These bumps never came to a head. He did not seek medical treatment and they resolved on their own after two to three weeks. He thought that they left scars. He stated that he had not had them for years. The examiner noted that, "[c]oincidentally they stopped being a problem about the time he had chemotherapy two years ago." The Veteran's current skin-related complaint was that he occasionally got a pimple on his back. The examiner diagnosed him with pre service acne. The Veteran denied current treatment and symptoms. Upon examination, the Veteran's skin was clear and smooth on his face. He had no acne or visible scars. He had "two tiny pimples" on his back, but no other lesions. He had widespread shallow, faded scars. The examiner noted that each scar was small, suggesting it was from a small pimple rather than a large cyst and stated, "[t]he patient believes the scarring was present before he joined the service." The examiner found that the Veteran had no blackheads or large, deep scars. The examiner concluded that the Veteran's history "establish[ed] the presence of common acne prior to military service with scarring on his back." It was further noted that the Veteran denied having additional skin problems until several years after separation, when he had problems that could have been "acne, cysts, or boils." The examiner concluded that "[t]he description, time course and appearance of the patient's skin are not suggestive of chloracne." Regarding Dr. D. E.'s April 2006 letter, the examiner stated that the results of the VA exam were "very different from the one described in that letter." The examiner stated that the Veteran had no pustules on his back, no severe pits over his thoracic area, and no visible scarring on his face. The examiner added that "...judging by what the patient told me, he had scarring prior to joining the service." The examiner concluded that she was unable to comment on the letter "...other than to say that I have detailed my examination, taken photos, and provided my opinion on the patient's skin condition." The Board finds that the preponderance of the evidence is against a finding that the Veteran has had chloracne during the appeal period. Aside from Dr. D. E.'s April 2006 and September 2007 statements, the record does not reflect any other diagnoses of chloracne. In the 1980s, the Veteran had low grade cystic acne. In 2002, Dr. D. E. diagnosed the Veteran with actinic keratoses, not chloracne. Other treatment records from Dr. D. E. do not reflect a diagnosis of chloracne. The letters from Dr. D. E. note pustules and severe pit scars on the Veteran's back. The March 2011 examiner found no such scars and instead described them as shallow and the result of small pimples. The findings of the March 2011 VA examiner, who recorded the Veteran's history, provided a detailed description of the Veteran's skin, and included color photographs showing a lack of pustules and severe scarring, are more probative than the statements from Dr. D. E. Further, the VA examiner, who reviewed the Veteran's medical records, noted that the large, painful bumps described by the Veteran ceased to be a problem after he underwent chemotherapy. There is no evidence that Dr. D. E. reviewed the Veteran's claims file. A physician's review of the claims file is not the determinative factor in assigning probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). But the Court noted that a physician should have information regarding relevant case facts. The VA examination reports reflects that the examiner had access to the Veteran's STRs, private medical records dating back to the 1980s, and the Veteran's lay statements. Further, the examiner's opinion is explained and supported. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The March 2011 VA examiner's findings are more probative and the Board finds that the Veteran does not have chloracne. Further, the second element of a service connection claim is not satisfied. Hickson, 12 Vet. App. at 253. His STRs are entirely negative for any symptoms or diagnoses of a skin condition. His skin was found to be normal at his separation examination and he denied having skin diseases in his report of medical history in September 1967. Further, the Veteran specifically stated at his March 2011 VA examination that his skin condition did not manifest in service, and instead it first manifested five to 10 years following service. The Veteran is competent to state that he had acne and provide an estimate as to when the problem began. Further, the Board finds his March 2011 statement credible. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The Veteran's reports regarding the onset of his skin condition provide probative evidence against his claim. Therefore, there is no evidence of an in-service incurrence of a disease or injury. Lastly, the nexus element of a service connection claim is not satisfied on a presumptive or direct basis. Id. Although the Veteran, who served in the Republic of Vietnam, is presumed to have been exposed to herbicides, the preponderance of the evidence does not show that he currently has chloracne or another acneform disease. Nor does it show that he developed chloracne that manifested to a compensable degree within one year of his last exposure to herbicides. In this case, he served in the Republic of Vietnam until September 1967, and there is no evidence that the condition manifested prior to September 1968, one year following his last exposure to herbicides in the Republic of Vietnam. In fact, the Veteran's own statements at his March 2011 examination provide evidence against presumptive service connection because he stated that the skin condition did not manifest until five to 10 years after his separation from service. Presumptive service connection is not warranted. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board will consider whether service connection is warranted on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed Cir. 1994). Although Dr. D. E. provided positive nexus statements in April 2006 and September 2007, they are based upon his finding that the Veteran has chloracne. The Board has found the findings of the March 2011 VA examiner to be more probative regarding the Veteran's diagnosis and has concluded that the Veteran has not had chloracne. Therefore, Dr. D. E.'s nexus statements are not probative because they are based upon a finding that has not been accepted by the Board and they do not address any other skin condition. The March 2011 examiner diagnosed the Veteran with "acne in the past, currently quiescent." Because no current skin condition was diagnosed, no opinion was provided other than the opinion regarding chloracne, as discussed above. The other medical evidence of record does not address whether there is a nexus between the Veteran's period of active service and his claimed skin condition. The Veteran has submitted lay evidence in support of his claim, as discussed above with regard to aggravation. He also stated in May 2006 that he "had chloracne from the time [he] was discharged from service." As noted above, the preponderance of the evidence is not in favor of a finding that he has had chloracne. Although the Veteran believed in May 2006 that he had chloracne, he is only competent to report observable symptoms such as the presence of a skin condition. To the extent that the Veteran is asserting that a skin condition was present, his statement is competent. However, his statement is not consistent with his report of medical history for discharge and his discharge examination, which both noted normal skin. In fact, the Veteran answered "no" to the question regarding skin diseases. The Veteran's pre-separation physical examination and questionnaire are particularly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73(1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The Veteran's May 2006 statement is not credible because it is directly contradicted by his STRs. Further, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, whether the Veteran's skin condition was chloracne or whether his current common acne is the same condition he claims he had at discharge falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The nexus element of a service connection is not satisfied. Hickson, 12 Vet. App. at 253. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C.A. § 5107(b) regarding reasonable doubt are not applicable, and his claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for a skin condition, claimed as chloracne, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs