Citation Nr: 1332748 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 06-05 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a skin disorder, to include as due to herbicide exposure and/or exposure to sunlight. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to September 1969. This matter arises to the Board of Veterans' Appeals (Board) from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied multiple service connection claims. Since then all other service connection claims have been adjudicated and are no longer on appeal. In an October 2008 decision, the Board enforced a stay of adjudication imposed by the Chairman of the Board. After the stay was lifted, the Board remanded the case for development in June 2009, April 2010, and March 2012. The record before the Board consists of paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. Competent medical evidence dissociates intertrigo, tinea, pitriasis, clavus, comedomes, xerosis, onychomycoses, stasis dermatitis, seborrhea, and lipoma tumors of the neck and left biceps from active service. 2. Competent medical evidence does not entirely dissociate actinic keratoses and photo-damaged skin of the forearms from exposure to ultraviolet light during active service. 3. No Agent Orange-related skin disorder is shown, nor is the Veteran shown to have served in Vietnam during the Vietnam War Era. CONCLUSION OF LAW Actinic keratoses and photo-damaged skin of the arms were incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, all remand orders have reasonably been complied with. As set forth at 38 U.S.C.A. §§ 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), and 3.159 (2013), VA must notify claimants of certain procedural aspects of their claims and must assist claimants in obtaining evidence that might substantiate their claims. Because the Board is granting the benefits sought by the claimant, any error (if committed) with respect to VA's duty to notify or assist does not result in unfair prejudice to the claimant and need not be discussed. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (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); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, only a diagnosis offered by a medical professional is "competent" evidence of a diagnosis; however, when a condition may be identified by its unique and readily identifiable features and capable of lay observation, the lay diagnosis of the disorder is also competent. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). This is especially true where the lay diagnosis supports a later diagnosis offered by a medical professional. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The phrase "chronic disease" refers to those diseases listed under 38 U.S.C.A. § 1101 (3) and 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013) ("The clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). Malignant tumors are included among the diseases listed as chronic diseases under the law. 38 U.S.C.A. § 1101 (3); 38 C.F.R. § 3.309 (a). In the instant case, however, none of the skin-related diagnoses involves a malignancy or other listed chronic disease. Therefore, the benefits of presumptive service connection set forth at 38 C.F.R. §A 3.309 (a) are not for application. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. The evidentiary requirements for service connection afforded combat Veterans under 38 U.S.C.A. § 1154(b) are more relaxed. Although the Veteran reported exposure to gunfire during active service that ruined his hearing, the record does not reflect that he participated in combat, nor has he so alleged. Because the Veteran is not a combat veteran, he will not be afforded the favorable service connection provisions set forth at 38 U.S.C.A. § 1154(a). The Veteran has voiced strong concern that skin-related disorders were caused by exposure to herbicide agents during active service. The Veteran's enlistment and separation examination reports show no relevant abnormality. The Veteran completed a report of medical history questionnaire at enlistment and separation and reported no relevant abnormality. His Service Treatment Reports (STRs) and his official personnel file do confirm that he served Thailand during the Vietnam War Era. He was assigned to a communications squadron at Ubon Royal Thai Air Force Base from September 1968 to September 1969. Indeed, the Veteran's STRs reflect treatment for skin disorders during his one-year tour of duty in Thailand. In July 1969, he was treated for a skin rash on a shoulder and for intertrigo (a superficial dermatitis occurring on apposed skin surfaces, such as the axillae, creased of the neck, inter-gluteal fold, groin, between the toes, and beneath pendulous breasts, with obesity being a predisposing factor, caused by moisture, friction, warmth, and sweat retention, and characterized by erythema, maceration, burning, itching, and sometimes erosions, fissures, and exudations and secondary infections. Called also eczema intertrigo. Dorland's Illustrated Medical Dictionary 851 (28th ed. 1994)). Also in July 1969, the Veteran was treated for a tinea rash on the trunk, arms, and groin. The impression was tinea corporis plus heat rash of the groin. Concerning the Veteran's claims of exposure to Agent Orange or other herbicides while stationed in Thailand, VA has offered guidance. VA Adjudication Manual M21-1 MR, Part IV, Subpart ii, Chapter 2.C 10. Q, states that VA's Compensation Service has determined that "a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of Thai military bases." An April 1969 STR notes treatment for an injury incurred while serving at a "remote site." Although the Veteran has not mentioned having served in Thailand off-site from Ubon Air Base, this record suggests that he might have also served at some other Southeast Asia location, or at least that he came and went from Ubon Air Base, which further suggests that his duty placed him on or near the perimeter of the base from time to time. Thus, he may have been exposed to herbicides in Thailand. Concerning any suggested service in Vietnam, if the Veteran had served in Vietnam, exposure to Agent Orange would have been conceded due to operation of law; however, the evidence for service in Vietnam is scant. In the Veteran's August 2004 claim for service connection, he checked "no" to ever having served in Vietnam. Yet, an April 2009 written presentation, the Veteran's representative alleged that the Veteran served in or visited Vietnam where he earned the Vietnam Service Medal (hereinafter: VSM). While the Veteran clearly did earn the VSM, that medal may be earned by every individual who served with a unit directly supporting military operations in the Republic of Vietnam, Thailand, Cambodia, and Laos within the defined combat zone (see DoD 1348 C6.6.1.1.5., revised September 1996) between 15 November 1961 and 28 March 1973, and from 29 to 30 April 1975. Thus, receipt of the VSM does not conclusively establish service in Vietnam. A document in the Veteran's official personnel file confirms that a Federal Income Tax preference was available to him because he flew over Vietnam; however, overflight of Vietnam is not within the definition of "service in Vietnam." 38 C.F.R. §§ 3.307 (a) (6) (iii), 3.313. Because the Veteran did not serve in Vietnam and because no skin disorder that is linked to exposure to Agent Orange in Vietnam, as set forth at 38 C.F.R. § 3.309 (e), is shown, the presumption of service connection set forth for herbicide-exposed veterans need not be discussed further. What must be discussed further is direct service connection for various skin disorders found during the appeal period. In August 2004, the Veteran requested service connection for a skin disorder. In January 2005, he submitted medical articles that discuss solar keratoses and other skin disorders. The RO denied service connection for skin disorders in January 2005. The RO obtained 2004 and 2005-dated VA out-patient treatment reports that note assessments of photo-damage ("splotchy brown dyspigment") to the skin of the forearms and of a clavus of the right thumb (a clavus is a corn, Dorland's Illustrated Medical Dictionary 339 (28th ed. 1994)). An August 2006 VA dermatology report notes eczema and xerosis and scaly red patches on the legs. An August 2008 report notes papules on the upper lip and lesions of the forearms. The assessments included photo damage and acne vs. excoriation of herpes simplex virus. A July 2009 VA dermatology compensation examination report reflects that the diagnoses were photo-damage on the arms; idiopathic guttate hypomelanomas on the arms; and, stasis dermatitis of the legs. The dermatologist concluded that no Agent Orange-related skin disease was shown, but offered no other etiology opinion. In an August 2009 addendum report, however, the dermatologist explained that photo-damage on the arms is caused by ultraviolet light exposure during the Veteran's lifetime. In March 2010, the Veteran's representative argued that the Veteran had been exposed to excessive sunlight while serving aboard a naval vessel at sea. No other evidence of record suggests that the Veteran served aboard a naval vessel at sea and therefore this allegation must be dismissed as erroneous. The Veteran underwent a VA dermatology compensation examination in May 2010. The dermatologist reported that the pertinent medical history included a many-year history of itchy rashes on the legs, problem toenails; hair loss, and dry scalp. The dermatologist offered 5 diagnoses: (1) idiopathic guttate hypomelanosis of the arm. The physician found this unlikely related to active service on the basis that the disorder is caused solely by aging; (2) stasis dermatitis of the legs. The physician found this unlikely related to active service on the basis that it is caused by venous insufficiency and varicosities; (3) toenail dystrophy. The physician determined that there was no evidence with which to link this to active service; (4) seborrheic dermatitis, mild. The physician determined that there was no evidence with which to link this to active service, but conceded that this is a common condition; and, (5) seborrheic keratoses of the arms, benign. The physician found this unlikely related to active service on the basis that this has a genetic component, it has no relationship to exposure to sunlight, and that it is common in adults. The Board remanded the case in March 2012 for additional development and clarification of the previous examination report. A February 2013 VA dermatology compensation examination report reflects that the dermatologist reviewed the pertinent medical history and determined that any intertrigo, tinea, or pitriasis shown during service had completely resolved. The physician dissociated clavus from active service on the basis that it was not shown during active service nor is it known to be associated with Agent Orange. The physician dissociated comedomes from active service on the basis that this was not shown during active service and that it has resolved. The physician dissociated actinic keratoses and photo damage from active service on the basis that neither was shown during active service; however, the physician then explained that the reason these are not related to active service is that the Veteran had spent 4 years in service and 62 years not in service and thus suggested that the Veteran has a 62/66 chance of no service connection. The physician dissociated xerosis from active service on the basis that it is not currently shown. The physician dissociated onychomycoses from active service on the basis that it was not shown during active service nor is it known to be associated with Agent Orange. The physician dissociated stasis dermatitis from active service on the basis that it is not currently shown. The physician dissociated seborrhea from active service on the basis that it was not currently found, it is a common condition, and therefore not related to active service nor is it known to be associated with Agent Orange. The physician dissociated seborrheic keratoses from active service on the basis that this are common and occur with age and they were not shown during active service or known to be associated with Agent Orange. The physician dissociated lipoma tumors of the neck and left biceps from active service on the basis these are acquired tumors with no relationship to military service or to Agent Orange. The Board must next analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). The above-mentioned medical opinions are reasonably persuasive, except as noted below, as they are based on accurate facts and are supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). The negative nexus opinions concerning the origins of intertrigo, tinea, pitriasis, clavus, comedomes, xerosis, onychomycoses, stasis dermatitis, seborrhea, and lipoma tumors of the neck and left biceps are satisfactory, as they are based on correct facts and are supported by persuasive rationale. The nexus opinions concerning the origin of photo-damage-related arm lesions and actinic keratoses are less persuasive. As the dermatologist explained, these ultraviolet exposure-related skin diseases are caused by a "lifetime" of exposure to sunlight. This explanation does not eliminate sunlight exposure during active service as a cause. In fact, the explanation actually supports service connection. The dermatologist failed to establish the earliest date when an ultra-violet-related skin disorder first appeared. The Veteran first requested service connection in 2004, when he was about 58 years of age. It is unclear how many years he had noticed his arm or facial lesions at that time. The VA physician characterized the overall fraction of non-military service vs. years of age as 62/66. This connotes a small component of military-related causation; however, if this is the method by which a nexus is calculated, then it should be noted that the Veteran was about 58 years of age in 2004 when he first sought service connection for his skin. Thus, the military fraction of his lifetime might be about 4/58 when he first claimed service connection. It should be further noted that the fraction 4/58 does not represent the "odds" or "probability" of service connection. The fraction means that a service-connected component of each lesion has already been established. The fraction means that each lesion shown is 4/58 due to in-service exposure and 54/58 due to civilian exposure. This case presents little reasonable doubt about the origin of actinic keratoses and photo-damage of the arms, as VA regulations do not distinguish between a small and a large nexus. Where the medical evidence does not reasonably dissociate military service from the cause of the claimed disorder, the Board must resolve any reasonable doubt in favor of the Veteran. Put another way, the Board can point to no regulation, statute, or case law that suggests that service connection should be denied for a disability that is shown by competent medical evidence to be 4/58th the result of service. The Board must also address the competency, credibility, and probative value of the lay evidence. 38 U.S.C.A. § 7104(d)(1) (West 2002); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The lay evidence of record is competent with respect to observance of symptoms readily observable and it is credible, as there is no indication of lack of veracity. Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). However, the determination of an issue involving a question of medical expertise requires further analysis of the Veteran's competency. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). In this case, the Veteran feels strongly that all his skin disorders are related to Agent Orange. Because no medical professional agrees with him, his opinion cannot be afforded any weight in the matter. When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. After considering all the evidence of record, the Board finds that the evidence is at least in relative equipoise. The benefit of the doubt doctrine will therefore be applied. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. Service connection for actinic keratoses and photo-damage will therefore be granted. ORDER Service connection for actinic keratoses and photo-damage is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs