Citation Nr: 1333299 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 07-10 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a skin disability, to include actinic keratosis or chloracne, as secondary to chemical dioxin exposure. ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active duty from February 1964 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A hearing was scheduled in December 2009; however, the appellant failed to appear. He has not indicated good cause for his failure to appear nor has he requested a new hearing. Hence, the Board concludes his request for a hearing has been withdrawn. Subsequently, the case was remanded to the RO via the Appeals Management Center (AMC), in Washington, DC, for the purpose of obtaining additional information. This occurred in July 2010. Upon the claims return to the Board, a Decision was issued in March 2012. In that action, the Board denied the claims now on appeal. Following notification of the results of the March 2012 Board Decision, the appellant appealed the issue involving a skin disorder to the United States Court of Appeals for Veterans Claims, hereinafter the Court. The parties to the appeal then submitted to the Court a Joint Motion for Partial Remand (JMR) that requested that the Court vacate and remand the issue involving the skin disorder. Subsequently, the Court adopted the JMR and the claim has been returned to the Board for further action based upon the Joint Motion. In July 2013, the Board referred this matter to the Veterans Health Administration (VHA) for an expert medical opinion concerning the appellant's skin disorder. 38 C.F.R. § 20.901(a) (2013). The opinion has been received and included in the claims folder for review. FINDINGS OF FACT 1. The appellant has been diagnosed with actinic keratosis, which he avers began while he was on active duty. 2. A VHA doctor reviewer has opined that the appellant's currently diagnosed actinic keratosis is at least as likely as not the result of his military service. CONCLUSION OF LAW Resolving all reasonable doubt in the appellant's favour, the criteria for an award of service connection for actinic keratosis have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks service connection for a skin disorder, to include actinic keratosis. He maintains that while he was on active duty, he experienced skin eruptions, including an abscess between the eyes. He believes that those were the initial symptoms of a skin condition that he believes is the result of his exposure to chemical dioxins or the sun while in Southeast Asia, from which he continues to suffer therefrom. The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). Additionally, 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 appellant. 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 appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that the AOJ has substantially satisfied the duties to notify and assist, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with appellate review of this issue, given the fully favorable nature of the Board's decision. II. Factual Background The appellant seeks service connection for a disability of the skin, actinic keratosis, that he claims was caused by his military service. The service treatment records show that he was treated once for a skin eruption or abscess between the eyes. A definitive diagnosis of the abscess was not made. The remaining service treatment records are silent for any complaints involving any type of skin eruption or condition. Post-service, the appellant sought treatment for actinic keratosis in November 2004. Additional treatment was received two years later in August and November 2006. Despite the treatment, an opinion concerning the etiology of the skin disorder was not provided. The appellant then underwent a VA examination in August 2010. The examiner diagnosed actinic keratosis. The examiner indicated that the appellant did not, however, have acneform lesions or sun-relating blistering to suggest exposure to chemical dioxins. Upon further review of the information contained in the claims folder, the Board determined that it would seek additional medical clarification via an inquiry to the Veterans Health Administration. This occurred in December 2012. Upon considering the relevant information in the claims file, the VHA Section Chief of Dermatology of the Milwaukee VA Medical Center (VAMC), concluded that the appellant's actinic keratosis was at least as likely due to the appellant's sun exposure during service. The doctor did, however, find that the skin disorder was not due to any chemical dioxin exposure he may have experienced while on active duty. There are no other medical opinions or hypotheses contained in the claims folder with respect to the appellant's claimed skin disorder. III. Laws and Regulations Service connection will be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110, 1131 (West 2002). 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) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In this case, the appellant has contended, in pertinent part, that he was exposed to chemical dioxins in service, and that such exposure has caused the development of a skin disorder. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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. 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 during the Vietnam era. "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. 38 C.F.R. § 3.307(a)(6)(iii) (2013). The VA General Counsel has determined that the regulatory definition requires that an individual actually have been present on the land mass of the Republic of Vietnam. VAOPGCPREC 27-97; 62 Fed.Reg. 63604 (1997). Specifically, the General Counsel has concluded that in order to establish qualifying service in Vietnam, a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Id. If a veteran was exposed to a herbicide agent during active military, naval, or air service, specified diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2013). The Secretary of Veterans Affairs has determined, however, 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, e.g., Notice, 68 Fed. Reg. 27,630-41 (May 20, 2003). Notwithstanding the foregoing the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In other words, medical evidence must show the Veteran's disabilities are (were) related to service, to include exposure to chemical dioxins therein. 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). In light of the foregoing, service connection may be presumed for residuals of chemical dioxin exposure by showing two elements. First, a veteran must show that he served in the Republic of Vietnam during the Vietnam era. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a)(6) (2013). Second, a veteran must be diagnosed as having one of the specific diseases listed in 38 C.F.R. § 3.309(e), or otherwise establish a nexus to service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997). IV. Discussion In this instance, there is competent medical evidence in support of the appeal. There is no dispute that the appellant now suffers from actinic keratosis. A VA doctor has also concluded that the appellant's actinic keratosis is etiologically related to his service. As noted, the only medical opinion of record was provided by a VHA reviewer in September 2013. The examination report and review clearly discussed why the appellant's actinic keratosis was not caused by or the result of the appellant's exposure to chemical dioxins. However, the reviewer clearly discussed why the same disorder was related to sun-exposure that occurred while the appellant was on active duty. In both instances, the medical reviewer was thorough in his review of all of the medical evidence of record and clearly explained the sequence of lack of medical causation in his opinion with respect to chemical dioxins. Notwithstanding his explanation with respect to actinic keratosis and chemical dioxins, the reviewer was also thorough in his explanation as to why the same disorder was the result of his military service. In other words, the Board believes that the VA health care provider provided sound reasoning in his analysis of the situation. The VA reviewer analyzed in detail the pertinent medical records, discussed the salient facts, and provided a complete rationale for all conclusions presented, as noted in the discussion above. Here, a medical expert has fairly considered all the evidence and his opinion, taken together, may be accepted as an adequate statement of the reasons and bases for a decision when the Board adopts such an opinion. Wray v. Brown, 7 Vet. App. at 493. The Board does, in fact, adopt the VA reviewer's opinion on which it bases its determination that service connection for a disability, to include as being a pre-existing service disability aggravated by service, or as being secondary to chemical dioxin exposure, is not warranted. The Board further adopts the same medical reviewer's opinion that, without hesitation, found that the appellant's skin disorder was caused by or the result of his military service and the exposure to the sun he may have endured while he was on active duty. In other words, the Board attaches the most significant probative value to the opinion of the VA medical care provider as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the service member. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). When, after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); see also 38 C.F.R. § 3.102 (2013). In Gilbert v. Derwinski, 1 Vet. App. 49 (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." The Court pointed out in Gilbert that under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the claimant prevails. In view of the foregoing, the Board finds that the evidence is, at least, in equipoise. Because the evidence is in equipoise, and since the appellant is supposed to be afforded the benefit-of-the-doubt, the Board concludes that the appellant's skin disorder, otherwise known as actinic keratosis, began in or is the result of his military service. As such, service connection is warranted in this case and his claim must be granted. ORDER Entitlement to service connection for actinic keratosis is granted. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs