Citation Nr: 1335675	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  07-32 730	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for sleep apnea, to include as due to herbicide exposure or secondary to service-connected Type II diabetes mellitus.

2.  Entitlement to service connection for a skin disorder other than service-connected squamous cell carcinoma, solar elastosis, seborrheic keratosis, and actinic keratosis, to include as due to exposure to the sun, herbicides, or chemicals during service.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Tanya A. Smith, Counsel


INTRODUCTION

The Veteran had active service from July 1952 to June 1973.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In April 2009, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of this hearing is associated with the claims folder.  In a June 2009 decision, the Board reopened the claim of entitlement to service connection for a back disorder and remanded the claim along with claims of entitlement to service connection for sleep apnea and skin disorder for further evidentiary development.  In December 2010, the Board determined that the development that occurred on remand was inadequate and remanded the claims again for further action.  In an August 2012 decision, the Board granted service connection for a low back disability, but found that the development that occurred on remand was inadequate with respect to the sleep apnea and skin claims and remanded these claims for further action.  In a July 2013 rating decision, the RO granted service connection for a skin disorder and continued the denial of the sleep apnea claim in a supplemental statement of the case issued in July 2013.  The case has now been returned to the Board for appellate review.

As noted above, service connection has been established for a skin disorder-specifically, squamous cell carcinoma, solar elastosis, seborrheic keratosis, and actinic keratosis.  The Board, however, previously identified other post-service diagnosed skin disorders (herpes simplex and seborrheic dermatitis) as potential disorders etiologically related to service.  Accordingly, the Board finds that the issue of entitlement to service connection for a skin disorder other than service-connected squamous cell carcinoma, solar elastosis, seborrheic keratosis, and actinic keratosis remains on appeal notwithstanding the RO's finding that the award constituted a "complete grant of this issue" in the July 2013 rating decision and the Veteran's representative expressing no disagreement with the RO's handling of the issue.  Moreover, while the issue was not recertified to the Board, the RO's certification of an appeal is for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue.  38 C.F.R. § 19.35 (2013). 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The probative medical opinion evidence of record shows that the Veteran's currently diagnosed sleep apnea did not have its onset in service, and is not otherwise etiologically related to herbicide exposure or service-connected diabetes mellitus, nor is there additional disability related thereto.

2.  The probative medical opinion evidence of record shows that a current skin disorder other than service-connected squamous cell carcinoma, solar elastosis, seborrheic keratosis, and actinic keratosis is not etiologically related to service, to include as due to exposure to the sun, herbicides, and chemicals.


CONCLUSIONS OF LAW

1.  Sleep apnea was not incurred in or aggravated by active service, its incurrence or aggravation during active service may not be presumed, and it is not proximately due to, the result of, or aggravated by service-connected Type II diabetes mellitus.  38 U.S.C.A. §§ 1101, 1110, 1131, 1116 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2013).


2.  A skin disorder other than service-connected squamous cell carcinoma, solar elastosis, seborrheic keratosis, and actinic keratosis was not incurred in or aggravated by active service, and its incurrence or aggravation during active service may not be presumed.  38 U.S.C.A. §§ 1101, 1110, 1131, 1116 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.	Veterans Claims Assistance Act of 2000 

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). 

The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013).  The requirements apply to all five elements of a service connection claim:  veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).  Moreover, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (reaffirming that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect).  

In November 2005 and March 2006 VCAA letters sent to the Veteran prior to the appealed May 2006 rating decision, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate the claims as well as what information and evidence must be submitted by the Veteran and the types of evidence that would be obtained by VA.  Thereafter, March 2006, July 2007, February 2009, October 2009, and January 2011 letters provided the Veteran with additional notice and also advised the Veteran how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations.  The Veteran's claims were last readjudicated in a July 2013 rating decision and supplemental statement of the case.  The Board finds that VA's duty to notify has been met. 

The record also reflects that VA has made reasonable efforts to assist the Veteran in the development of his claim.  Specifically, the information and evidence that have been associated with the claims file includes service treatment records, and private and VA treatment records.  The Veteran was also afforded VA examinations in January 2011 and January 2013 pursuant to Board remand directives.  The Board finds that the findings reported therein are adequate to decide the claims.  The opinions found by the Board to be dispositive of the issues are based on review of the claims file and knowledge of the Veteran's relevant medical history, consideration of the contentions of the Veteran and his wife, and examination of the Veteran, and supported by a rationale.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008).  The Veteran was also provided an opportunity to set forth his contentions during the April 2009 Board hearing.  In Bryant v. Shinseki, the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the "hearing officer" who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  23 Vet. App. 488 (2010).  The Board notes that the issues were addressed at the 2009 hearing and the development (relevant treatment records, clarification of private opinions, medical examinations and nexus opinion) necessary to substantiate the claims was ordered by the Board.  Thus, if error found, the Veteran was not prejudiced.  See Bryant, 23 Vet. App. at 498-99 ("[A]lthough the Board hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the record reflects that they were developed by the Secretary-to include medical examination reports on each of these disabilities and any nexus to service-and there was no indication that the represented appellant had any additional information to submit.  Accordingly, the 'clarity and completeness of the hearing record' was intact with respect to these disabilities and the purpose of § 3.103(c)(2) was fulfilled.").  The Board has also reviewed the Veteran's paperless Virtual VA claims file, a highly secured electronic repository that is used to store and review documents involved in the claims process.  It does not contain any evidence not already in the paper claims folder or considered by the RO.  

As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  The Veteran was a very active participant in the claims process, identifying relevant treatment he received for his disabilities, submitting medical evidence and lay statements detailing personal observations, and providing testimony at the Board hearing.  Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so.  The Board finds that VA's duty to assist has been met.  Also, the Board finds that there has been substantial compliance with the directives of the June 2009, December 2010, and August 2012 Remands.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

II.	Pertinent Laws and Regulations

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013).  In order to establish service connection for a claimed disorder, the following must be shown:  (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b) (2013).  The United States Court of Appeals for the Federal Circuit has recently held that absent a diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a), service connection may not be awarded based on continuity of symptomatology.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d) (2013).

Service connection may also be established for disability which is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a) (2013). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown.  Allen v. Brown, 7 Vet. App. 439 (1995).  Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement Allen v. Brown, 7 Vet. App. 439 (1995).  The amendment sets a standard by which a claim based on aggravation of a nonservice-connected disability by a service-connected one is judged.  Although the overall intention of the amendment to 38 C.F.R. § 3.310 was to implement the Allen decision, the amended 38 C.F.R. § 3.310(b) clearly institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted.  The Court in Allen was not concerned with, and did not address, such an evidentiary requirement.  The Veteran's claim was filed in September 2005 so the old regulation is for application.

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, will 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 U.S.C.A. § 1116(f) (West 2002 & Supp. 2013); 38 C.F.R. § 3.307(a)(6)(iii) (2013).  The presumption of herbicide exposure extends to all veterans who served in Vietnam at any point between January 1962 and May 1975 regardless of whether diagnosed with a disease for which a presumption has been established.  See 38 U.S.C.A. § 1116(f), as redesignated and amended by the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, § 201(c)(1)(C), 115 Stat. 976, 988 (2001).  In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116(a) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2013).  Diseases associated with herbicide exposure are set forth in 38 C.F.R. § 3.309(e) (2013).

III.	Analysis 

	1.	Sleep Apnea

The Veteran contends that his currently diagnosed obstructive sleep apnea had its onset in service, or is otherwise etiologically related to in-service herbicide exposure, or is caused or aggravated by service-connected Type II diabetes mellitus.

The record reflects that the Veteran is currently diagnosed with severe obstructive sleep apnea.  See, e.g., June 2004 sleep study by Blake Medical Center.  Thus, the existence of a current disability is established by the evidence of record. 

As for in-service incurrence of a disease or injury, service treatment records are absent any complaints of or treatment for sleep apnea.  The January 1973 separation Report of Medical Examination is negative, and the January 1973 separation Report of Medical History certified and signed by the Veteran shows he reported on no relevant complaints.  At the April 2009 Board hearing, however, the Veteran reported that during and after service, his wife, to whom he had been married since 1953, complained that he periodically stopped breathing while he was sleeping.  Additionally, the Veteran reported that he did not seek treatment for his sleep disorder until many years after service, when he fell asleep at the wheel while driving.  In this regard, the Veteran's post-service private treatment records show that during treatment with Dr. M.H. in May 2004, the Veteran reported having interrupted sleep, and the Veteran's wife reported that he snored and occasionally stopped breathing while he slept.  In a January 2011 letter, the Veteran's wife also detailed her observations of the Veteran while he slept during and after service.  The Veteran and his wife are competent to describe readily observable features or symptoms of illness, and the Board finds their statements credible.  See Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Caluza v. Brown, 7 Vet. App. 498, 511 (1995).  Thus, the record establishes that the Veteran experienced episodes of snoring and interrupted breathing during service.  Also, as the Veteran served in Vietnam during the requisite period, he is presumed to have been exposed to herbicides.  38 U.S.C.A. § 1116(f) (West 2002 & Supp. 2013); 38 C.F.R. § 3.307(a)(6)(iii) (2013).

As for a causal relationship between the current obstructive sleep apnea and the in-service episodes of snoring and interrupted breathing during service, sleep apnea is not a chronic disease as defined in 38 C.F.R. § 3.309(a), so service connection based on continuity of symptomatology is not available.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Also, obstructive sleep apnea is not an enumerated disease associated with herbicide exposure set forth in 38 C.F.R. § 3.309(e) (2013); therefore, the Veteran must prove entitlement to service connection on a direct basis.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009).  Although the Veteran and his wife are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's obstructive sleep apnea is etiologically related to episodes of snoring and interrupted breathing observed in service falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer).  Thus, medical nexus evidence is necessary to substantiate the claim.  In this regard, there is conflicting medical opinion evidence of record as to whether the Veteran's obstructive sleep apnea is related to service.  The Board must therefore weigh the credibility and probative value of these opinions, and in so doing, the Board may favor one medical opinion over the other.  See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)).  The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).

Medical opinion evidence in favor of the claim consists of letters dated in February 2005, January 2006, and April 2007 from the Veteran's primary care physician.  Dr. M.H. opined that the Veteran had severe obstructive sleep apnea disorder that was due to in-service Agent Orange exposure.  Dr. M.H., however, provided no rationale for his opinion.  The Board advised the Veteran that Dr. M.H.'s opinion was inadequate because he did not provide a rationale and gave the Veteran the opportunity to obtain a supplemental opinion from Dr. M.H. addressing this deficiency in the June 2009 Board Remand and again in the December 2010 Board Remand.  No supplemental opinion, however, was provided.  In a January 2011 letter, the Veteran reported that Dr. M.H. could not provide a clarification of opinion as he retired in July 2010.  As Dr. M.H.'s opinion contains no supporting rational, the Board finds that it has low probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

Medical opinion evidence against the claim consists of January 2010, January 2011, and January 2013 VA opinions.  In a January 2010 VA examination report, the VA examiner opined that it was less likely as not that the Veteran's sleep apnea was caused by service.  In so finding, however, it did not appear that the examiner gave proper consideration to the lay evidence of record regarding the onset of sleep apnea symptoms and the continuation of those symptoms after service and instead relied on the lack of documented treatment for sleep apnea during service.  A negative opinion based on the absence of treatment or complaints in service or since service when there is lay evidence of such inservice incurrence or continuity of symptoms may be based on an inaccurate factual premise depending upon the Board's factual finding of credibility.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007).  Here, the Board finds the Veteran and his wife's observations during service and since service credible, so the absence of documentation alone is not sufficient to show that the Veteran's current disability is not related to service.  The January 2010 VA examiner also provided an opinion that sleep apnea was not caused by diabetes mellitus, and that he was unable to make a connection.  In regard to aggravation, the VA examiner maintained that he could not tell without speculation if sleep apnea was aggravated by the service-connected diabetes mellitus.  In so finding, the examiner again relied on the lack of evidence of sleep apnea in the Veteran's service treatment records as well as the findings of a May 2006 RO rating decision, and he provided no rationale for his conclusion that an opinion regarding aggravation could not be provided without resorting to mere speculation thereby rendering his opinion inadequate.  See Jones v. Shinseki, 23 Vet. App. 382 (2010) (providing that before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence).  For these reasons, the Board finds that the January 2010 opinion has low probative value.  

In contrast, in a January 2011 VA examination report, the VA examiner noted the Veteran's history of his wife indicating that she noticed periods of snoring and what appeared to be episodes in which he stopped breathing in the 1950s.  The VA examiner also discussed the Veteran's wife's January 2011 letter in which she maintained that the episodes occurred four to six times weekly.  The Veteran reported that he did not see a medical provider for this problem until 50 years later because he was probably being stubborn.  The VA examiner opined that the Veteran's obstructive sleep apnea was not related to events that occurred in military service.  The VA examiner maintained that there were no service treatment records indicating symptoms referable to sleep apnea, and the first medical progress note in 2004 stated that the Veteran had been waking up at night with dyspnea.  Significantly, the VA examiner noted that in the Veteran's wife's letter she stated that for approximately 50 years she observed her husband snoring and having periods where it appeared he stopped breathing.  The VA examiner explained, however, that there was no history of daytime sleepiness which was a cardinal symptom of sleep apnea.  Additionally, the VA examiner noted that sleep apnea had a two to three fold increased incidence after the age 64 as opposed to the age group of 18-64.  The VA examiner also opined that the Veteran's sleep apnea was not related to or aggravated by diabetes as diabetes was not a risk factor for sleep apnea nor was there any consensus in the literature regarding an association of diabetes and obstructive sleep apnea.  The examiner then noted that the letters written by Dr. M.H. relating the Veteran's sleep apnea to Agent Orange exposure were purely speculative.  Thereafter, in a January 2013 VA examination report, a VA examiner opined that it was less likely than not that the Veteran's obstructive sleep apnea was etiologically related to herbicide exposure.  The VA examiner explained that obstructive sleep apnea was caused by airway obstruction and the medical literature did not show that Agent Orange caused airway obstruction.

The Veteran and his wife credibly believe that symptoms observed during and after service are continuous disease processes of sleep apnea diagnosed decades later.
As noted above, however, the nexus issue in this case is medically complex, so the Veteran and his wife are not competent to find that his symptoms in service were in fact due to sleep apnea which had its onset in service or is otherwise etiologically related to herbicide exposure or secondary to diabetes mellitus.  Rather, medical nexus evidence is necessary to substantiate the claim.  In this regard, the Board finds that the January 2011 VA examiner opinion that the Veteran's obstructive sleep apnea is not related to service or caused or aggravated by diabetes mellitus and the January 2013 VA examiner's opinion that the Veteran's obstructive sleep apnea is not due to herbicide exposure warrant greater evidentiary weight than Dr. M.H. and the January 2010 VA examiner's opinions.  The 2011 and 2013 opinions are based on knowledge of the relevant facts of the Veteran's lay and medical history, and they are supported by a rationale based on sound medical principles.  For these reasons, the Board finds that these opinions are persuasive.  Accordingly, service connection for obstructive sleep apnea is not warranted. 

	2.	Skin Disorder 

The Veteran contends that he developed numerous pre-cancerous lesions and skin cancer as a result of his exposure to the sun, herbicides, and other chemicals during service.  As noted above, service connection has been established for squamous cell carcinoma, solar elastosis, seborrheic keratosis, and actinic keratosis.  The Board, however, previously identified other post-service diagnosed skin disorders (herpes simplex and seborrheic dermatitis) as potential disorders etiologically related to service.  

Herpes simplex and seborrheic dermatitis are not chronic diseases as defined in 38 C.F.R. § 3.309(a), so service connection based on continuity of symptomatology is not available.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Also, herpes simplex and seborrheic dermatitis are not enumerated diseases associated with herbicide exposure set forth in 38 C.F.R. § 3.309(e) (2013); therefore, the Veteran must prove entitlement to service connection on a direct basis.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009).  Although the Veteran is competent to provide an opinion on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's post-service skin disorders are continuing disease processes or otherwise etiologically related to skin disorders noted in service falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer).  As the nexus issue in this case is medically complex, medical nexus evidence is necessary to substantiate the claim.  In this regard, the probative medical evidence of record is against the claim.  

The Veteran underwent a VA examination in January 2010 that was inadequate because it was not responsive to the directives of the December 2010 Remand.   Accordingly, the Veteran underwent a VA skin examination in January 2011.  In pertinent part, the Veteran reported that he had recurrent dermatitis of the groin but that he had not had a recurrent rash of the right forearm or the contact dermatitis he was treated for in service.  The Veteran also reported that he had been treated for tinea cruris in the past year.  The examiner reported that there was no evidence of tinea cruris on the current examination.  The examiner provided diagnoses that included no evidence of tinea cruris and no evidence of contact dermatitis.  The examiner opined that the Veteran's tinea cruris was less likely than not related to "events" that occurred in service.  The examiner noted that although the Veteran was diagnosed in military service with tinea cruris, there were no service treatment records or post-service treatment records that indicated a chronic tinea infection.  The examiner also opined that the Veteran did not have a chronic dermatitis as a result of the contact dermatitis of the right arm and right leg.  The examiner maintained that there was no physical evidence of a chronic dermatitis "as the [Veteran] state[d] it took approximately [one] year to resolve."  The Board previously found the January 2011 VA examination inadequate to the extent that while the examiner found no evidence of tinea cruris and contact dermatitis, he provided no opinion on whether the in-service tinea cruris and dermatitis subsequently developed into the post-service diagnosed herpes simplex of the buttocks and seborrheic dermatitis of the nose and glabella.  Thus, the Veteran underwent another VA examination in January 2013.  

Based on a review of the claims and physical examination, the January 2013 VA examiner found that the Veteran's in-service tinea cruris of the leg and in-service tinea cruris of the groin were less likely than not etiologically related to post-service herpes simplex of the buttocks because tinea cruris was caused by a fungus and herpes simplex was caused by the herpes virus and not a fungus.  The VA examiner found that the Veteran's in-service tinea cruris of the leg and in-service tinea cruris of the groin were less likely than not etiologically related to post-service seborrheic dermatitis of the nose and glabella because seborrheic dermatitis was caused by seborrhea, a pathologic overproduction of sebum and subsequent infection and inflammation, and not a fungus.  The VA examiner found that the Veteran's in-service contact dermatitis of the penis was less likely than not etiologically related to post-service herpes simplex of the buttocks because contact dermatitis was caused by a reaction to an irritant or allergy and herpes simplex was caused by the herpes virus.  The VA examiner found that the Veteran's in-service contact dermatitis of the penis was less likely than not etiologically related to post-service seborrheic dermatitis of the nose and glabella because seborrheic dermatitis was caused by seborrhea, a pathologic overproduction of sebum and subsequent infection and inflammation, and contact dermatitis was caused by a reaction to an irritant or allergy. 

As directed by the Board's remand, the January 2013 VA examiner also assumed that the Veteran had significant exposure to the sun during the performance of his service duties on the flight line in service.  Even assuming significant in-service sun exposure, the VA examiner found that in-service sun exposure was less likely as not etiologically related to post-service herpes simplex and seborrheic dermatitis.  The VA examiner explained that herpes simplex and seborrheic dermatitis were not related to sun exposure.  The VA examiner also found that in-service herbicide exposure was less likely as not etiologically related to post-service diagnosed herpes simplex and seborrheic dermatitis because Agent Orange exposure had not been shown in the medical literature to cause these disorders.  Finally, the January 2013 VA examiner found that in-service chemical exposure was less likely as not etiologically related to post-service diagnosed herpes simplex and seborrheic dermatitis because the particular chemical exposures that the Veteran was in contact with had not been shown in the medical literature to cause these disorders.  The Board adds that the physical examination revealed no scarring residual from the in-service removal of epidermal cysts and burn to the right forearm, and there were no rashes. 

The Board finds that the January 2011 VA examiner's opinion that the Veteran does not have chronic tinea cruris and contact dermatitis that are continuing disease processes of tinea cruris and contact dermatitis noted in service, is entitled to great evidentiary weight.  The January 2013 VA examiner's opinion that the Veteran's post-service herpes simplex and seborrheic dermatitis are not etiologically related to any skin disorders noted during service, and are not otherwise etiologically related to in-service sun, herbicide, and chemical exposure is also entitled to great evidentiary weight.  There is no contrary medical opinion of record.  The VA opinions are based on knowledge of the relevant facts of the Veteran's lay and medical history, and are supported by a rationale based on sound medical principles.  Indeed, the lay statements from the Veteran that he had "recurrent dermatitis" of the groin but no recurrence of the contact dermatitis he was treated for in service do not support a finding of a chronic condition related to service.  For these reasons, the Board finds that the 2011 and 2013 VA opinions are persuasive.  Accordingly, service connection for a skin disorder other than service-connected squamous cell carcinoma, solar elastosis, seborrheic keratosis, and actinic keratosis, to include as due to exposure to the sun, herbicides, and chemicals is not warranted. 


ORDER

Service connection for sleep apnea, to include as due to herbicide exposure or secondary to service-connected Type II diabetes mellitus is denied.

Service connection for a skin disorder other than service-connected squamous cell carcinoma, solar elastosis, seborrheic keratosis, and actinic keratosis, to include as due to exposure to the sun, herbicides, or chemicals is denied. 



____________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs