Citation Nr: 1337569 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 07-39 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for a skin disability claimed as chloracne. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968. He had service in Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. This appeal was previously before the Board in October 2011, at which time the Board found new and material evidence had been received to reopened the previously denied claim. The Board remanded the matter for development. A review of the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal with the exception of the October 2013 appellate brief. FINDINGS OF FACT 1. The Veteran served in Vietnam and is presumed to have been exposed to Agent Orange. 2. The Veteran does not have a disease that is presumed to be service-connected in veterans exposed to Agent Orange. 3. The Veteran does not have chloracne. 4. Rosacea, actinic keratoses, strawberry H, and seborrheic keratoses were not manifest during service and are not attributable to service. 5. Acne vulgaris was noted at entry. 6. Acne vulgaris did not increase in severity during service. CONCLUSIONS OF LAW 1. The criteria for service connection for chloracne, to include as due to herbicide exposure, are not met. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303 (2013). 2. A skin disability, diagnosed as Rosacea, actinic keratoses, strawberry H, and seborrheic keratoses was not incurred in or aggravated by service.38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.302. 3. Preexisting acne vulgaris was not aggravated during service. 38 U.S.C.A. § 1111, 1110, 1153 (West 2002); 38 C.F.R. § 38 U.S.C.A. § 38 C.F.R. § 3.306. 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); 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); 38 C.F.R. § 3.159(b); 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) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). The January 2008 VCAA letter explained what evidence was necessary to substantiate the Veteran's claim of service connection for chloracne. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the January 2008 VCAA notice letter from VA was provided prior to initial adjudication of the Veteran's claim and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records and all of the identified VA treatment records and post-service private treatment records. In compliance with an October 2011 remand, the Veteran was afforded a VA examination as to the nature and likely etiology of the claimed disability. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The November 2011 VA examination report provides a detailed review of the Veteran's claims folder including his lay statements and evidentiary submissions. The examination report is adequate for the purpose of adjudicating the Veteran's claim. For these reasons, the Board finds that VA has complied with the VCAA notification and assistance requirements. The claim of service connection is ready to be considered on the merits. II. Law and Regulations Service Connection- In General Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Agent Orange Presumptions The law also establishes a presumption of entitlement to service connection for diseases associated with exposure to certain herbicide agents and also provides a presumption of exposure for veterans who served in the Republic of Vietnam. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). In this respect, if a veteran was exposed to an herbicide agent during active military service, Chloracne or other acneform disease consistent with chloracne shall be service-connected, if the disorder became manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a). The foregoing diseases shall be service connected if a veteran was exposed to a herbicide agent during active military, naval, or air service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. See 38 C.F.R. § 3.309(e). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 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 period beginning on January 9, 1962, and ending on May 7, 1975. "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). VA has validly interpreted the "service in Vietnam" language of the statute and regulation as requiring that a Veteran must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Service connection may 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 Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). As such, the Board must not only determine whether the Veteran has a disability recognized by VA as being etiologically related to exposure to herbicide agents that were used in Vietnam. See 38 C.F.R. § 3.309(e), but must also determine whether his claim was the result of active service under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). III. Analysis As an initial matter, the Board notes that the Veteran did not engage in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not applicable. Rather, the Veteran claims that his disability is a result of his exposure to Agent Orange. Service personnel records show the Veteran had service in the Republic of Vietnam and that his occupational specialty was a cook. Service treatment records include a December 1965 pre-enlistment examination report noting mild acne vulgaris. The August 1968 separation examination shows a normal clinical evaluation of the skin. An October 1968 VA examination report shows a normal skin evaluation. Private medical records in March 2001 note that the Veteran was being seen for a rash on his right cheek of a few weeks duration. A biopsy was performed to rule out squamous cell revealing nonspecific findings. The Veteran was diagnosed as having actinic damage and inflammation in a nonspecific pattern. An April 2001 record assessed the Veteran as having a group of papulopustules right cheek - presumed rosacea and rosacea on the rest of his face. Subsequent private medical records include an April 2002 record showing that the Veteran had a normal skin evaluation, and a May 2002 record diagnosing him as having seborrheic keratoses and strawberry H. There was also a June 2003 record noting that the Veteran had facial actinic keratoses and was to follow up in dermatology, and December 2003 and February 2004 records showing that the Veteran had normal skin evaluations. In a January 2006 Agent Orange examination, the examiner reported that the Veteran did have a "chronic acneiform" on his face that the Veteran reported having for many years. The report indicated that the examiner discussed what might be needed to prove this was chloracne. Similarly, there was a June 2006 VA outpatient record containing a problem list that includes chronic acneiform process on the Veteran's face. This record shows that the Veteran had been prescribed tetracycline and clindamycin. In addition, there was a statement from the Veteran's spouse, dated in August 2006, asserting that the Veteran had the "usual teenage zits" while growing up, but his face had been clear when he was drafted into the military in 1966. She said that when he returned from Vietnam in 1968 he had a "bad case of pimples or acne...". She said the breakouts have worsened over the years and have lasted longer with large bumps and erosions. She reported that they were worse on his face, but that he also had them on his back. There was also an August 2006 statement from the Veteran asserting that his skin problem did not exist until after Vietnam. The evidence includes a November 2011 record from the Veteran's private physician, M. T ., M.D., stating that the Veteran had developed Chloracne. He went on to state that, "Evidently, [VA] has recognized chloracne as a service-connected condition ...based on exposure to Agent Orange for many years. Certainly, this has become a problem for [the Veteran]". In the Veteran's substantive appeal, dated in February 2009, he states that he does not deny that he had mild acne as an adolescent, but that he never had it as bad as he presently has it nor did he ever have what is now diagnosed as chloracne. In November 2011, the Veteran underwent a VA examination. The examiner diagnosed rosea. The examiner opined that it was less likely than not that the Veteran's rosacea incurred in or was caused by military service. The examiner further stated that the distribution and the recurrence pattern described, together with the examination, lead to the medical opinion that the correct diagnosis for the Veteran's recurrent skin condition is rosacea, not chloracne. Finally, the examiner stated that rosacea is more likely than not due to endogenous factors not environmental exposure. Based on the evidence of record, the Board concludes that service connection for a skin disability, to include chloracne is not warranted. Here, the Veteran has had numerous diagnoses. Each shall be addressed. Clearly acne vulgaris was noted at entrance. Therefore, the presumption of soundness is not applicable. Furthermore, the presumption of aggravation in regard to acne vulgaris is not applicable since there was no increase in severity during service. 38 U.S.C.A. § 1153. Rather the skin was normal at separation. Since service, the Veteran was seen in March 2001 and actinic damage was identified. However, actinic disability was not identified during service has not been related to service. In fact, when seen the history was of a rash of a few weeks duration, rather than an in-service onset. Similarly, rosacea, seborrheic keratosis, and Strawberry H have been diagnosed. However, such were not noted or identified during service and have not been related to service, to include Agent Orange exposure. In sum, the post-service onset of The Veteran had service in the Republic of Vietnam during the Vietnam War. However, the Veteran's skin disability is not subject to presumptive service connection on this basis. First, it is clear from the record that the Veteran did not manifest these symptoms while he was deployed. Although his December 1965 pre-enlistment examination report noted mild acne vulgaris, the August 1968 separation examination shows a normal clinical evaluation of the skin. There are no service records suggesting that the Veteran manifested chloracne while he was deployed. Therefore, in order to be eligible for presumptive service connection, the Veteran must manifest chloracne or other acneform disease consistent with chloracne to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a). However, the Board finds that he has not. Indeed, an October 1968 VA examination report shows a normal skin evaluation. There is no evidence of chloracne or other acneform disease within one year after his last date of exposure to an herbicide agent. As such, the Veteran has not manifested chloracne or another acneform disease to a degree of 10 percent within one year after his last date of exposure to an herbicide agent. Therefore, he is not entitled to presumptive service connection for veterans that were exposed to an herbicide agent during the Vietnam Era. However, despite the denial of this theory of entitlement, a veteran may still establish service connection for a disability based on a direct relationship to service, to include as due to exposure to herbicide agents. The Board notes that the Veteran's private physician, M. T., M.D, wrote a letter to VA asserting that the Veteran had chloracne. The physician did not opine as to the etiology of the diagnosis. Instead, the physician noted that chloracne is a condition for which service connection can be obtained based on Agent Orange exposure. However, Dr. M.T. also failed to provide any explanation or rationale for the opinion provided. Moreover, this diagnosis does not address the nature of the lesions nor the fact that the Veteran's supposed chloracne symptoms were diagnosed as rosacea in the other private treatment reports of record. It is noted, that none of the available private treatment records reflect any findings of chloracne. Despite this lack of evidence, Dr. M.T. listed chloracne as a present condition. Finally, the November 2011 VA examiner opined the Veteran did not have chloracne. Following a physical examination, the VA examiner explained the distribution and recurrence pattern of the Veteran's skin disorder was consistent with rosacea not chloracne. The November 2011 VA examiner states that the Veteran's recurrent skin condition is rosacea not chloracne. The Board considers the November 2011 VA examiner's discussion of the evidence and clinical findings to be high probative evidence in evaluating whether the Veteran has actually had chloracne. The VA examination report is persuasive in its explanation of the examiner's opinion that current examination findings are not consistent with chloracne. Based on the foregoing, the Board finds the Veteran does not have chloracne. The Veteran has reported that he was exposed to herbicide agents while deployed and that this led to his current skin disability. The Veteran is certainly competent to report as to his symptomatic history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In further support of his assertions regarding symptoms, the Veteran has also submitted a lay statement from his wife to address the presence and severity of the Veteran's dermatological symptoms since his period of service. While laypersons can provide competent opinions regarding etiology in many cases, see Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009), in this case, the Veteran has reported that he experienced worse skin conditions following discharge which is inconsistent with the record. Clinical evaluation in October 1968 was normal when examined for skin disorders. In this case, the Board finds that the opinion of the October 2011 VA examiner is more competent to address the etiology of the skin disability. For the foregoing reasons, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for chloracne. ORDER Service connection for a skin disability to include chloracne is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs