Citation Nr: 1338206 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 09-28 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for porphyria cutanea tarda, including as due to herbicide exposure. 2. Entitlement to service connection for hepatitis C, including as due to porphyria cutanea tarda. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from December 1968 to July 1970, including in combat in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied, in pertinent part, the Veteran's claims of service connection for porphyria cutanea tarda, including as due to herbicide exposure, and for hepatitis C (which was characterized as a liver condition diagnosed as hepatitis C). Having reviewed the record evidence, the Board finds that the issues on appeal are characterized more appropriately as stated on the title page of this decision. An RO hearing was held on the Veteran's claims in September 2009 and a transcript of this hearing has been added to the claims file. As is explained below, the Board finds that service connection is warranted for porphyria cutanea tarda. The issue of entitlement to service connection for hepatitis C, including as due to (service-connected) porphyria cutanea tarda, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The Veteran's service personnel records show that he served in combat in the Republic of Vietnam. 2. The Veteran's service treatment records show that he was treated for ringworm in 1969 while in combat in the Republic of Vietnam. 3. The record evidence shows that the Veteran's porphyria cutanea tarda is related to active service. CONCLUSION OF LAW Porphyria cutanea tarda was incurred in active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. Given the favorable disposition of the action here with respect to the Veteran's claim of service connection for porphyria cutanea tarda, which is not prejudicial to him, the Board need not assess VA's compliance with the VCAA with respect to this claim. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). The Veteran contends that he incurred porphyria cutanea tarda during active service. He specifically contends that his in-service complaints of and treatment for ringworm constituted a misdiagnosis of porphyria cutanea tarda and demonstrate that he experienced porphyria cutanea tarda during service. He also alternatively contends that his in-service herbicide exposure caused or contributed to his current porphyria cutanea tarda. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). In the case of any Veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Satisfactory lay or other evidence under section 1154(b) has been defined as "credible evidence." See Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996). These provisions deal with the question of whether a particular disease or injury occurred in service; that is, what happened then, and not the question of either current disability or nexus to service (both of which generally require competent evidence). In other words, these provisions in 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) do not establish presumptive service connection for a combat Veteran. Rather, they relax the evidentiary requirements for noting what happened in service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521, 524 (1996). VA regulations provide that a Veteran who had active military, naval, or air service 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. See 38 C.F.R. § 3.307(a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e). Porphyria cutanea tarda is among the diseases listed in § 3.309 for which presumptive service connection is available based on in-service herbicide exposure. Porphyria cutanea tarda also must have become manifest to a compensable degree within a year after the last date on which a Veteran was exposed to herbicides. See 38 C.F.R. § 3.307(a)(6)(ii) (2013). The Secretary of Veterans Affairs also has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42,600 (June 24, 2002). Notwithstanding the foregoing, the Federal Circuit has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a Veteran from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. See Brock v. Brown, 10 Vet. App. 155 (1997). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also 38 C.F.R. § 3.309(a). Because porphyria cutanea tarda is not explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a), the Board finds that Savage and the theory of continuity of symptomatology in service connection claims is inapplicable to this claim. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. The Board finds that the evidence supports granting the Veteran's claim of service connection for porphyria cutanea tarda on a direct service connection basis. See generally 38 C.F.R. §§ 3.303, 3.304. The Veteran has contended that he incurred his current porphyria cutanea tarda during active service and continued to experience this disease after his service separation. The record evidence supports the Veteran's assertions regarding in-service incurrence of porphyria cutanea tarda and an etiological relationship between his current porphyria cutanea tarda and active service. The Veteran's service personnel records confirm that he served in combat in the Republic of Vietnam. These records show that he participated in combat operations against communist forces in the Republic of Vietnam in 1969 when he participated in Operation UTAH MESA. Thus, the Veteran's lay statements alone are sufficient to establish that he experienced porphyria cutanea tarda during active combat service in Vietnam. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Although the Veteran's available service treatment records show no complaints of or treatment for porphyria cutanea tarda, the Board notes that the lack of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). More importantly, the Veteran's service treatment records show that he complained of and was treated for ringworm on several occasions while in combat in Vietnam. For example, on August 12, 1969, the Veteran complained of ringworm and an itching sensation in the right arm. Physical examination showed ringworm on the right side from the arm pit extending down to the waist "on lower portion." The Veteran was prescribed tinactin ointment and griseofulvin to treat this disease. On August 27,1969, it was noted that the Veteran was started on 500 mg of griseofulvin for 15 days with weekly checks of his ringworm. In October 1969, the Veteran complained of a 3-month history of ringworm. It also was noted that tinactin and griseofulvin had been used "to no avail" in treating the Veteran's ringworm. He asked to see a medical doctor about using a different medication to treat this disease. It also was noted that the Veteran's ringworm was on his chest and lower back. These records also indicate that the Veteran's skin was normal clinically at his enlistment physical examination in December 1968, prior to going to Vietnam, and at his separation physical examination in June 1970, after he had returned from Vietnam. Having reviewed the record evidence, and especially in light of the Veteran's honorable active combat service in Vietnam, the Board finds that he incurred porphyria cutanea tarda during such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The post-service evidence also demonstrates that the Veteran's porphyria cutanea tarda is related to active service. It appears that the Veteran was diagnosed as having porphyria cutanea tarda following VA outpatient treatment in February 2007 and has been treated for this disease since that time. In February 2007, the Veteran complained of blisters and reported a 30-year history of blistering and scarring on his hands and arms when exposed to the sun. Physical examination showed scarring on the bilateral hands and bilateral dorsal forearms "as well as xerosis" and hypertrichosis over the bilateral temporal areas and pinnae. The assessment was porphyria cutanea tarda with a "classic presentation and history." On VA outpatient treatment in September 2009, it was noted that the Veteran wanted to discuss his porphyria cutanea tarda. He brought service treatment records "dating from August 1969 through April 1970 indicating [that the Veteran] was being treated for suspected ringworm (tinea corporis). However, [the Veteran's] skin condition did not respond to topical therapies with tinactin or oral griseofulvin therapy." A history of continued persistent/recurrent dermatitis involving the Veteran's upper extremities was reported prior to his February 2007 diagnosis of porphyria cutanea tarda. The Veteran also reported a history of in-service herbicide exposure. Physical examination showed pruritic lesions of the upper extremities. The VA clinician opined: [B]ased on [the Veteran's] prior military medical records indicating [that] he was treated on multiple occasions for suspected ringworm (tinea corporis) in 1969 through 1970 without improvement, I believe it is reasonable to suspect that he may have had undiagnosed porphyria cutanea tarda at the time of his active military service. Therefore, I believe it is at least as likely as not that his porphyria cutanea tarda is related to his active military duty. The impression was porphyria cutanea tarda. The Veteran's service treatment records show in-service treatment for ringworm while on active combat service in the Republic of Vietnam. The Veteran has contended that his porphyria cutanea tarda was misdiagnosed as ringworm during such service. Because his lay statements regarding in-service incurrence of porphyria cutanea tarda are consistent with the facts and circumstances of his honorable active combat service in Vietnam, and because his service personnel records demonstrate that he served in combat in Vietnam, the Board has found that he experienced porphyria cutanea tarda during such service. The record evidence (in this case, post-service VA outpatient treatment records) shows that, after reviewing the Veteran's service treatment records showing treatment for ringworm while in Vietnam, a VA clinician opined in September 2009 that it was at least as likely as not that the Veteran's current porphyria cutanea tarda was related to active service. There is no competent contrary opinion of record. Accordingly, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for porphyria cutanea tarda is warranted on a direct service connection basis. See also 38 C.F.R. § 3.102. ORDER Entitlement to service connection for porphyria cutanea tarda is granted. REMAND The Veteran also contends that he incurred hepatitis C during active service. He alternatively contends that his porphyria cutanea tarda caused or aggravated his current hepatitis C. As outlined above, the Board has found that service connection for porphyria cutanea tarda is warranted on a direct service connection basis. Having reviewed the record evidence, the Board finds that additional development is necessary before the underlying secondary service connection claim for hepatitis C can be adjudicated on the merits. The record evidence shows that the Veteran has been diagnosed as having hepatitis C and currently is being treated for this disease by VA. It also shows that, following VA outpatient treatment in November 2009, a VA clinician opined that hepatitis C "is [a] solid etiologic factor for [porphyria cutanea tarda] development" because porphyria cutanea tarda "is a result of" hepatitis C. "Hence it is at least as likely as not [that hepatitis C] is related to [porphyria cutanea tarda]." This clinician also stated, however, that porphyria cutanea tarda "does not cause" hepatitis C. This clinician stated further that she could not comment on whether the Veteran incurred hepatitis C during active service without resorting to mere speculation. The Court has held that, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. See Barr, 21 Vet. App. at 303. The Court also has held that medical opinions using the "mere speculation" language, without more, generally are disfavored because they are inconclusive as to the origin of a disability. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993). Before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, however, 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. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, VA must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). Therefore, it must be clear from either the examiner's statements or the Board's decision that the examiner has considered "all procurable and assembled data" by obtaining all tests and records that might reasonably illuminate the medical analysis. See Daves v. Nicholson, 21 Vet. App. 46 (2007). When the record leaves this issue in doubt, it is the Board's duty to remand for further development. The Board finds the November 2009 VA clinician's opinion as to the etiology of the Veteran's current hepatitis C somewhat contradictory and confusing. Given the foregoing, and because the VA examiner used the "mere speculation" language in her November 2009 opinion regarding the etiology of the Veteran's hepatitis C and did not provide any further explanation of this opinion, the Board finds that the November 2009 VA outpatient treatment record is inadequate for VA purposes. See also 38 C.F.R. § 4.2. The Board notes in this regard that the duty to assist includes scheduling an examination where necessary and, to date, the Veteran has not been scheduled for an examination to determine the nature and etiology of his hepatitis C. Thus, on remand, the Veteran should be scheduled for appropriate VA examination which addresses the contended etiological relationship between his hepatitis C and active service without resorting to mere speculation. The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and/or his service representative and ask him to identify all VA and non-VA clinicians who have treated him for hepatitis C since his service separation. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Schedule the Veteran for appropriate VA examination to determine the nature and etiology of his hepatitis C. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that hepatitis C, if diagnosed, is related to active service or any incident of service. The examiner also is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected porphyria cutanea tarda caused or aggravated (permanently worsened) his hepatitis C. A complete rationale must be provided for any opinions expressed. If any requested opinion cannot be provided without resorting to speculation, then the examiner should explain why. The examiner is advised that the Veteran contends that he incurred hepatitis C during active service. The examiner also is advised that the Veteran contends alternatively that his service-connected porphyria cutanea tarda caused or aggravated (permanently worsened) his hepatitis C. The examiner finally is advised that the lack of in-service complaints of or treatment for hepatitis C is not persuasive evidence that it did not occur during active service. 3. The Veteran should be given adequate notice of the requested examination which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 4. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs