Citation Nr: 1341929	
Decision Date: 12/18/13    Archive Date: 12/31/13

DOCKET NO.  08-32 785	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for a skin disability, to include as secondary to herbicide exposure.  


REPRESENTATION

Appellant represented by:	Edward M. Farmer, Attorney at Law


WITNESSES AT HEARING ON APPEAL

The Veteran and Spouse


ATTORNEY FOR THE BOARD

A. Haddock, Associate Counsel


INTRODUCTION

The Veteran had active service from November 1967 to June 1969, with service in the Republic of Vietnam.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO).  In July 2010, the Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of that hearing is associated with the record.  This issue was remanded by the Board in August 2010 and January 2013 for further development.   

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 

While this case was in remand status, a statement of the case was issued in October 2013 on the issues of service connection for sleep apnea and a rating higher than 50 percent for posttraumatic stress disorder (PTSD).  As of this date, a substantive appeal has not been received, according to the physical and virtual claims files, so these issues are not before the Board.


FINDING OF FACT

A skin disability was not shown during active service; nor is it shown to be otherwise related to active service, to include herbicide exposure therein.  






CONCLUSION OF LAW

The criteria for service connection for a skin disability, to include as due to herbicide exposure, have not been met.  38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In accordance with 38 C.F.R. § 3.159(b)(1), proper 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.  Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case).  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).

Here, the VCAA duty to notify was satisfied by way of September 2007 and September 2010 letters.  These letters informed the Veteran of what evidence is required to substantiate his claim and of his and VA's respective duties for obtaining evidence.  The Veteran was also informed of how VA assigns disability ratings and effective dates.  Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content.

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  

The Board notes that the RO has obtained the Veteran's service treatment records and pertinent postservice private treatment records.  Further, pursuant to August 2010 and January 2013 Board remands, the Veteran was afforded VA examinations in October 2010 and in May 2013.  The Board notes that the October 2010 VA examination did not fully address the Veteran's variously diagnosed skin disability, and as a result the Board ordered a new VA examination.  Upon review of the May 2013 examination report, the Board finds that the examination fully addressed the Board's January 2013 remand directives and was conducted in conjunction with a review of the claims files.  In light of the foregoing, the Board finds the May 2013 examination to be adequate and that there has been substantial compliance with the remand directives.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Therefore, no additional remand is required and the Veteran will not be prejudiced by the Board adjudicating the claim at this time.  See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998).

Also, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation.  They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  In this case, during the July 2010 Board hearing, the VLJ fully explained the issue on appeal, and asked questions focused on the nature and etiology of the disabilities in question, specifically as to the cause and symptoms of the Veteran's claimed skin disability.  The Veteran was assisted at the hearing by an accredited representative from the Veterans of Foreign Wars, and additional testimony was provided by his spouse.  In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims files that might have been overlooked, or was outstanding, that might substantiate the claim; the Veteran did not identify any such evidence.  The Board notes that neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. 

Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his claims discussed above.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II. Legal Criteria and Analysis

The Board has reviewed all of the evidence in the claims folders.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims.

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 (West 2002); 38 C.F.R. § 3.303(a) (2013).  In general, service connection requires (1) 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

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) (2013). 

A Veteran who served in the Republic of Vietnam during the Vietnam War shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange).  38 C.F.R. § 3.307(a).  Furthermore, the diseases listed at 38 C.F.R. § 3.309(e) shall, in turn, be presumptively service connected if this requirement is met, even though there is no record of such disease during service.  Chloracne, or other acneform diseases consistent with chloracne, is the only skin disease listed in 38 C.F.R. § 3.309 for which presumptive service connection is available based on in-service herbicide exposure.  A presumption of service connection based on exposure to herbicides is not warranted, however, for any condition for which the Secretary of VA has not specifically determined a presumption of service connection is warranted.  See Notice, 64 Fed. Reg. 59232 -59243 (1999). 

The Veteran contends that he has a skin disability as a result of his active service, to include exposure to herbicides therein.  

A review of the Veteran's service treatment records (STRs) is silent for any complaints of, or treatment for, symptoms related to a skin disability.  The report of his June 1969 separation examination shows that on clinical evaluation the Veteran's skin was normal.  

Postservice private treatment records show that in April 1994, the Veteran first sought treatment for a skin rash.  A biopsy was taken at that time, which revealed results consistent with pityriasis rosea.  Subsequent private treatment records show that the Veteran sought sporadic treatment for his skin disability, which has been variously diagnosed as inflammatory seborrheic dermatitis, eczematous dermatitis, and, most recently in February 2010, eczema.  The Veteran's course of treatment for his skin disability has involved over the counter topical creams, prescription strength topical creams, oral medications, and some injectable medication.  The private treatment notes of record, provide no indication or suggestion that the Veteran's variously diagnosed skin disability is etiologically related to his active service, to include herbicide exposure therein.  

Also of record are statements from the Veteran, made in writing and at his July 2010 Board hearing, in which he has asserted that his skin disability first manifested shortly after his separation from active service.  He has stated that he is required to use a topical ointment everyday in order to prevent his skin disability from "breaking out," and that while his symptoms sometimes improve, they never completely go away.  

The Veteran was afforded a VA examination in October 2010.  At that time, it was noted that within the last 12 months, the Veteran had been treated for pityriasis rosea.  The examiner noted that there were hyperpigmented macules on the upper extremities and faintly on the back.  After examination, and review of the claims file, the examiner opined that the Veteran's skin condition was not related to his active service.  The examiner explained that there was no evidence that the Veteran had sought treatment for his skin condition until 1993, and while a 1994 treatment record noted a diagnosis of pityriasis rosea, subsequent treatment records in 2001 do not note such a condition.  Further, the examiner noted that pityriasis rosea was a condition of unknown etiology and generally cleared within 3 months, although it could leave some residual hyperpigmentation.  

As the October 2010 VA examiner only provided an opinion pertaining to the Veteran's diagnosis of pityriasis rosea, the Veteran was afforded a new VA examination in May 2013 (a record of which is contained in the Veteran's "Virtual VA" file), in order to address the other diagnosed skin disabilities of record.  On examination, while it was noted that the Veteran's clinical records showed he had been assigned various diagnoses of different skin disabilities, there was no objective evidence of any skin disability at the time of the May 2013 examination.  After examination and review of the claims files, the examiner opined, that it was less likely than not that any currently diagnosed skin disability was etiologically related to the Veteran's active service, to include exposure to herbicides therein.  The examiner explained that there was no documentation of treatment for a skin disability during the Veteran's active service, or within one year of his separation from active service, and the first evidence of a diagnosis of a skin disability was in 1994 when he was assigned a diagnosis of pityriasis rosea.  Further, the examiner noted that none of the Veteran's assigned diagnoses were known to be caused by herbicide exposure; he explained that pityriasis rosea is a condition most likely caused by a virus, seborrheic dermatitis is a condition that results form the over production of skin oil combined with an irritation by a yeast called Malassezia, and that eczematous dermatitis (used in the opinion interchangeably with atopic dermatitis) is a condition that is caused by unknown factors, but may be due to a gene defect and is often associated with allergies.  Therefore, the examiner opined, the Veteran's variously diagnosed skin disability was less likely than not related to his active service, to include any herbicide exposure therein.  

The Veteran has been diagnosed with various skin disabilities in the past, even though his most recent VA examination shows that there was no objective evidence of any diagnosed skin disability.  Regardless, even though his symptoms sometimes improve with the use of his medication, and in the event that at the time of the May 2013 VA examination, the Veteran's symptoms were simply not present, the Board is still unable to find that service connection for a skin disability, to include as due to herbicide exposure is warranted.  In this regard, the Board notes that that the Veteran has not been diagnosed with chloracne, and as such service connection for a skin disability on a presumptive basis pursuant to 38 C.F.R. § 3.309(e) cannot be granted.  

Further, the Board notes that the medical evidence of record shows that the Veteran's skin disability is not otherwise related to his active service.  Specifically, there is no indication that the Veteran sought treatment for a skin disability while on active service or for many years after separation from active service.  Additionally, the May 2013 VA examiner has opined that the various diagnoses of record are not related to the Veteran's active service, and has explained that such disabilities are not known to be caused by herbicide exposure and, as noted above, all the diagnosed skin disabilities have specific etiological causes unrelated to the Veteran's active military service.  The Board notes that there is no contrary opinion of record, and as such, the Board finds the May 2013 opinion persuasive.  

The Board acknowledges the Veteran's assertions that his variously diagnosed skin disability was caused by his active-service, to include herbicide exposure therein.  However, while the Veteran may sincerely believe that his variously diagnosed skin disability was caused by his active service, to include herbicide exposure therein, his statements are not supported by the medical evidence or record.  Additionally, as he is a layperson without the specialized training necessary to address a complex question with respect to the etiology of a variously diagnosed skin disability, and he does not cite to any supporting medical texts or treatises, he is not competent to provide a nexus opinion.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In sum, the evidence of record does not show that the Veteran has a skin disability for which presumptive service connection can be granted under 38 C.F.R. § 3.309(e) and there is no evidence that his variously diagnosed skin disability is otherwise related to his active service.  Therefore, the Board finds that service connection for a skin disability, to include as secondary to herbicide exposure, is not warranted.  As there is a preponderance of evidence against the claim, the benefit-of-the-doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).  


ORDER

Entitlement to service connection for a skin disability, to include as secondary to herbicide exposure, is denied.  


____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs