Citation Nr: 1342308 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 08-13 036A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a claimed skin disorder, to include as due to the exposure to herbicides. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from July 1971 to December 1977. A February 1981 VA administrative decision concluded that the Veteran's service from July 1971 to July 1974 was honorable. However, the discharge from service for the period from July 1974 to December 1977 was deemed to have been other than honorable and to have constituted a bar to his receiving VA benefits. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the RO. In December 2009, February 2012, and February 2013, the Board remanded the case to the RO, via the Appeals Management Center (AMC) for additional development of the record and readjudication. In June 2013, the Board sought and advisory medical opinion from the Veterans Health Administration (VHA). That opinion, dated in June 2013, has been received at the Board, and the Veteran and his representative have been provided a copy of this opinion. The Board has also reviewed the Veteran's Virtual VA and VBMS electronic claims file, which reveals additional VA outpatient treatment records dated through March 2013 and a June 2013 VA examination report unrelated to the present claim. FINDINGS OF FACT The currently demonstrated dermatitis is shown as likely as not to have had its clinical onset during the Veteran's service in the Republic of Vietnam when he was exposed to a jungle environment. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by dermatitis is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act (VCAA) The 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. 2012)) 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) (2012). To the extent that the action taken hereinbelow is fully favorable to the Veteran, further discussion of the requirements of VCAA is not required at this time. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a), and not to the disability claimed on appeal. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disease first 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). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran contends that he is entitled to service connection for a skin disorder. He asserts that this disorder is related to his in-service exposure to herbicides or, in the alternative, had its origin during his service in the Republic of Vietnam. There is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam Era. See 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). In this case, the Veteran's personnel records confirm his service in the Republic of Vietnam during the Vietnam era, and therefore his is presumed to have been exposed to Agent Orange during service. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; hairy cell leukemia and other chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); Parkinson's disease; and ischemic heart disease. 38 C.F.R. § 3.309(e). The Veteran served in the Republic of Vietnam during the Vietnam era. Thus, he is presumed to have been exposed to herbicides, to include Agent Orange. See 38 C.F.R. § 3.307(a)(6)(iii). However, as will be discussed, the Veteran has not been diagnosed with a skin disorder that is among the diseases recognized by VA as associated with herbicide exposure. See 38 C.F.R. § 3.309(e). Hence, presumptive service connection for the claimed skin disorder based on his presumed herbicide exposure is not warranted. However, the regulations governing presumptive service connection for herbicide exposure do not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (1994). Accordingly, the Board will proceed to evaluate the Veteran's claim under the provisions governing direct service connection, 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303. The Veteran's service treatment records reflect that, in August 1972, the Veteran was seen for a rash on the left upper back, with an onset of one month earlier. An impression of possible atopic dermatitis was noted. In September 1973, the Veteran was treated for a sebaceous cyst of the right posterior thorax. The cyst was noted to be pruritic and measured 1.5 centimeters in diameter. The March 1976 and November 1977 examinations revealed no skin abnormalities, and the Veteran denied having a skin disease on a March 1976 report of medical history. Following the Veteran's discharge from service, an August 2004 VA outpatient treatment report noted an assessment of candida dermatitis. An August 2006 private treatment report noted reports of edema, rash and sores that did not heal. On VA treatment in May 2008, the Veteran was seen for skin tags on the axilla. He was treated with electrocautery. During the October 2009 hearing, the Veteran testified about experiencing various skin problems since his service in Vietnam including that involving the legs, arms and face. He testified that he had experienced continuous skin problems mainly affecting the legs and arms since service. He added that, while he had experienced constant skin problems since service, he had not sought treatment until more recently. A February 2010 VA outpatient treatment report noted the presence of a rash on the lower legs. On VA examination in May 2010, the Veteran reported having a bilateral leg rash that began during service. He described his symptoms as dry, scaly skin at the posterior lower calf area. He used topical cream for treatment. The examiner noted a mild, dry, scaly patchy area of the skin that measured three centimeters in diameters on the posterior lower calf area. A diagnosis of dermatitis of the lower extremities was assigned. At a November 2010 VA dermatology consultation, the Veteran complained of bothersome growths on the extremities which he picked at very often. He also had a few skin tags on the right armpit that he requested be removed. An assessment of keratosis and solar lentigos and skin tags of the right axilla was indicated. A June 2011 VA report included the examiner's opinion that the Veteran's dermatitis of the lower extremities was not due to or a result of herbicide exposure or skin conditions treated during active service. In so finding, the examiner noted that the Veteran had not been diagnosed with an Agent Orange presumptive condition. She also noted that the skin conditions treated during his service did not include dermatitis of the lower extremities. She only referenced the Veteran's in-service treatment for sebaceous cysts and athlete's foot, and not the diagnosis of possible atopic dermatitis. A February 2013 VA examination reflected that the Veteran reported an onset of skin problems in service in Vietnam with a bilateral leg rash that was related to exposure to a wet jungle environment. After an examination, the examiner diagnosed dermatitis. The examiner opined that the Veteran's claimed skin disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, given that there was no documentation in the Veteran's service treatment records surrounding his claimed bilateral leg dermatitis. In March 2013, the February 2013 VA examiner provided an addendum opinion. She reiterated that the claimed skin disorder was less likely as not related to service. She noted that the Veteran had not been diagnosed with an Agent Orange presumptive condition. She added that the Veteran's service treatment records documented treatment for atopic dermatitis in 1972, sebaceous cyst in 1973, a cyst on the back in 1975, and athlete's foot in 1975. She noted that the etiology of these conditions was not consistent with the Veteran's claimed skin condition. In addition, she noted that there was no documentation from 1975 to 2000 regarding any skin condition, and there was no documentation of a bilateral leg rash until 2000. In an April 2013 statement, the Veteran reported that he had experienced a skin disorder since service. He indicated that he was treated in the 1970s and 1980s at walk-in clinics for skin problems and was given 5 percent coal tar solution and hydrocortisone. He expressed that these treatments lessened his symptoms to the extent that they were tolerable, but the symptoms were still present and had continued to the present. In the VHA opinion dated in June 2013, a VA dermatologist indicated that he had reviewed the Veteran's claims file. He noted that the Veteran was presumed to have been exposed to Agent Orange and that his service included at least 12 months of living in the jungle with little chance of changing clothes or maintaining personal hygiene. The examiner noted the Veteran's report that he did not seek treatment during his service in Vietnam because no one complained about only rashes and received treatment with coal tar and cortisone cream in the 1970s and 1980s. He observed that, by 2010, the Veteran's lower leg dermatitis was treated with triamcinolone cream, appropriate for chronic dermatitis. The reviewing VA physician opined that it was at least as likely as not that the Veteran's continuing skin problems had its onset in Vietnam with the jungle exposure. He found it not likely that his symptoms were related to Agent Orange exposure, as the Veteran had not been diagnosed with the associated skin diseases of chloracne, porphyria cutanea tarda, or cutaneous t-cell lymphoma or mycosis, which could only be proven by subsequent skin biopsy. The Board notes that there are competing opinions of record as to whether the Veteran's claimed skin disorder, currently diagnosed as dermatitis, had its onset in service or is otherwise related to service. While the VHA opinion provider determined that the Veteran's dermatitis likely had its onset in service related to his service in a jungle environment in Vietnam, the previous VA examiners found such a relationship to be less likely than not. However, while these VA examiners indicated that they reviewed the Veteran's claims file, they did not address the Veteran's credible, consistent reports of chronic skin problems since service. Moreover, these examiners appear to base their opinion largely upon the lack of contemporaneous evidence of dermatitis in service. After carefully reviewing the entire record, the Board finds the evidence to be in relative equipoise in showing that the current dermatitis of the lower extremities as likely as not had its clinical onset during service, related to service in a jungle environment in Vietnam. Accordingly, in resolving all reasonable doubt in the Veteran's favor, service connection for dermatitis is warranted. ORDER Service connection for dermatitis is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs