Citation Nr: 1343322 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 12-24 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for skin disability, to include chloracne or other acneform disease consistent with chloracne. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran had active duty service from June 1958 to May 1985, including service in Vietnam. This matter is again before the Board of Veterans Appeals (Board) on appeal from a November 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded in December 2012 and June 2013. The Board notes at the outset that service connection has already been established for a number of disabilities, including recurrent seborrhea and left and right chest keloids. The Veteran's combined service-connected disability rating is 90 percent, and a total rating based on individual unemployability has been awarded. The following decision is limited to the question of service connection for skin disability other than the already service-connected recurrent seborrhea and keloids of the left and right chest. 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 Veteran's nummular eczema is causally related to his active duty service. 2. The Veteran's folliculitis is causally related to his active duty service and has also been aggravated by medication taken for his service-connected recurrent seborrhea. 3. The Veteran's comedones have been aggravated by medication taken for his service-connected recurrent seborrhea. 4. The keloids of the upper chest and scalp are not causally related to the Veteran's active duty service, nor are they caused by or aggravated by a service-connected disability. 5. The Veteran's petechiae is not causally related to the Veteran's active duty service, nor is such disorder caused by or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. Nummular eczema was incurred in the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. Folliculitis was incurred in the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 3. Comedones are secondary to service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.310 (2013). 4. Keloids of the upper chest and scalp were not incurred in or aggravated by the Veteran's active duty service, nor may they be presumed to be incurred in or aggravated by such service; the keloids of the upper chest and scalp are not secondary to service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 5. Petechiae was not incurred in or aggravated by the Veteran's active duty service, nor may such disorder be presumed to be incurred in or aggravated by such service; petechiae not secondary to service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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). Duty to Notify The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After reviewing the claims folder, the Board finds that the claimant has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefits currently sought. In a letter sent in December 2006, the claimant was informed of the information and evidence necessary to warrant entitlement to service connection. He was also advised of the types of evidence VA would assist him in obtaining and his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The letter also notified the claimant of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim and is not prejudiced by any technical notice deficiency in the course of his appeal. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). These facts notwithstanding, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. All available pertinent records, in-service and VA, have been obtained. The Board reopened the Veteran's claim in December 2012, and additional development, including obtaining nexus medical opinions, was accomplished. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to adjudicate the claim and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4 Laws and Regulations The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet.App. 439 (1995). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, 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 service. 38 U.S.C.A. § 1116(f). Moreover, it is provided that the diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.308(a)(6)(ii). These diseases include chloracne or other acneform disease consistent with chloracne. 38 C.F.R. § 3.309(e); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010). Although the appellant may testify as to symptoms he perceives to be manifestations of disability, the question of whether a chronic disability is currently present is one which requires skill in diagnosis, and questions involving diagnostic skills must be made by medical experts. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Analysis As noted in the introduction, service connection has already been established for skin disabilities diagnosed as recurrent seborrhea and as left and right chest keloids. The Veteran has filed a claim for additional skin disability, to include as due to herbicide exposure in Vietnam. The questions involved in this case are clearly medical in nature. The Board finds that the record as it stands includes adequate medical evidence to allow for appellate review. The Board remanded this case for an examination to clarify and differentiate the several types of skin disorders shown to be present. Such examination was conducted in July 2013, the Board finds the report of the examination to be the most significant item of evidence addressing the underlying questions in this case. After reviewing the claims file and examining the Veteran, the July 2013 VA dermatology examiner offered a number of medical opinions. The Board finds that the essential examination findings and opinions can be summarizes as follows: -the comedonal lesions noted in February 2005 and April 2007 were not present on examination in July 2013; the lesions are not chloracne or a like disorder as they do not have the characteristics of such; however, the condition has been aggravated by the topical medication taken for the service-connected seborrheic dermatitis. -the 2 keloids on the lower chest are the same documented in service records (and for which service-connection has already been granted); however, there are new keloids on the left upper chest and occipital scalp which are not caused by the 2 keloids on the lower chest, are not caused by herbicides (keloids are not a known manifestation of herbicides), and are not caused by or aggravated by the service-connected seborrheic dermatitis. -the nummular eczema is related to the skin conditions noted in service treatment records; eczema is a recurrent condition. -the petechiae is not related to skin conditions noted during service, is not related to herbicide exposure (petechiae is not a known cutaneous manifestation of herbicides), and is not caused by or aggravated by the service-connected seborrheic dermatitis. -the folliculitis is related to the papules noted in service treatment records, and is also likely aggravated by the topical medication used to treat the service-connected seborrheic dermatitis. The medication may lead to follicular irritation , plugging, local immune suppression leading to folliculitis. The Board again notes that the questions involved in this case involve complex medical determinations as to a number of different skin disorders which have been diagnosed on examination. The Board is not competent to address medical questions, nor is it shown that the Veteran or his representative are competent to offer diagnoses or nexus opinions. In view of the complex medical nature of these questions the Board places significant probative weight on the opinions expressed by the July 2013 examiner identified as a medical doctor in dermatology. The examination report is quite detailed and includes numerous references to service treatment records as well as prior examination reports. The examiner set forth very detailed reasons for the conclusion drawn after examination of the Veteran and review of the several volume claims file. The July 2013 VA examiner essentially found that there is a medical basis for linking the nummular eczema and folliculitis to skin conditions noted during service. The examiner further found that the folliculitis was likely as not aggravated by medication taken for the already service-connected seborrheic dermatitis. The examiner was also of the opinion that the Veteran's comedones (apparent at previous examinations buy not active at the July 2013 examination) had also been aggravated by the medication for the seborrheic dermatitis. In sum, there is a basis for granting service connection for the nummular eczema, folliculitis and comedrones. However, the examiner offered negative opinions for the new keloids of the upper chest and scalp, and the petechiae. The Board finds the July 2013 opinions to be adequately explained and supported by the other evidence of record. ORDER Entitlement to service connection is warranted for nummular eczema, for comedones, and for folliculitis. To this extent, the appeal is granted. Entitlement to service connection is not warranted for keloids of the upper chest and scalp, or for petechiae. To this extent, the appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs