Citation Nr: 1626332 Decision Date: 06/30/16 Archive Date: 07/11/16 DOCKET NO. 10-18 331 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUE Entitlement to service connection for a skin disorder, to include as due to Agent Orange (herbicide) exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD E. Blowers, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from December 1966 to December 1968, including service in the Republic of Vietnam. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the RO in Boston, Massachusetts, which, in pertinent part, denied service connection for a skin disorder (to include as due to herbicide exposure). This case was first before the Board in April 2012, where the Board, in pertinent part, remanded the issue on appeal for additional development. Upon completion of the requested development, this matter was again before the Board in June 2014, where the issue on appeal was again remanded for additional development. While cognizant of its responsibilities under Stegall v. West, 11 Vet. App. 268 (1998), as the Board grants service connection for the skin disorder of eczema in the instant decision, which is a total grant of benefits as to the issue on appeal, the Board need not address Stegall compliance at this time. Upon the instant matter again being returned to the Board, in June 2016, the Board sought a specialized Veterans Health Administration (VHA) medical opinion addressing whether a currently diagnosed skin disability was incurred in active service. The Veteran was notified that a copy of any subsequent opinion would be sent, and that the Veteran would have 60 days to review the opinion and to submit a response. Subsequently, in June 2016, the Board received an affirmative VHA medical opinion. While the Veteran has not yet received a copy of the VHA opinion, as the Board grants service connection for the skin disorder of eczema in the instant decision, the Board finds that there is no prejudice to the Veteran and sending a copy of the affirmative opinion at this time would only delay the issuance of the benefits to which the Veteran is now entitled. The Veteran testified from Boston, Massachusetts, at a January 2012 Board videoconference hearing before the undersigned Veterans Law Judge, who was seated in Washington, D.C. The hearing transcript has been associated with the record. The instant matter is a Veterans Benefits Management System (VBMS) appeal. The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran is currently diagnosed with the skin disorder of eczema. 2. During service the Veteran had skin disability symptoms and was treated for a groin-area rash. 3. The currently diagnosed eczema was incurred in active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for the skin disorder of eczema have been met. §§ 1110, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. As the instant decision grants service connection for the skin disorder of eczema, which is a complete grant of the issue on appeal, no further discussion of VA's duties to notify and assist is necessary. Service Connection for a Skin Disorder Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Eczema is not a chronic disease under 38 C.F.R. § 3.309(a). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307, 3.309. The following diseases are deemed associated with herbicide exposure under VA law: AL amyloidosis, 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, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin's lymphoma, Parkinson's disease, early onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). As such, eczema is not a disability for which presumptive service connection based exposure to herbicides may be granted. Id. Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). During the course of this appeal, the Veteran has advanced that a currently diagnosed skin disorder may be related to exposure to herbicide, foliage, and/or other environmental factors while stationed in the Republic of Vietnam, and/or may be related to skin rash symptoms and treatment during service. Initially, the Board finds that the Veteran is currently diagnosed with the skin disorder of eczema. The report from a July 2014 VA skin examination reflects that the Veteran has been diagnosed with eczema. Further, multiple private treatment records convey that the Veteran was previously diagnosed with and treated for eczema. Next, the Board finds that during service the Veteran had skin disability symptoms and was treated for a groin-area rash. Per a June 2009 statement, the Veteran advanced breaking out into a pebble-like rash on the arms, legs, and shoulders while stationed in the Republic of Vietnam. The Veteran conveyed not seeking treatment with medical at that time as "this was not a thing junior officers did." A subsequent September 1968 service treatment record reflects that the Veteran did receive treatment for a fiery red rash of the groin area. As noted above, the Veteran has also advanced that the currently diagnosed eczema may be related to one or more herbicide and/or environmental exposures while stationed in the Republic of Vietnam; however, as the Board finds in the instant decision that the currently diagnosed eczema is related to the in-service rash breakout, the Board need not address whether the Veteran had such exposures while stationed in the Republic of Vietnam. Finally, after a review of all the evidence of record, both lay and medical, the Board finds that the evidence is at least in equipoise as to whether the Veteran's currently diagnosed eczema was incurred in active service. Service treatment records reflect that in September 1968, the Veteran was treated for a rash in the groin area; however, no skin disability was noted in the subsequent September 1968 service separation examination. Per the above discussion, in a June 2009 statement, the Veteran advanced breaking out into a pebble-like rash on the arms, legs, and shoulders while stationed in the Republic of Vietnam. The Veteran advanced not seeking treatment with medical as "this was not a thing junior officers did." After returning to the United States, the Veteran did seek treatment when a rash broke out in the groin area. At the January 2012 Board videoconference hearing, the Veteran testified to developing a pebbly rash while stationed in the Republic of Vietnam. The Veteran also testified to not seeking treatment at that time due to being a lieutenant and the fact that going to sick call was frowned upon. Subsequently, the Veteran did seek treatment for a groin rash that developed during active duty while stationed in the United States. Further, the Veteran testified that skin disability symptoms, including rashes, have repeatedly come and gone since service separation, with the symptoms being particularly bad in the 1980s and 1990s. The Veteran testified to treating the symptoms at home until the 1990s, at which point the Veteran began seeking medical treatment for the skin disorder. The Veteran received a VA skin examination in July 2014. At the conclusion of the examination, the VA examiner opined that it was less likely than not that the currently diagnosed eczema was related to service; however, as this opinion contained insufficient rational and did not address all of the Veteran's contentions, the Board sought a VHA opinion in June 2016. After opining that it was less likely than not that the currently diagnosed eczema was caused either by exposure to herbicides and/or exposure to foliage and/or other environmental factors while stationed in the Republic of Vietnam, the VA examiner addressed whether the eczema was related to the in-service rash symptoms. The VA examiner noted that there was scant medical documentation during the Veteran's period of active service. Then, considering the Veteran's previous statements and testimony and the available medical evidence of record, the VA examiner opined that it was at least as likely as not that the currently diagnosed eczema was incurred in active service. In opining as such, the VA examiner relied heavily on the Veteran's testimony and other statements indicating that eczema symptoms began in service and have continued to the present. The Veteran is currently diagnosed with a skin disorder of eczema, during service the Veteran had skin disorder symptoms and was treated for a groin-area rash, and symptoms of a skin disorder have continued off and on since service separation. A VA medical examiner has opined that it is at least as likely as not that the currently diagnosed eczema was incurred in active service. Resolving reasonable doubt in the Veteran's favor, the Board finds that a skin disorder of eczema was incurred in active service. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for eczema is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs