Citation Nr: 1630645 Decision Date: 08/02/16 Archive Date: 08/11/16 DOCKET NO. 13-25 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a skin rash of the arms, face, and hands, to include as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from August 1962 to August 1965; May 1966 to April 1969; and July 1970 and April 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In May 2016, the Veteran was afforded a videoconference hearing before the Board. A transcript of this hearing is of record. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the time period in which exposure to Agent Orange is presumed, but he does not have a skin disability that is among the disabilities recognized by VA as being etiologically related to Agent Orange. 2. The Veteran's assertions of continuity of symptoms associated with a skin rash of the arms, face, and hands from service to the present time are not credible. 3. The preponderance of the evidence is against a conclusion that a skin rash of the arms, face, and hands is etiologically related to any disease, injury, or incident during service, to include exposure to Agent Orange; skin cancer is not shown to a compensable degree within one year of service CONCLUSION OF LAW The criteria for service connection for a skin rash of the arms, face, and hands, to include on a presumptive basis as due to exposure to Agent Orange or due to chronic disability, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Duty to Assist/Standard of Review With respect to the matter herein decided, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). No arguments in this regard have been put forth by the Veteran and any due process concerns have been addressed by the Board. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including cancerous tumors, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases listed under 38 C.F.R. 3.309(a), such as cancerous tumors. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain diseases associated with exposure to certain herbicide agents, to include Agent Orange, used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). In this case, the Veteran's service record reflects his service in Vietnam during the Vietnam Era. Thus, his exposure to Agent Orange is presumed. Id. The diseases that are entitled to presumptive service connection based on herbicide exposure are listed in 38 C.F.R. § 3.309(e). Under 38 C.F.R. § 3.309(e), presumptive service connection based on Agent Orange exposure is available for the following diseases: 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; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 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 one exception being that chloracne or other acneform disease consistent with chloracne shall have become manifest to a degree of 10 percent or more within a year after the last date on which a Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Veteran does not have a skin disability entitled to presumptive service connection based on Agent Orange exposure listed at 38 C.F.R. § 3.309(e), and VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. Notice, 59 Fed. Reg. 341, 346 (1994), 61 Fed. Reg. 41,442, 41,449 and 57, 586, 57,589 (1996), and 67 Fed. Reg. 42,600, 42,608 (2002). However, a claimant, such as the Veteran in the instant case, is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Summarizing the pertinent facts with the above criteria in mind, the service treatment reports do not reflect treatment for a skin disability, and the Veteran does not contend that he was treated for a skin disability therein. Instead, he has asserted that he developed a skin rash of the arms, face, and hands, as a result of his [presumed] in-service-exposure to Agent Orange. In his claim for service connection for such disability filed in December 2010, he, alternately, reported that he had suffered from skin rashes on the face, arms, and hands since service and for a duration of 10 years. At the hearing before the undersigned he stated that he had been suffering from a skin rash for a "a number of years" but could not remember the exact date such symptoms started. The first post service evidence of treatment for a skin disability, diagnosed as carcinoma in situ of the skin, is dated from the mid 2000s, with the Veteran reporting having skin caner "in the past" when he first presented for VA treatment in May 2005. There is no clinical evidence or opinion linking a skin disability to service, to include exposure therein to Agent Orange. With regard to the Veteran's assertions of continuity of symptoms associated with a skin rash from service to the present time, the Board finds such to not be credible. 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 Caluza, supra. In this regard, the Veteran's history of the onset of symptoms has not been consistent, to include within the very application that gave rise to this appeal. Moreover, when the Veteran first filed a claim for service connection in June 1988, he made not mention of a skin disability. Such silence in this initial application for service connection, when the Veteran is otherwise affirmatively speaking, would not be supportive of any assertions by the Veteran of continuous problems with a skin rash since service. Aside from any credibility issues, to whatever extent the assertions of the Veteran (to include through his representative) are being advanced in an attempt to establish that the disability at issue is related to service, such attempts must fail. Matters relating to the medical etiology of a disability are questions within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435(2011)), here, the specific matter as to the whether the Veteran has a skin disability that is etiologically related to service, to include the presumed exposure to Agent Orange therein, is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer). Simply stated, the determination as to whether the Veteran's rash of the arms, face, and hands is a result of service, to include exposure to Agent Orange therein, is a complex medical question for which the Veteran lacks adequate medical training to address. As his lay assertions in this regard have no probative value, the Veteran cannot support his claim on the basis of lay assertions alone. In light of the above and in sum, the Board finds that service connection for a skin rash of the arms, face, and hands is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the most probative evidence is against the Veteran's claim of entitlement to service connection for a rash of the arms, face, and hands. As such, that doctrine is not applicable, and this claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a skin rash of the arms, face, and hands is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs