Citation Nr: 1646861 Decision Date: 12/14/16 Archive Date: 12/21/16 DOCKET NO. 05-06 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a skin disorder, including chloracne. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and A.C. ATTORNEY FOR THE BOARD Patricia A. Talpins, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to December 1970, and has been awarded the Combat Action Ribbon and Vietnamese Cross of Gallantry with palm. This matter comes before the Board of Veterans Appeals (BVA or Board) on appeal from a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas in which the RO, in pertinent part, denied the issue on appeal. A notice of disagreement was received in September 2005, a statement of the case was issued in November 2005, and a substantive appeal was also received in November 2005. The Veteran testified at a Board hearing held at the RO before a Veterans Law Judge in February 2008. A transcript of this hearing has been associated with the claims file. After that hearing, the Veterans Law Judge who conducted the hearing left the Board. The Veteran was informed in a May 2016 letter that he could be afforded a new hearing under 38 U.S.C.A. § 7107 (c); 38 C.F.R. § 20.707. In a June 2016 letter, the Veteran's counsel notified the Board that the Veteran did not wish to participate in another BVA hearing. The Board remanded the Veteran's claim for further development in April 2008 and September 2013. The case has seen been returned to the Board for further review. FINDINGS OF FACT 1. The more probative and persuasive evidence of record is against finding that the Veteran has, or ever has had, chloracne. 2. The more probative and persuasive evidence of record indicates that the Veteran currently has skin diagnoses of oily skin, pruritic neck and a history of common acne. CONCLUSION OF LAW A skin disorder, including chlorine, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1116 (a), 1154, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Board must initially discuss whether VA has complied with its duties to notify and assist the Veteran in substantiating his claim of entitlement to service connection for a skin disorder, including chloracne. In this respect, the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 3.655 (2015). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). The notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) the degree of disability; and (5) the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Normally, notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, a letter sent to the Veteran in June 2009 by VA's Appeals Management Center advised the Veteran of the evidence necessary to substantiate his service connection claim for chloracne, his and VA's respective responsibilities in obtaining such evidence and information, and how VA determines disability ratings and effective dates. Although this letter was provided after the issuance of the rating decision on appeal, the timing of the notice is harmless error given the fact that the RO issued a supplemental statement of the case (SSOC) in January 2013 that essentially readjudicated the Veteran's claim. See Mayfield v. Nicholson, 20 Vet. App. 537, 541-42 (2006); affm'd Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007)(an SSOC is a readjudication). Based upon the foregoing, VA has fulfilled its duty to notify. VA also has a duty to assist the Veteran in the development of his service connection claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and other pertinent treatment records; and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that evidence necessary for equitable resolution of the issue on appeal has been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's STRs, service personnel records, post-service treatment records and private medical records have been added to the claims file. The Veteran's VBMS and Virtual VA records have also been reviewed. For the record, the Veteran has not identified any additional existing evidence that has not been obtained or is necessary for a fair adjudication of his claim. Lastly, the Veteran has been afforded several VA medical examinations dated in February 2010, August 2015 and March 2016 in relation to his skin disorder claim; and the Board observes that an addendum VA medical opinion was associated with the claims file in late-March 2016. The Board finds that the medical opinions contained in the examination reports pertaining to the Veteran's claim are adequate because they are based upon consideration of the relevant facts particular to this Veteran's medical history, describe the alleged disability in sufficient detail so that the Board's evaluation is a fully informed one, and contain reasoned explanations. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-125 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Therefore, the available medical evidence and records have been obtained in order to make an adequate determination in this appeal. In making the above-referenced findings, the Board notes that the Veteran's counsel has recently made a request that the Veteran's case be returned to the RO for a third time. In this regard, counsel states in an October 2016 letter that the March 2016 VA examination report referenced above is deficient in that the VA examiner was "asked to opine as to whether the veteran's condition initially manifested during his active military service, [but] simply found that the veteran did not suffer from chloracne or any other skin condition related to Agent orange exposure." Veteran's counsel asserts that the March 2016 VA examiner did not "address the veteran's statements that his skin condition began in service and has persisted since that time"; and therefore argues a remand is warranted. Per the Board's review of the record, the Veteran has never asserted that he experienced any skin disorder or symptomatology that could be associated with a skin condition in service. In this regard, the Veteran specifically testified during his February 2008 BVA hearing that he did not experience any skin problems in service; and that he first developed and was diagnosed with a skin disorder in 1971. See February 2008 BVA hearing transcript, pgs. 2-3. Supportive of his testimony, the claims file contains the Veteran's December 1970 service discharge medical examination report, which indicates that he had marks and scars at separation that were not considered disabling, and a skin clinical evaluation that was normal. See December 1970 Report of Medical Examination. The Board also observes that during his February 2008 hearing, the Veteran testified that he currently experienced face problems that included oily and itchy skin; and that he associated these symptoms with chlorine because he "was in Vietnam"; and the information he read said "they sprayed Agent Orange around the area he was [stationed] in. February 2008 BVA hearing transcript, pgs. 3-4. In light of this evidence, the Board finds that a remand for a VA addendum opinion addressing the "Veteran's statements" is not warranted. Therefore, the Board concludes that all reasonable efforts have been made by the VA to obtain evidence necessary to substantiate the Veteran's service connection claim. As such, no further assistance to the Veteran with the development of evidence is required; and the Board may proceed with an adjudication of the Veteran's claim on its merits. Entitlement to Service Connection As mentioned in the Introduction, the Veteran served on active duty from February 1968 to December 1970. He served in the Republic of Vietnam from August 1968 to September 1969. Based on this service in Vietnam, the Veteran is presumed to have been exposed to Agent Orange. In this appeal, the Veteran argues that he should be service-connected for chlorine, a condition he believes he has developed as a result of his exposure to Agent Orange. In fact, the Veteran argues that service connection is clearly warranted in his case as he was diagnosed and received treatment for chloracne in September 1971, within one year of his discharge from service. See November 2005 statement with substantive appeal. For reasons set forth below, the Board finds that the preponderance of the evidence is against the Veteran's claim. Therefore, the appeal must be denied. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active service or, if pre-existing such service, was aggravated thereby. 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. 38. U.S.C.A. § 11102; 38 C.F.R. § 3.304; see also Shedden v. Principi, 381 F.3d 1163 (Fed Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In addition to direct service connection, service connection for certain chronic diseases will be presumed if they manifest to a compensable degree within one year following active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, 38 U.S.C.A. § 1116 (a) provides presumptive service connection for specified diseases on the basis of herbicide exposure for veterans 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. See also 38 C.F.R. §§ 3.307, 3.309. The skin disorders subject to presumptive service connection on the basis of herbicide exposure are chloracne, acneform disease consistent with chloracne, and porphria cutanea tarda. 38 U.S.C.A. § 1116 (a)(2); 38 C.F.R. § 3.309 (e). These disorders must become manifest to a degree of 10 percent or more within one year after the last date on which the veteran was exposed to the herbicide agent. 38 C.F.R. § 3.307 (6)(ii)(emphasis added). When considering evidence supporting a service connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (reiterating that "'[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.'") (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Diagnosis of a Skin Disorder, including Chloracne Turning to the merits of the Veteran's claim, the Board initially addresses the Veteran's specific assertion that he has developed chloracne as a result of herbicide exposure in service. See March 2005 statement. In this regard, the Board observes that the medical evidence of record is contradictory in terms of whether the Veteran has, or has ever had, a confirmed diagnosis of chloracne. A confirmed diagnosis of chloracne (or another skin disorder that can be service-connected) is paramount in this case, since (as referenced above) service connection on either a direct or presumptive basis cannot be granted without evidence of a current disability. 38 U.S.C.A. § 1102; 38 C.F.R. § 3.304. Evidence supportive of a diagnosis of chloracne consists of an August 2005 medical record in which a private physician "diagnosed" the Veteran with "acute blackheads 'chlorine'" based upon (what appears to have been) a statement made by the Veteran that he had been diagnosed with this condition by another dermatologist. In addition, the claims file contains a handwritten statement that was received by VA in July 2010 from the Veteran's private physician, Dr. N.S. In this statement, Dr. S. asserts that the Veteran has developed a "'skin' disorder, recurrent" that he associates with the Veteran's "exposure to chemical(s) in the war." Dr. S. did not diagnose the Veteran with a specific skin condition; nor did he provide a basis or rationale for his opinion. In regards to evidence indicative of the Veteran not having chloracne, the claims file contains service medical records that indicate the Veteran was not seen for or diagnosed with chloracne or any other skin disorder during service. As mentioned previously, the Veteran's December 1970 service discharge medical examination indicates that he had marks and scars that were not considered disabling at separation, and his skin clinical evaluation was normal. See December 1970 Report of Medical Examination. Subsequent to service, the Veteran testified that he did not experience any skin problems in service; that in fact, he first developed and was diagnosed with a skin disorder in 1971. See February 2008 BVA hearing transcript, pgs. 2-3. He indicated during his testimony that he was diagnosed with chloracne in 1971. Id., pgs. 4-5. Pursuant to the Board review, it appears the first post-service medical notation of the Veteran having a skin problem is dated in September 1971, two years after the Veteran completed his service in Vietnam. The Veteran was seen at that time for facial acne. The September 1971 medical record reflects that the Veteran had a "complexion problem" but "had no RX in service." Post-service medical records in the claims file dated from 1971 to 2016 reveal that the Veteran has had continuous skin problems that included acne and rashes of the face, back and neck. However, other medical records reveal no skin symptomatology at all. For instance, medical records dated in October 2002 and April 2003 show that the Veteran had skin examinations that were reported to be normal. The April 2003 medical record notes next to skin "Findings: NAD" (i.e., either no active disease, no appreciable disease or nothing abnormal detected). Other records dated in April 2003 related to a separate disability make reference to the Veteran's reports of being physically impacted by skin rashes and dry skin over the years due to his exposure to Agent Orange. However, no physical examination of the Veteran's skin was conducted at that time, nor any diagnosis of a skin disorder mentioned. However, see also, e.g., VA medical records dated in August 2015 in Virtual VA (the Veteran was diagnosed with oily skin and comedones); September 2015 in Virtual VA (the Veteran was diagnosed with a dilated follicle of the upper back consistent with a clinical impression of comedone). In regards to these records, the Board finds it most notable that none of them (reflective of active skin symptomatology or not) contain a diagnosis of chloracne. On VA examination in February 2010, the Veteran was diagnosed as having a history of acne vulgaris (also known as common acne), mild oily skin and mild pruritus of the neck (found to be consistent with sensitivity to laundry detergent). The VA medical doctor who examined the Veteran found no cutaneous findings consistent with chloracne. He also found no evidence to support a diagnosis of chlorine and no evidence of residuals of chloracne. In doing so, the doctor noted that a review of the Veteran's records revealed documentation only of diagnosis and treatment for common acne, with the exception of the August 2005 medical record referenced above. Thus, he stated that there was nothing in the record previous to August 2005 that supported the diagnosis of chloracne; and nothing on examination that day that supported the diagnosis of active or residuals of chloracne. Subsequent to his initial examination with the VA medical doctor, a VA staff dermatologist examined the Veteran, reviewed his chart for accuracy, and then finalized the medical report. During a VA examination conducted in August 2015, the Veteran was seen with complaints of oily skin and blackheads of the face and upper back. The Veteran was diagnosed at that time with oily skin and comedones, for which he was offered the medication acutane. The Veteran refused the medication. Unfortunately, the VA examiner provided no other information in her examination report. As such, the Veteran was afforded another VA examination in March 2016, with an addendum medial opinion associated with the claims file later that same month. Viewing those reports in conjunction with one another, the VA doctor who examined the Veteran at that time essentially diagnosed him with "oily skin, pruritic neck and history of common acne." He stated that he found nothing on examination that supported a diagnosis of active nor residuals of chloracne; and noted that he showed the Veteran photographs of people with chloracne from the Atlas of Dermatology, and the Veteran denied ever having any lesions on his face similar to those photographs. In regards to the Veteran's diagnoses of oily skin, pruritic neck and history of common acne, the doctor stated that none of the conditions were related to Agent Orange based upon the lack of medical evidence and literature supportive of such a relationship. As such, he ultimately opined that it was less likely as not that the Veteran's oily skin, pruritic neck and history of common acne were related to Agent Orange exposure. Viewing the evidence discussed above as a whole, it is clear to the Board that the more probative and persuasive evidence refutes the chlorine "diagnosis." While the August 2005 medical record discussed above sets forth a diagnosis of chlorine and the handwritten statement from the Veteran's private physician indicates the Veteran has a recurrent skin disorder as a result of in-service chemical exposure, neither of these diagnoses sets forth any rationale or address the Veteran's testimony, service records or post-service records. To the contrary, the VA medical reports as a whole discuss all pertinent information available in the record and provide opinions that address the Veteran's skin conditions at the time of examinations. Particularly persuasive to the Board is the fact that during his most recent VA exam, the Veteran was shown pictures of people who had confirmed diagnoses of chlorine; after which he (the Veteran) stated that his skin condition never looked like the chlorine depicted in the photographs. In light of the foregoing, the Board finds that the VA examiners' opinions in this case to be more complete in comparison to the two documents of record that either set forth an unsupported diagnosis of chlorine; or an unnamed "skin disorder' caused by Agent Orange. Therefore, the VA examination opinions are afforded more probative value in the analysis of this appeal; and the Board finds that the preponderance of the evidence is against finding a confirmed diagnosis of chloracne (currently or in the past) in this case. In regards to the Veteran's diagnoses of oily skin and history of common acne, such conditions are not disorders that are subject to service connection. As for the Veteran's diagnosis of pruritic neck, the Board observes that the February 2010 and March 2016 doctors who examined the Veteran stated that this condition was most consistent with sensitivity to laundry detergent. Therefore, service connection is not warranted for this as well. In making these findings, the Board acknowledges the Veteran's contentions that he has a diagnosis of chloracne; and that he developed this disorder as a result of his exposure to herbicides in Vietnam. The Board also acknowledges the Veteran's frustrations with VA's regulations regarding the time frame a Veteran is allotted in terms of pursuing a service connection claim on a presumptive basis of herbicide exposure. See September 2005 statement with notice of disagreement; see also 38 C.F.R. § 3.307 (6)(ii) (specified diseases must become manifest to a degree of 10 percent or more within one year after the last date on which the veteran was exposed to the herbicide agent). However, while laypersons can be competent to opine regarding diagnosis and etiology of some medical disorders in some instances, see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007), the Board finds that the medical opinions that indicate the Veteran does not have, nor ever has had, a diagnosis of chlorine provided by the VA examiners of record to be more probative than the Veteran's assertions that he has this condition. The VA examiners are medical professionals who have education, training, and expertise that the Veteran is not shown to have. As such, the examiners' opinions as to the Veteran's skin diagnosis are afforded more probative value than the Veteran's statements. As to the Veteran's frustrations with the law as it is set forth in the Code of Federal Regulations, the Board can only note that it does not have the authority to make law. The Board's responsibility is to apply the law as it is written. Therefore, the Board finds that service connection for a skin disorder, to include chloracne, must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim. As such, that doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a skin disorder, including chloracne, is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs