Citation Nr: 1754891 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 14-10 136 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for prurigo nodularis, to include as due to herbicide exposure or secondary to service-connected tinea incognito. REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1970. He was awarded a Vietnam Service Medal with one Bronze Service Star. This appeal to the Board Veterans' Appeals (Board) arose from a September 2011 rating decision in which the RO, inter alia, denied the Veteran's claim for service connection for a skin rash. In October 2011 the Veteran filed a notice of disagreement (NOD). A statement of the case was issued in January 2014 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in February 2014. In April 2015, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In January 2016, the Board remanded the claim on appeal to the agency of original jurisdiction (AOJ) for further action, to include additional development. After completing the requested development, the AOJ continued to deny the Veteran's claim (as reflected in a April 2016 supplemental SOC (SSOC)) and returned the matter to the Board for further appellate consideration. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. As the Veteran served in Vietnam during the Vietnam War era, he is presumed to have been exposed to herbicide agents, to include Agent Orange, during such service. 3. Although prurigo nodularis was not shown in service, and is not among the diseases recognized by VA's Secretary as etiologically-related to herbicide agent, competent, probative medical opinion evidence indicates that such disability is at least as likely as not medically-related to the Veteran's service-connected tinea incognito. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for prurigo nodularis, as secondary to service-connected tinea incognito, are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). Given the fully favorable disposition of the Veteran's claim, the Board finds that all notification and development action needed to render a fair decision on this claim has been accomplished. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Absent affirmative evidence to the contrary, there is a presumption of exposure to certain herbicide agents (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6). Furthermore, if a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if 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. 38 C.F.R. § 3.309(e) (2017). Thus, a presumption of service connection arises for these veterans (presumed exposed to Agent Orange) who develop an identified disease recognized by VA's Secretary as etiologically related to such exposure. Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires: (1) competent evidence (a medical diagnosis) of current disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran claims that he suffers from a skin rash due to his exposure to herbicides as a result of his service in the Republic of Vietnam. During his April 2015 Board hearing, he testified that he received treatment in service for a skin rash. Review of the Veteran's service treatment records confirm that, in August 1969, the Veteran was treated for ringworm on his leg and face. The Board notes that, in a January 2010 rating decision, the RO granted service connection for tinea incognito as secondary to service-connected diabetes mellitus. Nevertheless, during his April 2014 hearing, the Veteran argued that he currently suffers from a different skin disability as a result of his exposure to herbicides that is separate and distinct from his already service-connected tinea incognito. Considering the pertinent evidence in light of the governing legal authority, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for prurigo nodularis as secondary to service-connected tinea incognito, is warranted. Pertinent April 2010 VA dermatologist treatment records reflect a diagnosis of prurigo nodularis, and such diagnosis was confirmed on April 2016 VA Examination. Thus, a skin rash other than the already service-connected tinea incognito has been demonstrated. As such, the remaining question is whether there is competent, credible, and probative evidence establishing a medical nexus between current prurigo nodularis and either service or service-connected disability. Although the Veteran contends that his current prurigo nodularis results from exposure to herbicide agents in service, presumptive service connection due to herbicide exposure is not warranted. His DD Form 214 confirms that he served in Vietnam from October 1968 to October 1969. Thus, he is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii). Nevertheless, prurigo nodularis is not among the list of disabilities for which presumptive service connection based on such exposure is available. See 38 C.F.R. §§ 3.307, 3.309. However, service connection for a disability claimed as due to herbicide exposure may also be established on a direct service-connection basis, to include as due to such exposure, or on a secondary service-connection basis. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); see also Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994). Pursuant to the January 2016 remand, the Veteran was afforded a VA examination in April 2016. Review of the claims file was noted. The examiner identified a current diagnosis of prurigo nodularis, since 2010. The examiner provided a positive nexus opinion on the relationship between the Veteran's current prurigo nodularis and his service-connected tinea incognito. Specifically, the examiner opined that "[the] current condition is 50/50 percent probability as a result of already service-connected skin condition due to persistent itching and scratching cycle." As rationale, the examiner referenced medical literature that defines prurigo nodularis as itch scratch cycle neurodermatitis of which the exact cause is unknown. The examiner stated that risk factors of prurigo nodularis include having other skin conditions, and, here, the Veteran has another skin condition of tinea incognito. Notably, the claims file does not include any contrary medical opinion addressing the etiology of prurigo nodularis. While the VA examiner's opinion is not definitive, it was expressed in terms sufficient to warrant application of the benefit-of-the-doubt doctrine. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 53-56. Given the above, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that secondary service connection for prurigo nodularis is warranted. ORDER Service connection for prurigo nodularis, as secondary to service-connected tinea incognito, is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs