Citation Nr: 1801916 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 02-13 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for skin rashes, to include as due to exposure to herbicide agents. 2. Entitlement to service connection for bodily itching, to include as due to exposure to herbicide agents. REPRESENTATION Veteran represented by: Deborah C. Taylor ATTORNEY FOR THE BOARD S. Kim, Associate Counsel INTRODUCTION . The Veteran served on active duty from March 1971 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In June 2013 and May 2015, the Board remanded the claims for additional development. The Board notes that additional evidence, to include an additional statement from the Veteran (received in November 2017) and duplicative medical records (received in May 2017), was added to the record after the issuance of a February supplemental statement of the case. The Veteran waived initial agency of original jurisdiction (AOJ) consideration of the additional statement in the accompanying correspondence from his representative. See 38 C.F.R. §§ 20.800, 20.1304 (2017). In July 2017, the Board requested an expert medical opinion from the Veterans Health Administration (VHA) pursuant to 38 C.F.R. § 20.901 (2017). A response was provided later that month. FINDINGS OF FACT 1. The Veteran's skin rashes were not caused or aggravated by a disease or injury in active service. 2. The Veteran's bodily itching was not caused or aggravated by a disease or injury in active service. CONCLUSIONS OF LAW 1. The criteria for service connection for skin rashes are not met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for service connection for bodily itching are not met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist With respect to the Veteran's claims decided herein, no notice deficiencies have been alleged by the Veteran or his representative. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."). With respect to the duty to assist, as noted in the Introduction above, the Board obtained a VHA expert opinion in July 2017 addressing the etiology of the Veteran's skin disabilities. The Veteran and his representative were provided a copy of the opinion, and an opportunity to provide evidence or argument in response. In an October 30, 2017 statement, the Veteran's representative challenged the adequacy of the VHA expert's opinion, noting that the examiner was not "absolutely sure" or "one hundred percent" certain that the Veteran's skin condition was not the result of his exposure to herbicides. Even if this is the case, absolute certainty in a medical determination, whether supportive of a denial or an allowance, is not required for a medical opinion to be deemed adequate for the purposes of adjudicating Veterans benefits claims. As discussed below, the VHA expert's opinion that it is less likely the Veteran's skin disorders were caused by in-service herbicide exposure is well reasoned and supported by a strong clinical rationale. The fact that the VHA expert did not unequivocally rule out herbicide exposure as the proximate cause of the Veteran's skin disability, does not in and of itself render the opinion inadequate for purposes of reaching a decision on the merits in this case. II. Pertinent Law and Regulations Service connection will be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disability first diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Service connection requires 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain diseases associated with exposure to certain herbicide agents 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 the Republic of Vietnam during the Vietnam Era. Thus, his exposure to herbicides 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 acne form 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). 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). Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2,105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). III. Analysis The Veteran contends that his claimed skin rashes and bodily itching disabilities developed due to his active service in Vietnam, to include exposure to herbicide agents. He maintains that he has been experiencing skin symptomatology "for more than 30 years" since separation and that herbicide exposure was "a direct cause of skin irritations, see March 2015 Statement, as he "had to spray herbicides without any protection," see February 2017 Statement from the Representative. The Veteran's service in Vietnam during the Vietnam Era is verified, and his exposure to herbicide agents is conceded. Service treatment records reflect that the Veteran's skin was found to be normal in a September 1970 enlistment examination report. In a November 1971 service treatment record, the treating physician observed that "skin just below head at penis [was] broken" and advised the Veteran to "keep area clean [and] dry." A March 1973 separation examination report notes a normal finding as to the skin. Post service, a November 1974 Medical Certificate notes that the Veteran complained of "sores on hands, knees, [and] face" and that he appeared to be in good health otherwise. Impression of "healing impetiginous lesions' was provided at this time and the Veteran was advised to use "soap-water" and not to "scratch." A December 1974 VA nursing note documents that the Veteran had "sore on R shin," but "no injury," and that "he scratched his leg [with] fingernails that became infected apprx 3 weeks ago." The Veteran also stated that "he was here about 2 months ago because of slow healing sores on both knees [and] hands." In a December 1974 Medical Certificate, the treating physician diagnosed the Veteran with "leg lesion, [rule out] G.C. (gonorrhea)." The treating physician noted that "2-3 months ago, [the Veteran] had 2 pustular sores on his legs [and] one small one on his finger." Two weeks later, the treating physician wrote, the Veteran had "a sore on his right lower leg that [was] 2x3 cm . . . ." A July 1994 Medical Certificate indicates that the Veteran had "problems [with] itching from perspiration." He also reported "rash on L arm . . . that resolved in a few hours." An impression of heat rash was provided at that time. In January 1995, the Veteran underwent an Agent Orange examination. The examiner noted the Veteran's complaints of "intermittent body itch" after bathing and other moist environments. Itching resolved once the skin was dry. There was no rash at this time. A December 2004 VA treatment note documents that the Veteran has had "skin rashes burning at forehead for 2-3 years, easily irritated." The treating physician assessed that the Veteran had dermatitis of the forehead. A subsequent December 2004 VA treatment note documents an assessment of possible lipoma of the left knee. The Veteran filed the instant claims in September 2008. In November 2014, he was afforded a Skin Disability Benefits Questionnaire (DBQ) examination. The examiner rendered a diagnosis of dermatitis and noted the Veteran's report that he has had a history of skin rash across his forehead and general body itching since service. The examiner further noted that there was no current diagnosis of acne/chloracne at the time. Current symptoms included continued rash over his forehead. The examiner then opined that it was less likely as not that the Veteran's claimed skin rashes and bodily itching disabilities were due to service. As rationale, she stated that "the Veteran wears a cap across his forehead that may lead to contact dermatitis," which was "a possible etiology." She also cited the December 2004 VA treatment record noting the Veteran's history of forehead rash and remarked that such was "approximately 30 year[s] following military service," while positing that environmental exposure from working in the materials maintenance industry was a possible reason without further explanation. With regard to exposure to herbicide agents, the examiner stated that "symptoms related to exposures are usually greatest [at] the time of the exposure and decrease when the exposure is removed" and again stressed that "the onset of symptoms is not documented until 30 years post military service." In an August 2015 DBQ report, the examiner noted the Veteran's report of intermittent itching "all over the remaining body" and remarked that there were "a few dark colored small papules on the dorsum of bil[ateral] hands" as well as hyper pigmented skin on the forehead. The examiner then opined that it was less likely as not that the claimed skin rashes and bodily itching disabilities were due to service. She explained that the enlistment examination report was negative, and that he was "treated for body rash as heat rash." She also noted that now the Veteran was "with hyperpigemneted [sic] area [in his] forehead" as well as with "[d]ry skin." There was no rash. The examiner also wrote that there was "[n]o [follow up] with derm/pcp" and "[n]o meds [e]ither topical and/or oral meds" and remarked that "[the] [m]ost common etiology for skin itching is dry skin" and that "his itching could be a side effect of Hydrochlorthiazide-dermatiyis and photosensitive dermatitis." The examiner concluded that there was no nexus between the Veteran's claimed disabilities and "his [V]iet[nam] activity due to the more common etiology of his rash as above." Given that the above-noted DBQ examiners have each based their opinions, in large part, on a lack of documented complaint or treatment for a period of at least 30 years since the Veteran's separation from service, without addressing all of the pertinent medical evidence of record, their opinions are of limited probative value. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). In the July 2017 VHA opinion, the dermatology specialist provided a negative nexus opinion for the claimed skin disabilities, to include based on exposure to herbicide agents. The VHA specialist initially advised that "[t]he only skin conditions known to be related to herbicides used in Vietnam [were] chloracne and porphyria cutanea tarda (PCT)" and that "[o]ther skin rashes and pruritus have not been found to be related to exposure to herbicides." The VHA specialist then surmised that a possibility that the Veteran's in-service skin complaint may have been symptoms of chloracne or PCT was "very unlikely" given that the Veteran did not present specific physical symptomatology that accompanied those conditions, to include "severe acne" appearing within one year after exposure to dioxin in herbicides and blistering of the skin in sun-exposed areas. Further, the VHA specialist found that the November 1971 service treatment record noting that "skin just below head at penis [was] broken" was an indication of "genital sores" which would not have "caused ongoing generalized itch or other rashes." She also found that the post-service November 1974 report of "an infected area on the hand, knee, and face which [was] slow to heal" and December 1974 report of an infected sore on the shin indicated transient sores, which again "would not have led to generalized itching or other types or rashes." The VHA specialist then identified the likely onset of the Veteran's current skin disabilities from the July 1994 medical certificate which documented "a 1 month history of itching when perspiring" as well as from the January 1995 Agent Orange examination report which described "a body rash for 1 year and history of intermittent body itch." She noted that such onset was "significantly after the end of service" and indicated the possibility of nexus was unlikely in light of such delayed onset and the Veteran's clinical history discussed above. The VHA specialist added that the Veteran was diagnosed in May 2016 with irritant dermatitis of the hands and hyperpigmentation of the forehead without rash. The specialist noted that while irritant dermatitis is caused and perpetuated by ongoing exposure to chemical or environmental agents which cause irritation, it is a condition that would not be sustained after the removal of the irritants. Thus, the Veteran's current irritant dermatitis could not be due to exposure to irritating herbicides in the remote past. The conditions diagnosed by the dermatologist recently are not likely to be related to his service, and are different from what was described while he was in service. The Veteran's current skin diagnoses pertinent to the claimed skin rashes and bodily itching include dermatitis and irritant contact dermatitis. See May 2016 VA dermatology consult note. The key question at issue in this case is whether such diagnoses are related to service, to include as due to exposure to herbicide agents. The Board has first considered whether service connection may be granted for the claimed skin rashes and bodily itching disabilities on a presumptive basis as chronic diseases; however, such diseases are not among the conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Moreover, while the Veteran is presumed to have been exposed to herbicide agents during his Vietnam service, he has not been diagnosed with diseases for which service connection may be granted due to exposure to herbicide agents on a presumptive basis, to specifically include chloracne or other acneform disease consistent with chloracne, which was manifest to at least a compensable degree within a year after the last date of his exposure to herbicide agents. See 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). As such, service connection due to herbicide exposure on a presumptive basis is not warranted for the claimed skin rashes or bodily itching disability. 38 U.S.C.A. §§ 1101, 1112, 1116; 38 C.F.R. §§ 3.307, 3.309. While the record reflects current diagnoses relevant to the claimed skin rashes and bodily itching, there is no medical evidence to establish that such disabilities had their onset during the Veteran's service, to include his exposure to herbicide agents. In this regard, the Board places great probative weight on the July 2017 VHA opinion that the Veteran's claimed skin rashes and bodily itching are not due to service. The July 2017 VHA specialist determined that the claimed skin disabilities were not due to service, to include exposure to herbicide agents. She explained that the claimed skin disabilities are not known to be related to exposure to herbicide agents and that her review of the Veteran's clinical records did not reveal that he presented symptomatology related to such skin conditions with known relationship to herbicide agents during or post service. As for the Veteran's November 1971 in-service skin complaint, the VHA specialist found that such would not have caused ongoing generalized itch or other rashes, especially given that the post-service medical records reflect skin problems of transient nature, and the actual onset for the current skin disabilities did not occur until much later in 1994 or 1995. The examiner noted that although the Veteran has irritant dermatitis, such is caused by ongoing exposure to chemical or environmental agents and would not be sustained after removal of the irritants. Thus, his current irritant dermatitis could not be due to exposure to irritating herbicides in the remote past. The specialist concluded that the Veteran's current disabilities are different from those described while he was in service. As the July 2017 VHA opinion was based on full consideration of the record and the VHA specialist's significant expertise in dermatology, the Board places great probative weight to her opinion. The examiner also considered and acknowledged the lay statements in addition to the medical evidence of record in reaching her conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). No contrary medical opinion is of record. As for lay assertions of medical nexus, the Board emphasizes that the claims under consideration fundamentally turn on the matter of whether there exists a link between the Veteran's claimed skin rashes and bodily itching disabilities and his military service, to particularly include exposure to herbicide agents. While lay persons are competent to provide opinions on some medical issues, the diagnoses and etiologies of skin disabilities are complex medical matters in the field of dermatology that fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Here, as neither the Veteran nor his representative is shown to have the education, training or experience to competently opine as to diagnosis and medical nexus of the claimed skin disabilities, the lay assertions in this regard have been assigned minimal probative value, and a significant probative weight has been afforded to the July 2017 VHA specialist's opinion for reasons articulated above. In sum, the preponderance of the evidence is against the Veteran's claims, the "benefit of the doubt" doctrine is not applicable, and the appeal as to the issues of entitlement to service connection for skin rashes and service connection for bodily itching must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Entitlement to service connection for skin rashes is denied. Entitlement to service connection for bodily itching is denied. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs