Citation Nr: 1807134 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-10 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a skin disorder, to include as due to herbicide-agent exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W. Ripplinger, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from March 1964 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In September 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A copy of the transcript is associated with the Veteran's claim file. This matter was previously before the Board in October 2015 and September 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. A non-cancerous skin disability - diagnosed as asteatotic dermatitis; psoriasis; urticaria; seborrheic dermatitis; contact dermatitis; onychomycosis; actinic karatoses; tinea corporis; tinea pedis; solar keratosis; seborrheic keratosis; cherry red angiomas; and xerosis - was demonstrated years after service and is not etiologically related to a disease or injury in service, including exposure to herbicides. 2. Skin cancer, diagnosed as squamous cell carcinoma, was demonstrated years after service and is not etiologically related to a disease or injury in service, including exposure to herbicides. CONCLUSIONS OF LAW 1. A non-cancerous skin disability was not incurred in or aggravated by active duty service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 2. Skin cancer was neither incurred in nor aggravated by active service, nor may its incurrence or aggravation be presumed. 38 U.S.C.A. §§ 1110, 1112, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that service connection is warranted for a skin disability, to include skin cancer, as it was incurred due to herbicide exposure during active service in Vietnam. He also contends that his skin conditions are the result of in-service sun exposure. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service' - the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To demonstrate chronic disease in service, 38 C.F.R § 3.303(b) requires "manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time . . . ." Id. "When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity." Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease" in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). The record establishes the presence of several current skin disabilities. A September 2014 private examination documented diagnoses of asteatotic dermatitis; psoriasis; urticaria; seborrheic dermatitis; contact dermatitis; onychomycosis; and actinic karatoses. A February 2017 VA examination additionally diagnosed tinea corporis; tinea pedis; solar keratosis; seborrheic keratosis; cherry red angiomas; and xerosis. The Board notes that the Veteran testified at the September 2014 Board hearing regarding squamous cell carcinoma (SCC), but the only medical records of SCC pre-date the Veteran's claim; although SCC was not documented during the claims period, its nexus to service was considered as part of the other skin conditions addressed in the October 2017 VA opinion. An in-service injury is also demonstrated. VA regulations provide for a presumption of service connection for certain disabilities associated with herbicide-agent exposure under 38 C.F.R. §§ 3.307 and 3.309. The Veteran has verified service in the Republic of Vietnam and his exposure to herbicides is therefore presumed. See 38 U.S.C. §§ 1116(f), 1154; 38 C.F.R. § 3.309(e); see also Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97. The Veteran has also reported that he was exposed to the sun during his service in Vietnam. The Board finds that such exposure is consistent with his active duty service and notes that the Veteran is competent to report injuries that occurred during active duty. The record does not establish a nexus between the any of the Veteran's skin conditions and military service. Beyond treatment for gonorrhea and a penile skin lesion, service records are negative for complaints or treatment related to the skin; the Veteran denied having a "tumor, growth, cyst, or cancer" in a March 1966 Report of Medical History at separation; and physical examination was normal at the March 1966 separation examination. There is also no evidence of a malignant tumor within a year from the Veteran's separation from active duty service to allow for service connection on a presumptive basis as a chronic disease. See 38 C.F.R. § 3.307, 3.309. The Veteran was treated after service in July and August 1966 for warts on the penis, however there is no indication that this diagnosis reached the level of a malignant tumor. The next objective evidence of skin condition dates from 2008, more than 40 years after service, when private histopathology reports noted advanced verrucous keratosis and advanced adenoid keratosis. Although service connection is also possible on a presumptive basis for certain diseases associated with herbicide exposure, none of the Veteran's diagnosed conditions are subject to this presumption contained within 38 C.F.R. §§ 3.307 and 3.309. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, while service connection on a presumptive basis is not possible for the Veteran's claimed disabilities, the Board will determine whether service connection is warranted as directly due to active duty service, to include exposure to herbicide agents and other in-service injuries. There is no competent medical evidence in support of the claim. The Veteran's private and VA treating physicians have not identified a link between the Veteran's various skin disabilities and active service, to include herbicide-agent exposure. The only medical opinions of record addressing the etiology of the Veteran's skin conditions are the February 2017 VA examination and October 2017 VA opinion, which weigh against the claim. After physically examining the Veteran and reviewing the claims file, the February 2017 VA examiner concluded that the Veteran's skin conditions were less likely than not related to service. First, the examiner noted that there was no documentation of any skin complaints while in service other than venereal warts, a penile skin lesion, and gonorrhea. The examiner noted that the penile sore and discharge were diagnosed and treated with no residual effects, while venereal warts (condyloma and nevi) were treated immediately after service with no further complaints noted in the records: the Veteran had no penile lesions on the current exam and no residuals. Second, the February 2017 VA examiner cited the passage of time as weighing against service connection: "no mention is made of skin problems until 2008, 42 years after service." Third, the examiner noted that there are other likely causes of the Veteran's conditions. Tinea and onychomycosis "are common fungus infections seen worldwide," and the other skin conditions "are also fairly common [and] found in the general population, most as a result of genetics, aging [and]/or cumulative exposure to the sun, [and] not unique to the military." The examiner cited to the Veteran's playing outdoors and involvement in outdoor sports in his youth as well as free time spent as an adult doing chores for his home and yard. Finally, the examiner noted that the Veteran had no in-service complaints for severe sunburn or skin conditions that would put him at risk for his current skin conditions, and no skin problems listed at separation. In sum, the examiner found it less likely than not that two years of military service caused the Veteran's skin disorders forty years later and rather attributed them to aging and chronic cumulative sun exposure over the course of his life. In an October 2017 VA opinion, the same examiner reiterated that the Veteran's skin conditions were less likely than not related to his service. In this opinion, the examiner considered whether the Veteran's conditions could be due to herbicide-agent exposure but found instead that "[t]he preponderance of evidence" shows that the Veteran's skin conditions are more likely due to the effects of aging, years of sun exposure before and after service, and his genetic skin type's predisposition to skin damage and cancer. The Board has considered statements from the Veteran in support of his claim, such as the statement in a March 2012 VA medical center (VAMC) treatment note that he had a rash that started in service and was treated in service, or his statement in a June 2013 VAMC treatment note that "generalized truncal itching" had been present since his time in Vietnam. The Veteran is competent to relate symptoms he has experienced. See Falzone v. Brown, 8 Vet. App. 398 (1995). The Board does not find these statements credible, however, as they are contradicted by the medical record. The Veteran's service treatment records contain no record of itching or rash in service. There are no treatment records for such conditions until decades after service, which weighs against a finding that itching and rash have existed throughout that period. In addition, the Veteran stated in a September 2014 statement that his hospitalization and treatment in July and August of 1966 was due to treatment for his current claimed skin conditions. The Board finds the Veteran is not competent to make such a statement, however, because he has not demonstrated his medical credentials to make medical findings and render medical opinions. See Barr, v. Nicholson, 21 Vet. App. 303, 307 (2007); Grover v. West, 12 Vet. App. 109, 112 (1999). The causation of warts on the penis and the relationship of penile warts to later-developed skin conditions are complex medical findings that are outside the purview of a layperson. Furthermore, the February 2017 VA examination directly contradicted the Veteran's statement when it found that the condyloma and nevi treated in July and August of 1966 resolved without residuals and were not present on examination. In sum, service connected is not warranted for the current skin conditions or SCC because the medical evidence weighs against a nexus between service and the skin conditions, including exposure to herbicide agents. The medical evidence instead demonstrates that the Veteran's skin conditions are the result of aging, years of sun exposure, and the genetic predisposition of the Veteran's skin type. Accordingly, service connection for a skin disorder is denied. Duties to Notify and Assist VA has met its statutory and regulatory duty to notify in an October 2011 letter. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5107; 38 C.F.R. §§ 3.159(b). Beyond the duty to notify, VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4), 3.326. VA has obtained referenced VA and private records; provided a VA examination that reviewed the evidence of record and included an interview with the Veteran; and obtained a VA opinion to further address possible theories of service connection. To the extent that the representative contends the clinician who provided the February 2017 VA examination is unqualified to opine as to dermatological disorders, the Board finds there is no evidence that the medical officer is not competent or qualified to render a medical opinion in this case. The clinician is a trained physician and is therefore able to provide competent medical evidence. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). The Board accordingly finds that VA met its duty to assist the Veteran. Moreover, the AOJ complied with previous remand instructions, including obtaining additional treatment records and VA examinations and opinions. The Board therefore finds that VA met its duty to assist the Veteran. ORDER Entitlement to service connection for a non-cancerous skin disorder is denied. Entitlement to service connection for skin cancer is denied. ____________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs