Citation Nr: 1808160 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 10-26 872 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a skin disorder, to include soft tissue sarcoma, skin cancer, and skin rash. WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to June 1969 in the United States Army. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from September 2009 and January 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In March 2012, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for a hearing. In April 2012, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. In February 2013 and March 2016, the Board remanded the claims to the AOJ for additional development. The case has since been returned to the Board. In February 2017, the Board requested an advisory medical opinion from the Veterans Health Administration (VHA), which was received in May 2017. In August 2017, the Veteran was sent a copy of the opinion and given 60 days to submit further evidence or argument. See 38 C.F.R. §§ 20.901, 20.903 (2017). FINDINGS OF FACT 1. The Veteran does not have soft tissue sarcoma. 2. The Veteran's skin disorders did not manifest during active service and have not been shown to be causally related to his active service. CONCLUSION OF LAW The criteria for service connection for a skin disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has considered the Veteran's claim and decided entitlement based on the evidence or record. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). 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, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. The law also establishes a presumption of entitlement to service connection for diseases associated with exposure to certain herbicide agents and also provides a presumption of exposure for veterans who served in the Republic of Vietnam. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), to include soft tissue sarcoma, if manifested to a compensable degree at any time after active service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(ii). VA shall consider all information and lay and medical evidence of record. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran asserts that his skin disorders were incurred in or are causally related to his military service to include herbicide exposure during his service in Vietnam. The Veteran's service treatment records are unremarkable for any complaints, treatment, or diagnoses related to a skin disorder. At his June 1969 separation examination, his skin was normal and he denied having or having had any skin diseases. With regard to soft tissue sarcoma, the Veteran stated that he was told by a VA physician that he had soft tissue sarcoma in November 2009. A November 2009 VA treatment record indicates that he had a skin biopsy and was diagnosed with basal cell carcinoma. Whether service connection is claimed on direct, presumptive, or secondary basis, a necessary element for establishing such a claim is the existence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (1997); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Although he has a history of basal cell carcinoma, which will be addressed below, there is no medical evidence establishing that the Veteran has soft tissue sarcoma. Therefore, the Board finds that service connection is not warranted for this condition. In this case, the medical evidence indicates that the Veteran has been diagnosed with several skin disorders, including: herpes zoster, tinea corporis vs. contact dermatitis, basal cell carcinoma, recurrent tinea, bullous pemphigoid vs. epidermolysis bullous acquisita, actinic keratoses, folliculitis, and dermatitis herpetiform. The evidence also indicates that he served in the Republic of Vietnam during the Vietnam era; therefore, it is presumed that he was exposed to herbicide agents, to include Agent Orange. Thus, the Veteran has met the first and second elements of service connection, i.e., current diagnosis and in-service injury, disease, or event. The remaining element and dispositive question in this case is whether any of the Veteran's current skin disorders are related to his military service, including any herbicide exposure therein. In this regard, the Board notes that the only medical evidence of record weighs against the claim. The report of a February 2015 VA examination indicates that the Veteran was diagnosed with bullous disorders (bullous pemphigoid vs. epidermolysis bullosa acquisita), actinic keratosis, and basal cell carcinoma. The VA examiner opined that it was less likely than not that the claimed disabilities were incurred in or caused by his military service. The examiner noted that basal cell carcinoma and actinic keratosis were secondary to ultraviolet light exposure, that his bullous disorders were likely autoimmune conditions, and that dermatitis herpetiformis was likely a secondary complication of celiac disease. The examiner also noted that none of his skin disorders were presumptively secondary to Agent Orange exposure. The Board notes that the February 2015 VA examiner partially based her opinion on the fact that the Veteran's skin disorders were not among the list of diseases presumed to be associated with Agent Orange exposure. As noted above, if a disease is not on the list of diseases presumed to be associated with Agent Orange exposure, service connection may still be established on a direct basis. Therefore, as the February 2015 VA examiner's opinion was inadequate, the Board requested a VHA medical opinion. In May 2017, a VHA examiner reviewed the Veteran's claims file and opined that it was unlikely that his current skin diagnoses were related to his military service or any military exposures. With regard to diagnoses of bullous skin eruptions/rashes, dermatitis herpetiform, skin rash, bullous pemphigoid, and epidermolysis bullosa acquisita, the VHA examiner indicated that these were differential diagnoses referring to the same blistering eruption on various areas of the body. The examiner opined: I think it is UNLIKELY diagnoses could be related to his military exposures, including agent orange. Dermatitis herpetiformis is cutaneous manifestation of gluten sensitivity. ... After literature evaluation, I have been unable to identify a substance or medication inducing dermatitis herpetiformis, though it has been reported that inorganic iodide ingestion can worsen symptoms, and obviously, consumption of grains containing gluten also worsens symptoms. (Bolognia) Even the other diagnoses on his differential diagnoses, bullous pemphigoid and epidermolysis bullosa acquisita are UNLIKELY to be due to military exposures. Bullous pemphigoid is known to be sometimes drug-induced, most commonly due to furosemide, antibiotics, potassium iodide, and captopril. This association is not present in epidermolysis bullosa acquisita. There is not a report of either diagnoses being associated with hydrocarbons/pesticides/etc. With regard to actinic keratoses and basal cell carcinoma, the VHA examiner indicated that these conditions were very common conditions usually due to excessive sun exposure. The examiner noted that sun exposure during Vietnam may have contributed to the Veteran's overall ultraviolet light exposure, but that the majority of one's sun exposure is before age 18 and that it was difficult to hold his sun exposure in Vietnam responsible for these very common diagnoses. The examiner further opined: Dioxin, a trace toxin found in herbicides used during the Vietnam war, is a known human carcinogen, but data strongly correlating it to cutaneous malignancy is currently lacking. I thus find it UNLIKELY that herbicide exposure is significantly responsible for his [actinic keratoses] and [basal cell carcinomas]. In this case, the Board finds the most probative evidence weighs against the claim. The first objective evidence of the claimed disability occurred many years after service. The passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, the only medical opinions on the question of etiology, weigh against the claim. Although the February 2015 VA examiner's opinion lacks probative value for the reasons discussed above, the VHA examiner reviewed the Veteran's medical history, considered his lay assertions, and provided rationale for his/her opinion. Therefore, the Board finds the VHA examiner's opinion highly probative. The Board has considered the evidence of record, lay and medical. With regard to the lay evidence of record, the Veteran is competent to describe what he has personally observed or experienced; however, the ultimate questions of diagnoses and etiology in this case extend beyond an immediately observable cause-and-effect relationship and are beyond the competence of lay witnesses. The Board is grateful for the Veteran's honorable service; however, given the record before it, the Board finds that evidence with regard to this claim does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Accordingly, the claim of service connection for a skin disorder must be denied. ORDER Entitlement to service connection for a skin disorder is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs