Citation Nr: 1808337 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 12-10 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a skin disorder, to include blisters of the upper and lower extremities (hands and feet), and seborrheic keratosis, to include due to inservice Agent Orange or other chemical exposure. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul Bametzreider, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to January 1970, with additional service in the reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified in January 2017 before the undersigned. A transcript of the hearing is associated with the claims file. In June 2017, the Board remanded the issue for evidentiary development. The case has now been returned to the Board for further appellate action. FINDINGS OF FACT 1. The evidence of record does not show that the Veteran had service on the landmass of Vietnam or on the inland waterways of Vietnam, or that he was in-fact exposed to herbicides, including Agent Orange, in service. 2. A skin disorder, to include blisters of the upper and lower extremities (hands and feet), and a seborrheic keratosis, is not shown to be causally or etiologically related to any in service disease, injury, or incident. CONCLUSION OF LAW A skin disorder, to include blisters of the upper and lower extremities (hands and feet), and a seborrheic keratosis, was not incurred or aggravated inservice, and such a disorder may not be presumed to have been so incurred. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). The Veteran asserts that a skin disorder, to include blisters of the upper and lower extremities (hands and feet), and a seborrheic keratosis due to inservice exposure to hazardous chemicals to include Agent Orange, jet fuel or fuel oil while serving aboard the USS PASSUMPSIC (A0-107). The PASSUMPSIC was a fleet replenishment oiler. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). A veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (f). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307. The presumption requires that a veteran have actually been present on the landmass or the inland waters of Vietnam. Haas v. Peake, 525 F.3d 1168 (2008), cert. denied, 129 S.Ct. 1002 (2009); VAOPGCPREC 27-97. Where a Veteran is presumed to have been exposed to herbicides or is otherwise shown to have been so exposed, service connection may be presumed for chloracne due to such exposure under 38 C.F.R. § 3.309 (e), even if there is no record of such disease during service, provided there is no affirmative evidence to the contrary. 38 C.F.R. § § 3.307 (a)(6); 3.307(d); 3.309(e). In this case the evidence shows that the Veteran has not been diagnosed with chloracne. Rather, the evidence shows that the Veteran's diagnosed skin disorders are pompholyx eczema and a seborrheic keratosis of the scalp which are not disorders listed diseases in 38 C.F.R. § 3.309 (e). Nevertheless, a claimant is not precluded from establishing service connection on a direct basis, regardless of the fact that claimed conditions are not among the diseases which has been determined to be related to herbicide exposure. Importantly, a claimant can establish service connection for disability due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). At his February 1967 entrance examination the Veteran was noted to have a history of mild acne. At his separation examination in December 1969 he was reported to have a mole on the right elbow. In an April 1972 reserve service treatment record the box next to "tumor, growth, cyst, cancer" was checked "yes," and a history of a "bump" on the right shoulder for three years was reported. The service treatment records are otherwise silent for diagnosis or treatment of any skin disorder, to include pompholyx eczema or a seborrheic keratosis of the scalp. In May 2010 the Veteran initially claimed entitlement to service connection for a skin condition described as "blisters of upper and lower extremities" which he reported began in 1995, i.e., more than two decades after the appellant separated from active duty. In December 2014, VA treatment records note that the Veteran was treated for a foot rash and he reported a history of exposure to jet fuel and Navy special fuel oil in service. He stated that he had been responsible for wiping down fuel tank residue by hand without protective gear. In December 2016, the Veteran's wife reported that the appellant had skin conditions during his military service, but she did not provide further specificity. At his January 2017 Board hearing the Veteran testified that he was stationed aboard the PASSUMPSIC he was exposed to Agent Orange while the ship was anchored in Da Nang harbor for an unspecified period of time. The appellant admits that he never went ashore to the Republic of Vietnam. The Veteran also submitted internet articles in support of his claim, to include a January 2016 article which reported that a "short-term" effect of benzene exposure is skin irritation, redness and blisters. An undated article submitted in February 2017 reported that Navy personnel stationed in Da Nang harbor were exposed to Agent Orange fumes. The Veteran has also submitted an August 2011 letter from an environmental scientist who opined that Naval personnel at anchor in Da Nang harbor could have experienced an uptake of dioxin through ingestion or absorption of harbor water, as well as through inhalation of water vapors. In this regard, the scientist stated that "if runoff from the Ranch Hand site was substantial with significant levels of dioxin being transported by erosion/rains, with consistent flows entering the harbor, there is some probability that dioxin vapors may have been taken in by Navy personnel." The Veteran also submitted a February 2017 medical opinion from a private physician who stated that the Veteran had been exposed to Agent Orange, benzene and dioxin, and that such exposure had caused his rashes to the hands and feet. The physician provided neither a factual basis for the contended exposures nor any rationale for his etiological opinion. The Veteran was provided a VA examination in August 2016. There the examiner diagnosed pompholyx eczema and opined that the condition was less likely than not incurred in or caused by in-service exposure. In support of such opinion, the examiner noted that the condition did not manifest in service, and that the first indication of a skin problem of the feet and hands was in 1991. The examiner further noted that the underlying pathology of vesicular palmoplantar eczema was unknown. In October 2017 the Veteran was provided a second VA examination. There he was again diagnosed with pompholyx eczema. The examiner further noted that the Veteran exhibited a flesh colored scaly lesion on the scalp, which had been assessed in March 2017 as a possible seborrheic keratosis. The examiner opined that the Veteran's skin conditions were less likely than not incurred in or otherwise related to active-duty service. The examiner acknowledged the irritating effects of jet fuel and Navy special fuel oil on the skin, and discussed the Veteran's reports of cleaning such substances without protective gear. In reaching his ultimate opinion, however, the examiner noted the lack of documentation of a skin condition in service as well as the lack of a reported skin condition for many years prior to 1991. The Board turns to the Veteran's contention that he was exposed to Agent Orange while serving aboard the PASSUMPSIC but finds the evidence preponderates against such a finding. Pertinently, the Veteran has never asserted, and the record does not otherwise reflect that he served in-country in Vietnam, to include on any inland waterway. On the contrary, at his January 2017 Board hearing, the Veteran specifically admitted that he was not permitted to go ashore while his ship was anchored in Da Nang harbor. Available evidence does not support that the Veteran's ship conducted inland water expeditions, or otherwise docked in Vietnam during the Veteran's active duty service. While the PASSUMPSIC docked in-port at An Thoi in the Republic of Vietnam on June 28, 1971, that was after the appellant had left active duty. http://www.benefits.va.gov/compensation/claims-postservice-agent_orange.asp. To the extent that the ship spent some period of time in Da Nang harbor, there is no evidence that the Veteran transferred to the shore. There is no additional corroborating evidence which helps to verify the appellant's claimed inservice exposure to herbicides, to include Agent Orange. As such there is no competent evidence showing that the Veteran was actually exposed inservice. The Board has considered the February 2017 letter from a private medical doctor who opined that the Veteran's claimed skin conditions were related to in-service Agent Orange exposure. That opinion's reliance on the Veteran's alleged exposure to Agent Orange is not, however, factually supported by the record for the reasons described above. Moreover, that physician's general assertion of an etiology between various chemical exposures and the Veteran's claimed skin disorder is entitled to low probative value because it is unaccompanied by any supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning). The Board considered the Veteran's contentions that he was exposed to Agent Orange fumes while anchored in Da Nang harbor. The February 2017 article reported that that crewmen aboard ships in Da Nang harbor may have been exposed to Agent Orange through inhalation of fumes, and the August 2011 letter from an environmental scientist noted "some probability that dioxin vapors may have been taken in by Navy personnel." The Veteran has not reported direct exposure to the Da Nang harbor waters. A medical article or treatise can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). Here the articles submitted by the Veteran were not accompanied by any probative opinion from any medical expert. There is no probative evidence, specific to the facts and medical history presented in this case, either that the Veteran was in fact exposed to Agent Orange via fumes in the Da Nang harbor, or that any currently diagnosed skin disorder is related to such Agent Orange exposure. The articles thus lack probative value in the present appeal. Turning to the Veteran's contention that his claimed skin disorders were related to exposure to other chemicals, to include jet fuel and Navy special fuel oil, the Board finds that the preponderance of the evidence is also against the claim in this respect. In this regard, the most probative evidence of record with regard to the claimed skin conditions is the August 2016 and October 2017 VA examinations. In this regard, the Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another provided that VA offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429 (1995). The August 2016 and October 2017 VA examinations were based on in-person examinations, a review of the entire record, and each included a reasoned rationale in support of the conclusions reached. Thus, the Board assigns greater probative value to the August 2016 and October 2017 VA examinations concerning the etiology of the claimed skin disorder. The Board has considered the January 2016 internet article reporting that a short term effect of benzene exposure includes skin irritation, redness and blisters. Such evidence is contrary to the Veteran's claim, given that his alleged skin condition first manifested many years after the alleged exposure. There is no service treatment record evidence showing skin irritation, redness and blisters. Again, the article does not address the facts specific to the Veteran's case and was not accompanied by the probative opinion of a medical expert. As such, the article is assigned minimal probative value. Mattern, 12 Vet. App. 222. The Board has further considered the Veteran's lay statements concerning the etiology of the claimed skin disorder. The Board reiterates that the only skin conditions documented by the service treatment records were mild acne at enlistment, a mole on the right elbow at separation, and a bump on the right shoulder during a reserve physical examination. There is no evidentiary record showing that such conditions relate to any current skin disorder. The Board finds such service treatment records, as well as the Veteran's own report in his May 2010 claim that the claimed condition developed in 1995 to be entitled to greater probative value than the statement of his wife that the Veteran developed a skin condition during service, particularly as the latter statement was made many years later during the course of an appeal from the denial of compensation benefits. See Pond v. West, 12 Vet. App. 341, 345 (1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). Neither the Veteran nor his wife are shown to have the medical knowledge or training necessary to offer a medical opinion addressing the etiology of any current skin disorder. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Their statements are therefore entitled to less probative value concerning such a complex medical question than the probative VA examinations of record. Accordingly, for the foregoing reasons, the preponderance of the evidence is found to be against entitlement to service connection for a skin disorder to include blisters of the upper and lower extremities (hands and feet), and a seborrheic keratosis. The benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107 (b); See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The appeal is denied. ORDER Entitlement to service connection for a skin disorder, to include blisters of the upper and lower extremities (hands and feet), and seborrheic keratosis is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs