Citation Nr: 20003196 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 18-53 787 DATE: January 14, 2020 ORDER Entitlement to service connection for a skin condition, to include chloracne but excluding sarcoma, is denied. FINDING OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam Era. 2. The preponderance of the evidence of record is against finding that the Veteran has or has had, at any time during the period on appeal, a skin condition diagnosed as chloracne. 3. The preponderance of the evidence of record is against finding that the Veteran has or has had, at any time during the period on appeal, a skin condition related to or incurred during active military service. CONCLUSION OF LAW The criteria for service connection for a skin condition, to include chloracne but excluding sarcoma, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1967 to June 1970, including combat service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision of the Department of Veterans Affairs (VA). The Board notes that the Veteran’s claim as originally submitted in October 2017 reflected a claim for service connection of chloracne, characterized as a skin condition due to Agent Orange exposure. See October 2017, VA Form 21-526EZ. The Veteran’s notice of disagreement to the March 2018 rating decision indicated a request to consider the claim as one for sarcoma. See April 2018, Notice of Disagreement (stating, “I’ve had 6 sarcomas removed in surgery…”). A request for clarification of the claimed disability was sent by the Regional Office (RO) in May 2018, to which the Veteran replied requesting to appeal the denial for the claim of the disability of chloracne. See May 2018, Notice of Disagreement (NOD). Within the May 2018 (NOD), the Veteran again referenced the removal of sarcomas due to agent orange exposure. Id. A separate claim for consideration of service connection for sarcomas was received in July 2018. See July 2018, VA Form 21-526EZ. That claim was separately adjudicated in a September 2018 rating decision, and therefore, is not presently before the Board. See September 2018, Rating Decision. Although the Veteran specifically characterized his claim for a skin condition as for chloracne, his records reflect various skin diagnoses. Therefore, this claim has been recharacterized to encompass any currently diagnosed skin condition, excluding consideration of any claim for sarcoma. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted, or for aggravation of a preexisting injury suffered or disease contracted, in the line of duty in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection the following elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical “nexus” requirement). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); see 38 C.F.R. §§ 3.303(a), 4.125(a). Entitlement to service connection for a skin condition, to include chloracne. The Veteran contends that he has a skin condition, to include chloracne, that is related to his military service, more specifically, as a result of his exposure to herbicides. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though 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: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin’s disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcoma. A Veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Service connection will be presumed for the specified diseases outlined above that become manifest to a compensable degree within a specified period in the case of certain diseases. 38 U.S.C. § 1116 ; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). 3(d).3.303(d).3(d). The presumptive regulations, however, do not preclude a claimant from establishing service connection based on evidence demonstrating that the disease or injury was in fact “incurred” during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Considering first whether the Veteran has a disability which may be presumed as being related to the Veteran’s service due to herbicide exposure, the Board notes that such exposure has been conceded by the RO. See March 2018, Rating Decision. In this case, the Veteran has not been diagnosed with chloracne, nor do his medical records, personal statements, or additional lay evidence submitted and considered pursuant to this claim, support that he is currently, or at any time during the pendency of this appeal has been suffering persistent or recurrent symptoms of such a condition. See 2012-2015, Private Treatment Records; May 2017, Agent Orange Registry Examination; 2017-2018, VA Treatment Records. In May 2017, the Veteran submitted to an in-person examination pursuant to the Agent Orange Registry. See May 2017, Agent Orange Registry Examination. That examination did not identify a diagnosis of chloracne or any other specific findings directly relatable to Agent Orange exposure. Id. That report does, however, reflect a diagnosis of actinic keratosis, a pre-cancerous skin condition. Id. Great weight is given to the Veteran’s private medical treatment records as he was treated by a dermatologist who directly addressed and diagnosed the Veteran’s skin complaints as basal cell carcinoma. See 2012-2015, Private Treatment Records. Indeed, private treatment records from 2012 to 2015 indicate that the Veteran was diagnosed with basal cell carcinoma and resultingly had numerous skin lesions removed. Id. The surgical reports indicate that the excisions were performed with a 2 mm skin margin. See May 2012, Private Treatment Record. In 2014, the Veteran was diagnosed with dermal fibrosis and actinic keratoses, with development of an additional skin lesion identified as basal cell carcinoma. See October 2014, Private Treatment Record. Those treatment records do not at any time over the course of several years reflect any diagnosis of chloracne. See 2012-2015, Private Treatment Records. The Veteran’s diagnosed conditions are not among the conditions for which presumptive service connection is available based on herbicide exposure. 38 C.F.R. §§ 3.307, 3.309(e). Accordingly, service connection on a presumptive basis is not warranted. The unavailability of presumptive service connection for a disability based on exposure to herbicides, however, does not preclude a veteran from establishing service connection with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Direct Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The Veteran’s most recent medical reports of record reflect confirmation of a diagnosis for actinic keratosis in 2017. See May 2017, Agent Orange Examination. That is most recent dermatological evidence of record as the Veteran failed to appear for his scheduled skin conditions examination in 2017. See March 2018, Report of General Information (reporting attempt of contacting the Veteran concerning missed examination). The Veteran indicated in July 2018 that he failed to attend the examination because he was unable to secure transportation. See July 2018, VA Form 21-526EZ. However, the Veteran appeared the same month for an in-person examination for a separate claim and later records indicate that he took affirmative action to cancel the examination without rescheduling. See January 2018, VA Form 21-0820. Attempts were made to contact the Veteran to reschedule with no success. See March 2018, Report of General Information. In addition, the Veteran has also reported that he provides his own transportation and does not have any problem driving himself for his medical treatments. See December 2018, VA Treatment Records. Accordingly, the Board finds that the Veteran failed to report for a requested VA examination and good cause for such failure has not been shown. Under 38 C.F.R. § 3.655 (b), in an original or reopened claim, or claim for increase: “when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.” Applying 38 C.F.R. § 3.655 (a) and (b) to the facts of this case, as the Veteran failed to report for VA examinations without good cause, the regulation states that the Veteran’s claim “shall be rated based on the evidence of record.” Therefore, the Veteran’s claim for service connection for a skin condition, to include chloracne, will be rated based on the evidence of record as the Veteran’s claim is an original compensation claim. As to the first element for direct service connection consideration, in a May 2018 medical record, the Veteran reported that he no longer seeks treatment for a skin condition. See May 2018, VA Treatment Record. Nevertheless, giving the Veteran the benefit of the doubt and evaluating the claims based upon the historical records, the Board will consider the previously listed skin condition diagnoses of basal cell carcinoma, dermal fibrosis, and actinic keratosis, as current disabilities, satisfying the first element for direct service connection. 38 U.S.C. §§ 1131, 5107(b); Shedden, 557 381 F.3d at 1163; 38 C.F.R. § 3.303(a). As exposure to an herbicide agent has been conceded, the second element of direct service connection is also met. See Shedden, 381 F.3d at 1167. The Board notes that the combat presumption has also been considered in connection with the Veteran’s claim as the Veteran honorably served in combat in the Republic of Vietnam and is in receipt of numerous decorations commemorating such service, including the Combat Action Medal and Purple Heart. See DD 214. Under the combat presumption, where the evidence shows that a veteran engaged in combat with the enemy, his or her lay reports will be sufficient to establish the occurrence of an event or injury during combat as long as such reports are consistent with the circumstances, conditions, or hardships of such service. This is true even if there is no official record of the reported incident, unless there is clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). However, “[e]ven when the statutory combat presumption applies, a veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty.” Reeves v Shinseki, 682 F.3d 988, 999 n. 9 (Fed. Cir. 2012). In this case, the Veteran has not provided lay reports of the occurrence of any event or injury during combat related to his claimed skin condition except for exposure to an herbicide agent. See October 2017, VA Form 21-526EZ; April 2018, Notice of Disagreement; May 2018, Notice of Disagreement; July 2018, VA Form 21-526EZ; November 2018, Form 9. (The Board does recognize that the Veteran incurred serious injury from a gunshot wound in his thigh, however, there is no contention that such injury is in any way related to the claimed skin condition disability). In addition, the Veteran has not reported the onset of symptoms, nor do any of his service treatment records reflect any complaints of symptoms occurring during service. Accordingly, the Board finds that exposure to an herbicide agent is the only complained of event or injury. Service connection then turns upon whether there is evidence of a nexus between the claimed in-service disease or injury and the present disability. Id. The Board acknowledges the Veteran’s assertions that his current skin disability is related to his military service. However, determining the etiology of a skin disability falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran is competent to report his symptoms, any opinion regarding whether his diagnosed skin disability is related to his active military service requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board assigns no probative value to the Veteran’s assertions that his currently diagnosed skin conditions are in any way related to his military service. Although the Board recognizes that a “valid medical opinion” is not an absolute bar to service connection, the record is completely silent for any correlation or connection between the Veteran’s claimed skin condition disability and his in-service injury of exposure to an herbicide agent. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Accordingly, the Board finds that the final element of service connection of a nexus between the current disability and the in-service injury or event, has not been established. 38 C.F.R. § 3.303(d). The Board thus finds that the weight of the evidence is against a finding of service connection. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Sutherell, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.