Citation Nr: 21000186 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 19-22 259A DATE: January 4, 2021 ORDER Service connection for stomach rash, also claimed as nummular dermatitis as a result of agent orange exposure, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s stomach rash, also claimed as nummular dermatitis, was caused by or incurred due to his active military service to include as due to exposure to herbicide agents, such as agent orange. CONCLUSION OF LAW The criteria for service connection for stomach rash, also claimed as nummular dermatitis, is not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with U.S. Air Force from January 1962 to January 1966 during the Vietnam Era. The Veteran also served in the US Reserves. This matter comes before the Board of Veterans’ Appeal (Board) on appeal from a November 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In the January 2020 Board decision, this matter was remanded for additional development. The RO was directed to send the Veteran’s information to the JSSRC, in order to determine whether he was exposed to herbicide agents, specifically Agent Orange. Afterwards, the RO was directed to provide the Veteran with a VA examination and medial opinion. Since the requested development has occurred, and the Board finds the examination is adequate, the claim is ready for adjudication as there has been substantial compliance with its prior remand directives. Service connection for stomach rash is denied. The Veteran contends that his stomach rash, diagnosed as nummular dermatitis, was caused by his exposure herbicide agents, such as Agent Orange (AO) and other chemicals, during his active military service. See NOD received 9/19/2014 at page 2. Generally, to establish service connection, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Since the Veteran is claiming entitlement to service connection on the basis of exposure to herbicide agents, the Board will include the requirements for presumptive service connection due to herbicide exposure. Pursuant to 38 U.S.C. § 1116(a), presumptive service connection is available on the basis of herbicide exposure for specified diseases manifested to a degree of 10 percent within a specified period in a Veteran who, during active military, naval, or air service, served in RVN during the period beginning on January 9, 1962, and ending on May 7, 1975. It also provides presumptive service connection on the basis of herbicide exposure for each additional disease that the Secretary determines in regulations prescribed under this section warrants a presumption of service connection by reason of having a positive association with exposure to an herbicide agent, and that becomes manifest within the period (if any) prescribed in such regulations in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The diseases associated with herbicide exposure must become manifest to a degree of 10 percent or more at any time after service, except that early onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Agent Orange Act of 1991 requires that when the Secretary determines that a presumption of service connection based on herbicide exposure is not warranted for health outcomes, he must publish a notice of that determination, including an explanation of the scientific basis for the decision. The Secretary's determination must be based on consideration of reports of the National Academy of Sciences (NAS) and all other sound medical and scientific information and analysis available to the Secretary. 38 U.S.C. §§ 1116 (b) and (c). Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection for disability due to herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). First, the Board finds that the preponderance of the evidence is against a finding that the Veteran was exposed to herbicide agents during his military service. In January 2020, the Board directed the RO to send a request to the JSRRC for verification of the Veteran’s claimed herbicide exposure. See BVA Decision received 1/23/2020 at page 5. A response from the Air Force Historical Research Agency (AFHRA) was associated with the file in September 2020. In sum, the AHFRCA found that the Veteran’s service did not expose him to herbicide agents. Specifically, the AFHRA reported that operation “Chrome Dome”, which the Veteran stated caused his exposure to AO, was not used to fly AO to Thailand, Vietnam or any other location in Southeast Asia. Operation “Chrome Dome” instead was the code name for the United States Air Force mission from 1960 through 1968 in which B-52 aircraft, armed with nuclear weapons, remained on continuous airborne alert, flying routes starting in the United States and flying towards the Soviet Union’s boarder before turning back and landing at their own base back in the United States (such as the B-52s that were based at Wurtsmith). The AHFRCA response states that AO was only delivered to Vietnam by water surface vessels. See Email Correspondence received 9/23/2020 at page 1; VA Memo received 9/23/2020 at page 2. Further, the Veteran’s military records show that he served stateside, and therefore he did not have “boots on the ground” in Vietnam. See Military Personnel Record received 6/03/2015 at page 4. Although, the Board acknowledges that the Veteran has asserted AO exposure in his lay statements, the Board gives greater weight to the AFHRA report and the Veteran’s military personnel records. The Board finds that both the AFHRA report and the Veteran’s military records are credible and are entitled to greater weight since they have privy to the movement of AO in the supply chain and the Veteran’s military assignments, respectively, providing an overall view and evidence to assess the weight of Veteran’s contentions. Accordingly, the Board finds that the preponderance of the credible and competent evidence shows that the Veteran was not exposed to herbicide agents during his military service. After the above information from AFHRA was associated with the claims file, in October 2020, VA provided the Veteran with a skin/scars/disfigurement examination. The VA examiner reviewed the Veteran’s records and conducted the examination via video telehealth. See C&P Exam received 10/05/2020. The examiner diagnosed the Veteran with nummular dermatitis as of 2009; rosacea, also as of 2009; and resolved Basal cell carcinoma as of 2017. Id. at pages 2-3. With regard to his claim of a stomach rash, the Veteran’s medical records show that the lesion on his left abdomen/flank was diagnosed in the 1980s as nummular dermatitis. Id. at page 3. The Veteran’s dermatitis was found to take up less than 5 percent of his total body area. Id. at page 7. The examiner remarked that the combined total body of all of the Veteran’s diagnosed skin conditions was 1 percent. Id. at 11. The examiner found that it was less likely than not that the Veteran’s skin condition was caused by herbicide agent exposure given the above findings. See C&P Exam (Medical Opinion) received 10/05/2020 at page 2. The examiner also provide an opinion that the Veteran’s diagnosed skin conditions of nummular dermatitis, rosacea, and his Basal cell carcinoma was 30 years post-military discharge. Therefore, it was less likely than not due to service. The Board finds that the Veteran’s VA examination and medical opinion are adequate because the examiner reviewed the Veteran’s file, solicited his medical history (such as the onset of the various skin disabilities), and based his opinion on the medical evidence before him. A review of the Veteran’s service medical records show that the Veteran had an isolated incident of rash related to an allergic reaction to penicillin in March 1962, which resolved. In January 1965, a subsequent report of medical history specifically indicates that a check for dermatitis was negative. See Medical Treatment Record received 10/22/2017 at page 2. Accordingly, the Board finds that the evidence does not tend to support direct service connection. In this regard, the Veteran has explicitly stated that his skin condition was due to herbicide exposure and his service record does not show in-service occurrence. See VA 21-526EZ, Fully Developed Claim received 10/22/2017 at page 3. A review of the Veteran’s medical records shows that his provider attributed his skin conditions to sun damage and heredity, seeing that he had a family history of malignant melanoma. See Medical Treatment Record received 10/22/2017 at pages 5 and 8. Further, the Board finds that the Veteran’s claim of a skin condition as due to allergic reaction to penicillin and rosacea were the subjects of previous denials that were not appealed to the Board, and are therefore not before the Board. See Rating Decision received 11/18/2013; see also Rating Decision received 6/29/2015. In this regard, the Board has looked at the scope of the request to reopen under Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this regard, the Veteran’s October 2017 application to VA indicated AO exposure. The Board finds that this tends to show that the Veteran was not thinking of the allergic reaction to penicillin or his rosacea when applying for VA compensation at this time. As such, this leads the Board to a determination that the identified skin disability at the time of the October 2017 claim and November 2017 rating decision are separate and distinct from those considered in a prior final denials in 2013 and 2015. Murphy v. Wilkie, No. 2019-2064, 2020 U.S. App. LEXIS 39954 (Fed. Cir. Dec. 21, 2020). Given the foregoing, the Board finds that the preponderance of the evidence weighs against service connection for skin rash ,also claimed as nummular dermatitis as a result of agent orange exposure, and service connection is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Dixon, 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.