Citation Nr: 21001628 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-10 463 DATE: January 11, 2021 ORDER Service connection for a skin disorder, claimed as due to herbicide exposure, is denied. FINDING OF FACT There is no evidence of a chronic skin disorder during military service, and no competent evidence linking the Veteran’s post-service skin disorders with his military service, to include his presumed herbicide exposure. CONCLUSION OF LAW The criteria for service connection for a skin disorder are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from September 1965 to June 1967, to include service in the Republic of Vietnam. As such, he is presumed to have been exposed to herbicides during this service. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing in November 2019. A transcript of this proceeding has been associated with the claims file. This case was previously before the Board in January 2020 at which time the above issue was remanded for additional development. Legal Criteria Service connection may be established for a disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38C.F.R. §§ 3.303, 3.304. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) 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. Hickson v. West, 12 Vet. App. 247 (1999). Certain chronic diseases, listed in 38 C.F.R. § 3.309(a), are subject to presumptive service connection under 38 C.F.R. § 3.03(b). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. In order to establish a disease is “chronic” in service, there must be a combination of manifestations sufficient to identify the disease and sufficient observation to establish chronicity at the time of service. When a chronic disease is shown in service, subsequent manifestation of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required to establish service connection. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a Veteran served at least ninety days of active service, and certain chronic diseases become manifest to a degree of ten percent or more within one year after the date of separation from such service, such a disease shall be presumed to have been incurred in service, even though there is no evidence of such a disease during the period of active service. 38 U.S.C. §§ 1101,1112, 1113; 38 C.F.R. §§ 3.307,3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The governing law provides that 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 shall be presumed to have been exposed during such service to an herbicide agent... 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). Furthermore, VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain disabilities listed in 38 C.F.R. § 3.309(e). Significantly, pursuant to 38 C.F.R. § 3.309(e), presumptive service connection is available for chloracne, other acneform disease consistent with chloracne, and porphyria cutanea tarda. Significantly, there is no evidence that the Veteran was ever diagnosed with any of these skin disorders. Notwithstanding the inapplicability of the Agent Orange presumptive service connection regulations, in this case the Board is obligated to fully consider the appellant’s claim on a direct service connection basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Analysis The Veteran contends that service connection is warranted for a skin disorder, as due to his presumed in-service herbicide exposure. While service treatment records do show complaints of an inguinal rash in August and October 1966 and complaints of a rash on the Veteran’s penis in June 1967, they are negative for a chronic skin disorder. Significantly, the Veteran’s June 1967 separation examination shows normal skin. The earliest indication of chronic skin problems is a November 2010 VA treatment record showing a history of recurring skin rash between the Veteran’s fingers and toes since 1970. A February 2011 VA treatment record shows diagnoses of maculopapular lesion of the right digital cleft and dermatitis. During the November 2019 Board hearing, the Veteran testified that his skin problems began between six months and one year after his separation from service when he began experiencing lesions on his hands and feet. Significantly, the Veteran felt that this was related to a fungus that he had come in contact with while in Vietnam. Pursuant to the January 2020 Board remand, the Veteran was afforded a VA skin examination in February 2020. Significantly, the examiner diagnosed lichen planus and opined that such disability was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale for this opinion, the examiner noted that the Veteran had no issues related to the claimed maculopapular lesion, dermatitis prior to military service and that the onset of the condition was during service, as documented in the Veteran’s service treatment records. The examiner further noted that there was evidence of current, chronic and continuous treatment and care and that, thus, a nexus had been established. Specifically, the examiner noted the November 2010 VA treatment record showing a history of recurring skin rash between the Veteran’s fingers and toes since 1970, the February 2011 VA treatment record showing diagnoses of maculopapular lesion of the right distal cleft and dermatitis, as well as 38 C.F.R. § 3.309(e) finding that presumptive service connection is available for chloracne, other acneform disease consistent with chloracne and porphyria cutanea tarda. Due to inadequacies in the February 2020 VA medical opinion, an addendum opinion was obtained in October 2020. Significantly, the examiner was asked to clarify if the currently diagnosed lichen planus is the same condition which was treated as an inguinal rash in the service treatment records during service as the Veteran has not contended the onset of the current skin condition until after discharge from service based on VA treatment reports, testimony presented in November 2019, and in the examination report history. Pursuant to this addendum opinion request, the February 2020 VA examiner reexamined the claims file and opined that the Veteran’s lichen planus and dermatitis are less likely as not related to service or his presumed herbicide exposure. As rationale for this opinion, the examiner noted that, while the Veteran’s service treatment records show a few skin-related complaints, no chronic skin condition was ever diagnosed and the Veteran’s June 1967 separation examination shows normal skin. The first documented complaint/treatment of a skin condition after service was in 2010. While the Veteran is credible to report symptoms, he is not qualified to ascribe symptoms to a diagnosis. As this condition was not diagnosed until 2010 and 2011, over 40 years after separation from service, a nexus could not be established. Initially, the Board notes that presumptive service connection for a skin disorder is not warranted. While the Veteran is presumed to have been exposed to herbicides, he has not been diagnosed with a presumptive disability associated with herbicides as neither lichen planus nor dermatitis among the diseases specified in 38 C.F.R. § 3.309(e). The Board also finds that service connection for a skin disorder is not warranted on a direct basis. The Board notes that the record contains conflicting medical opinions on the question of whether the Veteran’s skin disorders are related to his military service. On one hand, the February 2020 VA medical opinion related the Veteran’s current skin disorders to his military service based on the basis of skin problems beginning during and continuing since service. On the other hand, the October 2020 VA medical opinion found that it was less likely than not that the Veteran’s skin disorders are related to his military service on the basis that the Veteran’s in-service skin complaints were acute and not chronic conditions. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. See also Obert v. Brown, 5 Vet. App. 30 (1993); Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this regard, the Board notes that the February 2020 VA opinion is based on a finding that the Veteran’s claimed maculopapular lesion and dermatitis began during service and have continued since service. However, a review of the record does not support this fining. Instead, the record shows acute complaints of an inguinal rash in service with no skin complaints from 1967 to 2010. While failure to review the claims file is not fatal to the opinion (see Nieves-Rodriguez, 22 Vet. App. at 304), consideration of the relevant history is a factor in assessing the probative value of medical opinions. This opinion is based on inaccurate facts; therefore, it is not probative. By contrast, the Board finds highly probative the October 2020 VA opinion on the medical nexus question. In opining that the Veteran’s current lichen planus and/or dermatitis are not related to his in-service inguinal rash, the October 2020 VA opinion distinguishes between the in-service and post-service diagnoses and finds that such are not related given the 40 years between the Veteran’s in-service skin complaints and his post-service skin problems. Significantly, the October 2020 VA opinion provides a convincing rationale. Thus, the most persuasive medical opinion on the question of etiology of the Veteran’s claimed skin disorder weighs against the claim. The Board has considered the Veteran’s assertions that his current skin disorder(s) are related to his service. While he is competent to report current observable symptoms and an injury in service; as a lay person, he is not competent to offer an opinion regarding the etiology of his current skin disorders. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, such an opinion would necessarily require consideration of the etiology of the Veteran’s current skin disorders, which requires specialized testing. Moreover, such an opinion would require knowledge of the skin and the impact of one skin disability resulting in another. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, the Board finds that, as a skin disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran’s discharge from active duty, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a skin disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.