Citation Nr: 21003526 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 18-10 907 DATE: January 21, 2021 ORDER Service connection for chloracne or other skin disorder, to include as secondary to toxic herbicide exposure, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has chloracne or any current skin disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for chloracne or other skin disorder, to include as secondary to toxic herbicide exposure, are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active duty service from April 1969 to November 1970. The claim was remanded in October 2020 for further development. 1. Entitlement to service connection for a skin disorder The Veteran asserts that his skin disorder was related to active service. He specifically asserts that his skin disorder was caused by or aggravated by exposure to toxic herbicides and/or his active service. Generally, to establish a right to compensation for a present disability, 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). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection is warranted for a veteran who has been exposed to toxic herbicide agents during active military service (subject to the requirements of 38 C.F.R. § 3.307 (a)) for diseases such as chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin’s disease, non-Hodgkin’s lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, multiple myeloma, respiratory cancers (cancer of the lungs, bronchus, larynx, or trachea), soft-tissue sarcomas, ischemic heart disease, Parkinson’s disease, B-cell leukemias and prostate cancer. Moreover, service connection is warranted even if these disorders were not shown during active duty. 38 C.F.R. § 3.309(e). Here, while the evidence indicates that the Veteran served in Vietnam, the evidence does not indicate that the Veteran has a current or at any time in the past has a diagnosis of chloracne, which is the only skin condition listed under 38 C.F.R. § 3.309(e). As a result, presumptive service connection due to herbicide exposure is not for application. Moreover, based on the evidence of record the Board determines that service connection is not warranted for his current skin disorder (actinic keratosis) based on any direct relationship to active duty service. As an initial matter, the Veteran’s service treatment records do not reflect complaints of, treatment for or diagnosis of skin condition during active service. Moreover, the post-service evidence does not reflect symptoms of this disorder until many years after separation in 2018. As such, a continuity of symptoms is not shown based on the clinical evidence despite the Veteran’s contentions, including for purposes of the chronic disease presumption under 38 C.F.R. §§ 3.309. As part of this claim, the Board recognizes the statements from the Veteran regarding his history of symptoms. Specifically, that he had a skin disorder since active duty service. In this regard, while the Veteran is not competent to diagnose disorders such as actinic keratosis, as they may not be diagnosed by their unique and readily identifiable features, and thus requires a determination that is “medical in nature,” he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); see Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Nevertheless, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is nonetheless not probative in establishing continuity of symptomology. As an initial matter, the large gap in treatment for the asserted condition weigh against the Veteran’s claims. Further, the Veteran’s treatment records contradict the Veteran’s assertions that his symptoms have persisted since service. Specifically, in 1976, 1984, 1988 and 1993 the Veteran’s service treatment records reflect that the Veteran did not have any indication of a skin disorder, including a rash. Therefore, service connection based on a continuity of symptoms is not warranted. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, despite his contentions to the contrary, the Board finds that the weight of the competent evidence does not attribute the Veteran’s claimed disorder to active duty. Specifically, VA examiners in August 2019 and November 2020 both determined that the Veteran did not have a diagnosis of chloracne, but did have a diagnosis of actinic keratosis. The examiner in November 2020 opined that the Veteran’s current skin disorder was less likely than not caused by active duty service. The examiner relied on the rationale that although it is a remote possibility that toxic herbicide exposure or sun exposure in service could cause his skin condition, it is highly unlikely given that there was no in-service complaints of sun related complaints or skin lesions. The Board finds opinion to be highly probative as it was rendered by a competent medical professional familiar with the Veteran’s medical history. Moreover, the Board understands the rationale the VA examiner provided, in that it would be impossible to differentiate the amount of sun exposure he received during service and the exposure he would have had in the many years since service. Indeed, any sort of attempt to do so would have been purely speculation. Additionally, the Board notes that the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a nexus between his skin disorder and active service. As part of this claim, the Board recognizes the statements from the Veteran regarding the history of skin symptoms, as well as the relationship between his disorder and active service. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, although the Veteran is competent to report certain symptoms, he is not competent to provide testimony regarding a diagnosis and/or etiology of a skin disorder. See Jandreau, 492 F.3d at 1377, n.4. Because it is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran’s disorder is found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for a skin disorder, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Billinger, 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.