Citation Nr: 21004436 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 12-04 874 DATE: January 27, 2021 ORDER Entitlement to service connection for a skin disability, to include as due to herbicide agent exposure and secondary to service-connected type II diabetes mellitus (DMII), to include medications prescribed therefor, is denied. FINDING OF FACT The Veteran’s skin disorder is not related to his military service or any other in-service injury or disease, including herbicide agent exposure, and is not etiologically related to a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a skin disability, to include as due to herbicide agent exposure and secondary to service-connected type II diabetes mellitus (DMII), to include medications prescribed therefor, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service in the Army from November 1965 to November 1968. He served in the Republic of Vietnam from October 12, 1966 to October 11, 1967. This appeal comes to the Board of Veterans’ Appeals (Board) from a February 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2014, the Veteran testified at a travel board hearing before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. The law requires the VLJ who conducts a hearing to participate in any decision made on the appeal. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. The Veteran was notified that the VLJ that conducted his hearing is no longer employed by the Board by way of a December 2020 letter. He was offered the opportunity to have a new hearing and was notified that if he did not respond within 30 days, the Board would assume that he does not desire an additional hearing and would proceed with adjudication of the issue. The Veteran has not responded to this letter. Thus, the Board will proceed to consider the claim without additional hearing testimony. In November 2014 and again in July 2018, the Board remanded the issue on appeal for further development. 1. Entitlement to service connection for a skin disability, to include as due to herbicide agent exposure and secondary to service-connected type II diabetes mellitus (DMII), to include medications prescribed therefor The Veteran contends his skin disability could be related to his Agent Orange exposure while he was in Vietnam or his diabetic condition. See April 2014 Hearing Transcript. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for certain diseases based on presumed exposure to certain herbicide agents, even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). The presumptive provisions of 38 C.F.R. § 3.307 are specifically limited to enumerated chronic diseases listed in 38 C.F.R. § 3.309 (e). The Veteran served in the Republic of Vietnam during the Vietnam War era (from October 12, 1966 to October 11, 1967) and, as such, he was presumptively exposed to herbicides therein. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(i). Further, certain skin conditions such as chloracne or other acneform diseases consistent with chloracne, are presumptively associated with herbicide exposure. 38 C.F.R. § 3.309 (e). Even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Secondary service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection includes the concept of aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The service treatment records do not contain any findings of a skin disorder. On the report of medical history completed by the Veteran in October 1968, he denied skin diseases, tumors, growths, and cysts. The October 1968 service separation examination noted normal skin. An April 2013 VA dermatology note indicated that the Veteran had a hypertrophic lichenoid planus of bilateral anterior shins. The note indicated this had been present for approximately two years and the diagnosis had been confirmed by biopsy in March 2013. In August 2013, the RO sought an opinion from a VA physician. After reviewing the Veteran’s claims file, including treatment records, the physician noted that the Veteran’s treating dermatologist documented that a lichenoid drug reaction could not be excluded as the cause of the Veteran’s skin condition. Additionally, it was less likely that the reaction was secondary to DMII or Agent Orange exposure, and more likely secondary to another medication versus idiopathic. The VA physician concurred that the Veteran’s skin condition was less likely than not due to or aggravated by DMII as the Veteran was not currently on any medications for DMII and the condition noted was likely to be a drug reaction. In June 2018, the Veteran’s representative submitted an appellate brief, in which he argued that medical research suggested a potential link between diabetes mellitus and the Veteran’s skin disability, specifically citing to medical literature. The Board’s previous remand found that the August 2013 opinion by the VA physician was inadequate because it did not provide a sufficient rationale in discussing why the Veteran’s skin condition was not related to his Agent Orange exposure or DMII and the VA physician did not take into account the medical literature cited by the Veteran’s representative in the June 2018 appellate brief, which suggested a potential link between the Veteran’s DMII and skin disability. Pursuant to the Board’s most recent remand, a VA examination was conducted in April 2019. The examiner noted that the Veteran’s lichen planus, diagnosed in 2013, had been asymptomatic for the past six months. The examiner opined that: Lichen planus is not a presumptive service-connected diagnosis for a Veteran with exposure to Agent Orange. I find no record of medical treatment or diagnosis of lichen planus during the Veteran’s service. Therefore, it is my medical opinion that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. I am aware that the Veteran has been designated as service connected for AODM II. I am also aware that lichen planus has a higher rate of incidence in people with AODM II than in the general population. “Lichen planus is an uncommon disorder affecting [less than] one percent of the general population. Onset is common in middle age (30–60 years of age). However, the prevalence of lichen planus in people with type 1 or type 2 diabetes has been noted to be 2–4% (39.46).” (Clin Diabetes. 2015 Jan; 33(1): 40–48}. A meta-analysis of studies focusing on the relationship between AODM II and lichen planus was inconclusive: Lichen planus and diabetes mellitus: Systematic review and meta-analysis. (Oral Dis. 2018 Sep 11. doi: 10.1111/odi.12977) Abstract. OBJECTIVE: The aim of this study was to perform a systematic review and meta-analysis answering the following questions: (a) “What is the prevalence and risk of oral lichen planus among claimants with diabetes mellitus?” and (b) “What is the prevalence and risk of diabetes mellitus among claimants with oral lichen planus?” CONCLUSIONS: Contradictory results were found when analyzing the relationship between lichen planus and diabetes mellitus. Diverse factors should be considered when studying this association for a correct interpretation of results. Diabetes mellitus has high prevalence and morbidity, which is why new case-control studies are needed to further investigate this association. Therefore, it is my medical opinion that the currently diagnosed condition(s) related to the veteran’s claimed skin condition, is/are less likely than not (50 percent or greater probability) proximately due to or the result of the veteran’s service connected diabetes mellitus type II to include medications prescribed. In a September 2020 addendum opinion, another the VA physician stated: 1. Lichen planus due to herbicide exposure citing literature for negative opinion: Lichen planus is a disorder of unknown cause (Up to Date, Lichen planus). While a relationship with hepatitis C infection, restrictive underwear, localized friction, sun exposure, exposure to mustard oil, amla oil, henna, or hair dyes & various other substances have been reported, multiple studies have not found an association between herbicide exposure and development of lichen planus (Yang. et al. J Cutan Med Surg. 2016 Nov;20(6):586-588. doi: 10.1177/1203475416659857, Cox et al. 2015. Health conditions in a cohort of New Zealand Vietnam veterans: Hospital admissions between 1988 and 2009. BMJ Open 5(12): e008409). A long term study of a Japanese population which in 1968 were exposed to dioxins, and dioxin-like chemicals, which are the chemicals of concern in herbicides, showed those exposed still had elevated serum concentrations of the chemicals compared to the general Japanese population as late as 2012, that skin conditions such as black comedones, scar formation, and skin pigmentation were correlated with exposure, and that chloracne was persistent in this population 44 years later (Akahane et al. Long-term health effects of PCBs and related compounds: A comparative analysis of patients suffering from Yusho and the general population. Archives of Environmental Contamination and Toxicology 74(2):203–21). There was no indication of an increased incidence of lichen planus in that or other exposed populations. Further a biologically plausible mechanism between lichen planus development and exposure to herbicides has not been advanced. 2. Lichen planus due to DMII (to include prescribed meds) citing literature in the June 2018 Appellate Brief: The study cited, Krishnendra Varma & Pankaj Shukla, Association of Diabetes Mellitus in Patients with Lichen Planus, 3 INDIAN J. CLINICAL AND EXPERIMENTAL DERMATOLOGY 14, 15 (2017) concluded that there was a high prevalence of diabetes mellitus among patients with lichen planus. A high prevalence of one disease in relation to another or an association between one disease and another does not indicate a causative association (https://www.thenewatlantis.com/publications/correlation-causation-andconfusion). Diabetes mellitus type II itself is not a medically recognized cause of lichen planus (Up to Date, Lichen planus). Though some medications used to treat diabetes mellitus type II are associated with development of lichen planus, the medication that the claimant was taking at the time he was diagnosed with lichen planus is not medically recognized as a cause of lichen planus (Up to Date, Lichen planus). 3. Aggravation of Lichen planus due to DMII: The claimant had been diagnosed with diabetes mellitus type II at the time he was diagnosed with lichen planus. There is no indication in the records provided that the lichen planus worsened from baseline at the time of diagnosis or was otherwise aggravated beyond its natural progression by diabetes mellitus type II. The last exam showed no evidence of lichen planus so clearly it has not been aggravated beyond its normal progression. As a preliminary matter, service connection for a skin disorder, on a presumptive basis, is not warranted. The Veteran’s exposure to herbicide agents in Vietnam is conceded. While the Veteran is presumed to have been exposed to herbicide agents in service, lichen planus is not an enumerated condition under 38 C.F.R. § 3.309 (e). The Board further notes that a review of the records does not specifically show the Veteran’s skin disorder was diagnosed as chloracne or an acneform disease consistent with chloracne. Nonetheless, the provisions for presumptive service connection do not preclude a claimant from establishing service connection with proof of actual direct causation, on the basis that in-service exposure to herbicide agents led to the development of the claimed disability after service. Combee, 34 F.3d 1039. The question for the Board is then whether the Veteran has a current skin disability that began during service or is at least as likely as not related to an in-service injury, event, or disease to include herbicide agent exposure. The Board concludes that, while the Veteran has a current diagnosis of lichen planus, the preponderance of the evidence weighs against finding that such began during service or is otherwise related to an in-service injury, event, or disease including herbicide agent exposure. As noted above, the service treatment records are silent for a skin disorder, and lichen planus was first diagnosed in 2013, more than 40 years after the Veteran’s separation from service. Taken together, the Board finds the VA opinions provided in April 2019 and September 2020 are probative and persuasive as the VA physicians explained the reasons for their conclusions and the opinions were based on an accurate characterization of the evidence. Thus, these opinions are entitled to substantial probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There are no equally probative medical opinions to the contrary. The available medical evidence does not include findings of a nexus between the Veteran’s military service, to include presumed herbicide agent exposure therein, and the Veteran’s current skin disability-lichen planus. Thus, service connection is not warranted on a direct basis under 38 C.F.R. § 3.303. The Board acknowledges the Veteran’s lay assertion in support of his appeal; however, a determination as to whether the current skin disabilities are etiologically related to service, including any remote treatment therein or to presumed herbicide agent exposure, are complex medical questions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, the Veteran’s lay statements asserting such a nexus exists are not competent as he is not shown to have medical training or expertise. (Continued on the next page)   Finally, the preponderance of the evidence is against a causal nexus between the Veteran’s current lichen planus and the service-connected DMII or medications taken therefor. The most probative evidence of record regarding a causal relationship between the skin disorder and DMII is the April 2019 and September 2020 VA physicians’ opinions. The examiners reviewed the Veteran’s medical history and provided negative opinions that were supported with a detailed rationale. The September 2020 examiner specifically reviewed and considered the medical literature cited in the June 2018 appellant’s brief and explained why it did not support a finding that lichen planus was secondary to DMII. In short, the probative evidence weighs against finding a causal nexus between the current skin disorder and service; or alternatively, between the skin disorder and service-connected DMII. As such, the benefit of the doubt doctrine does not apply, and service connection is not warranted. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, 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.