Citation Nr: 21068043 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 17-40 473 DATE: November 8, 2021 ORDER Service connection for a skin disorder other than verruca planus or herpes simplex, to include chloracne, including as due to in-service exposure to herbicide agents and as secondary to a service-connected disability, is denied. Service connection for obstructive sleep apnea (OSA), to include as secondary to the service-connected posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. The Veteran's skin disorders are not secondary to the service-connected verruca planus or herpes simplex and are not otherwise related to an in-service injury or disease, to include in-service exposure to herbicide agents. 2. The Veteran's OSA is not secondary to the service-connected PTSD and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin disorder other than verruca planus or herpes simplex, to include chloracne, including as due to in-service exposure to herbicide agents and as secondary to service-connected disability, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for OSA, to include as secondary to the service-connected PTSD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1966 to August 1968, to include in the Republic of Vietnam. Among his decorations are the Bronze Star Medal, the Purple Heart, and the Combat Infantry Badge. In a July 2020 decision, the Board reopened and remanded the claims for service connection for a skin disability other than verruca planus and herpes simplex, to include as due to in-service exposure to herbicide agents, and OSA, to include as secondary to PTSD. The record reflects substantial compliance with the remand requests. Dyment v. West, 13 Vet. App. 141 (1999). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected disease or injury, will be service connected. 38 C.F.R. § 3.310(b). Thus, service connection is permitted not only for disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation by a service-connected disability. A veteran who served in the Republic of Vietnam during the Vietnam Era, the period beginning January 9, 1962 and ending May 7, 1975, shall be presumed to have been exposed to an herbicide agent (like the dioxin in Agent Orange), unless there is affirmative evidence establishing that he was not exposed to any such agent. 38 U.S.C. § 1116 (f). A disease associated with exposure to herbicide agents, including chloracne, will be considered to have been incurred in or aggravated by service even though there is no evidence of such disease during service. Such disease shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and 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 the herbicide agent. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). Skin disability other than verruca planus or herpes simplex, to include chloracne, including as due to in-service exposure to herbicide agents and as secondary to service-connected disability The Veteran asserts that he has a skin disorder, to include chloracne, due to his in service exposure to herbicide agents. Service treatment records do not show any complaints of skin problems of the lower extremities. At a September 1968 VA examination, the Veteran complained of a skin condition of the face and right arm since 1967 during service. Examination revealed herpes simplex vesicular areas on the right cheek and flat warts on the right forearm. A subsequent pathology report revealed a diagnosis of verruca planus. Based on the Veteran's service treatment records and the above examination report, service connection for herpes simplex of the right cheek and verruca planus of the right forearm was granted. VA treatment records reflect complaints of itchy skin on the lower extremities. June 2008 records show a history of a shrapnel injury to the left hand in Vietnam and complaints of progressive left hand pain as well as an itchy rash on the lower legs for the past two weeks. A June 2014 record shows a diagnosis of eczema. A March 2015 record shows a history of contact dermatitis and eczema. Then, a December 2019 tele-dermatology consultation shows complaints of itchy skin from the knees to the ankles that started in Vietnam. Examination of the lower extremities revealed dry skin and a diagnosis of eczematous dermatitis and xerosis consistent with a flare-up of eczema. In a December 2020 medical opinion, a VA examiner diagnosed eczematous dermatitis and xerosis and stated that there is no evidence of these disorders in service. The examiner stated that xerosis is dry skin and the etiology of eczema is only partially understood but is likely mediated through the immune system. The examiner stated that eczema is not caused by Agent Orange or other exposures and explained that any skin condition due to toxic exposure, including Agent Orange, would manifest at the time of exposure or proximate to it, not 50 years later. The examiner then noted that the current, widely accepted, peer-reviewed literature has not established Agent Orange as a cause of eczema or dry skin. Initially, the Board notes that the Veteran does not assert, and the record does not show, that his current skin disorders are secondary to his service-connected verruca planus or herpes simplex. Moreover, in the December 2020 medical opinion, the VA examiner stated that verruca planus and herpes simplex are associated with viral transmission and bear no relationship to the Veteran's current skin disorders. Thus, service connection on a secondary basis is not warranted. Turning to the Veteran's main assertion that he has a skin disorder, to include chloracne, due to in-service exposure to Agent Orange, the Board observes that eczematous dermatitis and xerosis are not recognized by VA as diseases associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). Thus, while the Veteran's in-service exposure to herbicides is conceded, service connection on a presumptive basis is not warranted. While chloracne is a disease associated with exposure to herbicide agents, the medical evidence of record simply does not show that the Veteran currently has chloracne. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of present disability, there can be no valid claim. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The preponderance of the evidence is against a finding that he currently has chloracne. As there is no disability related to service, the claim for service connection for chloracne, to include on a presumptive basis, must be denied. Notwithstanding the presumptive provisions, service connection may still be established by showing that a disorder resulting in disability is, in fact, causally linked to exposure to herbicides. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Here, however, there is no evidence of eczematous dermatitis or xerosis in active service, and the first evidence of the disorder is in VA medical records dated in June 2008, at which time the Veteran dated the onset of the rash on the lower legs to just two weeks earlier. That dates the onset of symptoms to almost 40 years after discharge from active service. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). While the December 2019 treatment record shows the Veteran's history of having had a skin disorder of the legs since service, the June 2008 treatment records, in which he only related a left hand disorder to service, and the September 1968 examination report, do not support that history. Thus, the Board finds that the Veteran's history as reported in December 2019 is outweighed by his history provided at the 1968 examination shortly after discharge from service and at the time of initial treatment in June 2008. Hayes v. Brown, 9 Vet. App. 67 (1996). Moreover, a VA examiner indicated that the current eczematous dermatitis and xerosis are not related to active service, to include in-service exposure to Agent Orange. As the examiner provided a sound rationale, the Board finds the opinion to be of great probative value. Id. While the examiner incorrectly dated the onset of symptoms to 50, rather than 40, years after service, the Board finds that such error does not diminish the probative value of the opinion, as one of the bases for the opinion remains that there is no evidence of a skin disorder of the legs for several decades following the Veteran's discharge from service. The Board notes that a lay person is competent to give evidence about observable symptoms such as a rash and skin lesions. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also notes that a lay person is competent to address the etiology of a disability in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While the Board appreciates the Veteran's statements regarding disability onset and chronicity of symptomatology, in this case, the record dates the onset of symptoms to almost 40 years after his separation from active service, and the questions of diagnosis and causation extend beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the diagnosis or etiology of his skin disorder. As discussed above, the medical evidence shows that he does not have chloracne, and the skin disorders that he does have are not related to his active duty or the service-connected verruca planus or herpes simplex. The Board thus finds that the Veteran's skin disorders are not secondary to service-connected verruca planus or herpes simplex and are not otherwise related to an in-service injury or disease, to include exposure to herbicide agents. Accordingly, service connection for a skin disorder other than verruca planus or herpes simplex, to include chloracne, including as due to in-service exposure to herbicide agents and as secondary to a service-connected disability, is not warranted. As the preponderance of the evidence is against this claim, it must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). OSA, to include as secondary to the service-connected PTSD The Veteran asserts that his OSA is secondary to his service-connected PTSD. In a July 2019 medical opinion, a VA examiner reviewed the claims file and stated that the Veteran has risk factors for developing OSA, including obesity which is a major cause of OSA. The examiner noted that the current, reliable, well-founded scientific medical literature still does not state that PTSD specifically or directly causes OSA. The examiner noted that there are some outlying articles that mention associations, suggestions and links between PTSD and OSA, but none specifically notes a direct cause and effect relationship. The examiner stated that associations, suggestions and links do not constitute true causation. The examiner concluded that the Veteran's OSA was not caused by his service-connected PTSD. At an April 2021 VA examination, the Veteran reported that his OSA began 20 to 40 years ago and explained that his wife would wake him up as he would stop breathing. In a separate medical opinion, the examiner concluded that the Veteran's OSA was not caused by his PTSD and explained that a thorough review of the medical literature failed to demonstrate a causal relationship. The examiner concluded that the Veteran's OSA was aggravated by his PTSD, noting that his OSA has worsened with his worsening PTSD. However, in a later medical opinion, the examiner concluded that the Veteran's OSA was not aggravated by his PTSD. The examiner explained that the Veteran believed that he did not have OSA and so did not use his CPAP, which had a direct negative impact on his OSA, ultimately making his symptoms worse, not his PTSD. In a May 2021 addendum, another VA examiner stated that, while obesity is a significant risk factor for OSA, the Veteran's obesity cannot be attributed to his PTSD. The examiner noted that obesity is caused by a combination of excessive food intake and lack of physical activity, neither of which is attributable to PTSD, as food intake and physical activity level are personal choices. The examiner noted that many people have PTSD and are not obese. The examiner stated that, having determined that the Veteran's obesity is not caused by his PTSD, there is no link to his OSA. The examiner further stated that there is no credible medical evidence to support the suggestion that his OSA has been aggravated by his PTSD as there is no mechanism to support a potential aggravation. The examiner then stated that, as obesity is only one of many risk factors for OSA, there is no evidence to show that the Veteran's OSA would not have occurred but for the obesity. In June 2021, the Veteran submitted a copy of a research article indicating a link between OSA and depression. Given the totality of this evidence, however, the Board finds that the Veteran's OSA is not proximately due to, the result of, or aggravated by his service-connected PTSD. After a review of the claims file and the current medical literature on the risk factors for OSA, every examiner ultimately concluded that there is no direct cause and effect relationship between PTSD and OSA. There is no favorable medical opinion (specific to the facts of this case) of record. In this regard, the Board reiterates that the May 2021 examiner ruled out the possibility that the Veteran's obesity was an "intermediate step" between his service-connected PTSD and OSA under 38 C.F.R. § 3.310. VAOPGCPREC 1-2017. Thus, service connection for OSA as secondary to the service-connected PTSD is not warranted. The Board observes that medical treatises such as the one submitted by the Veteran can provide important support when combined with a medical professional's opinion if they discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. See Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). However, in this case, there is no favorable medical opinion that discusses this medical treatise. Standing alone, the medical treatise submitted by the Veteran is too general to constitute a causal link that is more than speculative in nature. The medical opinions of record are based on the current medical knowledge base regarding OSA and its known risk factors. Lastly, the Veteran does not assert, and the record does not show, that his OSA onset during his active duty or is otherwise related to such service. Service treatment records do not show any complaints, findings, or diagnoses of OSA. While VA treatment records show a long history of snoring and apneas in December 2013, they do not relate such history to service. At the April 2021 VA examination, the Veteran dated the onset of his OSA to around 1980 (over 10 years after his discharge from active service). The passage of so many years between discharge from active service and the objective documentation of a disability is a factor that weighs against a claim for service connection. Maxson, 230 F.3d 1330. The medical evidence of record contains no indication that his OSA began in his active duty or is related to such service. Thus, the Board finds that the Veteran's OSA did not began during his active service and is not otherwise related to an in service injury or disease. Accordingly, the Board concludes that service connection for OSA, to include as secondary to the service-connected PTSD, is not warranted. As the preponderance of the (CONTINUED ON NEXT PAGE) evidence is against this claim, it must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. W. Kim, 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.