Citation Nr: 21077356 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 14-24 964 DATE: December 29, 2021 ORDER Entitlement to service connection for a skin disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his skin disability began during service and has been continuous to the present. CONCLUSION OF LAW The criteria for a grant of service connection for a skin disability have been met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1968 until his honorable discharge in May 1970, including service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Purple Heart Medal, Vietnam Service Medal, Vietnam Campaign Medal, and Combat Infantryman Badge. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country. This case has a long procedural history, initially coming to the Board on appeal of a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office. In March 2016 and May 2018, the Board remanded the claim for entitlement to service connection for a skin disability and entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. In a February 2021 rating decision, a regional office awarded service connection for PTSD (also claimed as depression) with an evaluation of 30 percent effective March 29, 2012; thus, this issue is no longer on appeal. The issue of entitlement to service connection for a skin disability has now been returned for appellate consideration. The Board is satisfied that there has been substantial compliance with the remand directives. Thus, no further action is required. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Generally, to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Veterans who served in the Republic of Vietnam (RVN) during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to a herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. See 38 C.F.R. § 3.309(e). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the RVN during the Vietnam era. To benefit from the presumption of service connection for diseases associated with herbicide exposure, a Veteran must have one of the diseases enumerated in 38 C.F.R. § 3.309(e). Notwithstanding the provisions of 38 U.S.C. § 1116 and 38 C.F.R. § 3.309(e), related to presumptive service connection due to exposure to Agent Orange, a claimant is not precluded from establishing service connection with proof of actual causation, that is, proof the exposure to Agent Orange actually causes a disability, which is not included in the list in 38 C.F.R. § 3.309(e). See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). Entitlement to service connection for a skin disability. The Veteran asserts his current skin disability had its onset during military service, including his exposure to Agent Orange. The Veteran stated, while in the Republic of Vietnam, he experienced chronic rashes and he has continuously experienced relevant symptoms since that time. In resolving reasonable doubt in favor of the Veteran, the Board finds the criteria for service connection has been met. As an initial matter, the Board finds the evidence of record demonstrates the Veteran has been diagnosed with a skin disability, diagnosed as rash, dermatitis, and xerosis. See, e.g., Detroit VA Medical Center records and September 2021 VA examination. The presence of a chronic disability at any time during the claim process can justify a grant of service connection even if the disability has since resolved or where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Thus, the Veteran has met the threshold requirement for a current skin disability. Regarding an in-service incurrence, the Veteran's service treatment records (STRs) reflect treatment for skin disabilities. In July 1968 the Veteran reported to the Ireland Army Hospital with complaints of a rash/poison oak mix; in August 1968 the Veteran reported to the Ireland Army Hospital with complaints of allergy to KP detergent. Additionally, the Veteran's DD Form 214 confirms he served in the RVN from November 1968 to March 1969. Lastly, in the October 2014 Statement of the Case (SOC), the Agency of Original Jurisdiction (AOJ) found the Veteran had satisfied the second element of service connection. Thus, the issue on appeal turns on whether there is a link between the Veteran's currently diagnosed skin disability and his military service. While the Veteran's skin disability is not a chronic disease listed under 38 C.F.R. § 3.309(a), the Board has nonetheless found the evidence at least in equipoise on the question of whether he had skin disability symptoms that began in service and continued since service separation, thus tending to show direct service incurrence. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Turning to the medical opinions of record regarding the etiology of the Veteran's skin disability, the Veteran underwent a VA Skin Diseases examination in August 2014. The examiner provided a negative nexus opinion. As rationale, the examiner stated, the Veteran incurred a rash during service that was found to be an allergic reaction, but that the rash only appeared under certain environmental situations and that, if it were service-related, it would be there all the time. In the March 2016 remand decision, the Board found the August 2014 medical opinion inadequate for adjudicative purposes. Specifically, the examiner did not address the Veteran's assertion that he did not incur rashes prior to service, and the examiner did not explain why the rashes' appearance in response to certain environmental situations precluded a relationship with service, or why a rash would need to be present constantly to be related to service. Additionally, the examiner did not discuss records documenting VA treatment in August 2012 for a rash that the Veteran stated had been recurring since the 1970s and 1980, and which the clinician diagnosed as dermatitis. In a June 2016 VA addendum opinion, the examiner opined the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner stated, although the onset was recent, this did not preclude an earlier attack. However, the histopathology is not consistent with a rash typical of exposure to herbicides. In a November 2016 addendum, the same examiner provided the same opinion without any additional explanation or information. In the May 2018 remand decision, the Board found the June 2016 and November 2016 VA opinions did not address the Veteran's statements regarding prior existence of a rash or provide a thorough explanation as to why the rash is not related to service. Pursuant to the Board's May 2018 remand, the Veteran underwent a VA Skin Diseases examination in September 2021. During the examination the Veteran reported a recurrent, itchy rash with fluid-filled bumps, primarily located on his arms and legs, worsening in heat and when sweating. The onset of the rash was 1969, while in Vietnam. The Veteran stated during service he was treated for poison oak exposure, and an allergy to KP detergent; however, he was not treated for the chronic rash. The Veteran explained, he believed the rash was a heat rash, and though the rash went away, it reoccurs frequently. The VA examiner diagnosed xerosis and provided a negative nexus opinion. As rationale, the examiner stated: Without resorting to mere speculation there is no way of knowing if what the Veteran incurred while in the service is related to what he is experiencing now. There have been numerous diagnoses documented including acute poison oak exposure, contact dermatitis to detergent, and possible drug eruption. It is unclear what the diagnosis of his skin condition is, and if all the instances of undocumented rashes were the same. [August 2012 skin] biopsy was suggestive of more acute exposure to a trigger rather than a chronic condition, so it is unlikely to be due to exposures from decades ago while he was in service. It is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). Upon review, and resolving any reasonable doubt in the Veteran's favor, the Board finds the Veteran's skin disability is related to his active service. See 38 C.F.R. § 3.102. As noted, the August 2014, June 2016, and November 2016 medical opinions were found inadequate by the Board. Additionally, the Board finds the September 2021 opinion to inadequate because the Veteran's diagnosis is unclear. Lay 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2008). The Veteran is competent to describe the onset of a skin condition during his military service. He is also competent to report continuing symptoms of a skin condition since his discharge as they are subject to and readily observable by laypersons, and the Board has no reason to doubt his credibility. Given the lack of an adequate medical opinion to weigh against the Veteran's competent and credible lay reports of in-service onset of a skin disability and continuing skin symptoms since service separation, the evidence is at least in equipoise. Therefore, the Veteran prevails. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Affording the Veteran the benefit of the doubt, service connection for a skin disability is granted. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, 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.