Citation Nr: 21007860 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 15-45 355 DATE: February 10, 2021 ORDER Service connection for a skin disability, to include acne, rosacea, seborrheic dermatitis, viral infection, scalp fungal infection, chloracne and skin cancer, and including exposure to herbicide agents is denied. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents during verified service in the Republic of Vietnam during the Vietnam Era. The Veteran has not been diagnosed with soft tissue sarcoma, chloracne or any other listed disease eligible for presumptive service connection for herbicide exposure. 2. The Veteran’s claimed skin disabilities of acne, rosacea, seborrheic dermatitis, viral infection, scalp fungal infection, chloracne and skin cancer, are not related to presumed in-service herbicide exposure or service or any event of service. CONCLUSION OF LAW The criteria for service connection for a skin disability, to include acne, rosacea, seborrheic dermatitis, viral infection, scalp fungal infection, and skin cancer, including due to herbicide exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1962 to August 1966, including service in the Republic of Vietnam. This appeal arises from a June 2015 rating decision, denying service connection for skin disabilities of acne, rosacea, viral infection, and scalp fungal infection. A July 2015 rating decision continued to deny the claim. The Veteran testified at a Board hearing at the RO in September 2018, before the undersigned Veterans Law Judge (VLJ). A transcript is of record. In October 2019 and again in September 2020, the Board remanded the case to the AOJ for additional development and consideration. The file is again before the Board for further appellate review. Entitlement to service connection for a skin disability, to include acne, rosacea, seborrheic dermatitis, viral infection, scalp fungal infection, chloracne and skin cancer, to include exposure to herbicide agents. The Veteran contends that his current skin disability, to include claimed viral infection, rosacea, scalp infection, fungal infection, acne, chloracne and skin cancer, is related to herbicide agent exposure during the Vietnam War. See September 2018 hearing transcript. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires evidence demonstrating: (1) the existence of 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 claimed in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 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, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a)(6)(iii). If a Veteran is presumably exposed to an herbicide agent, then there is a presumption of service connection for certain enumerated diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a) and 3.309 (e). A review of his service personnel records reveal service in the Republic of Vietnam from December 1964 to December 1965. As such, the Veteran is presumed to have been exposed to herbicide agents during service. Regarding the Veteran’s claimed skin cancer, the Board notes that soft tissue sarcoma and chloracne are skin diseases that are associated with herbicide exposure under 38 C.F.R. § 3.309 (e). Initially, the February 2020 VA examiner noted the Veteran had skin cancer conditions of malignant melanoma that resolved in 2013 and squamous cell carcinoma that resolved in 2018. The examiner commented that the Veteran underwent wide excision of a melanoma on the inner aspect of his left leg in 2013 and he underwent wide excision of a squamous sarcoma of the left arm in 2018. The February 2010 VA examiner’s review of medical history also indicated a past diagnosis of chloracne during 1998-2010. Also, the Veteran’s private treating physician, Dr. S.W., stated his squamous cell carcinoma in situ was treated in January 2019. See February 2020 letter by Dr. S.W. Regarding presumptive service connection, there is highly probative evidence against the possibility that the Veteran has ever had a skin disease that is presumptively eligible for service connection based upon herbicide exposure under § 3.309 (e). In November 2020 a VA medical opinion clarified that “The medical record does not support a diagnosis of soft tissue sarcoma.” The November 2020 VA physician reasoned, “There is no medically known condition of squamous sarcoma which is repeatedly referenced in the medical record and on [February 2020] skin DBQ. The Veteran has been treated for superficial spreading melanoma in 2016 and there is no evidence of recurrence…. There is no documentation of “squamous sarcoma” which is not a recognized medical diagnosis.” So, the Veteran has not had a diagnosed soft tissue sarcoma that is eligible for presumptive service connection for herbicide exposure. The November 2020 VA physician also specifically found there is no documentation of a diagnosis of chloracne, referencing findings by the Veteran’s treating dermatologist in February 2020 that the Veteran does not have chloracne. See February 2020 letter by Dr. S.W. Given the November 2020 VA medical opinion physician’s thorough review of the claims file, particularly including the dermatological medical evidence of record, and discussion of the rationale of the opinion, the Board finds the VA examiner's opinion is highly probative evidence against the claims. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). Further, none of the Veteran’s other claimed skin disabilities of acne, rosacea, seborrheic dermatitis, viral infection, scalp fungal infection are listed as a disease associated with herbicide exposure under 38 C.F.R. § 3.309 (e). Thus, service connection on a presumptive basis is not warranted. However, the governing regulations allow the Veteran to instead establish service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (1994). In this regard, a review of the Veteran’s service treatment records (STRs) shows he experienced skin problems during service. For instance, the Veteran was treated for rashes and penile lesions in service. See March 1963, January 1965, and July 1965 service treatment records. Nonetheless, the Veteran appears to be lacking a current skin disability. The requirement that a current disability be present is satisfied when a claimant has a disability: 1) at the time a claim for VA disability compensation is filed, or 2) during the pendency of that claim, even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Initially, the February 2020 VA examiner essentially found the Veteran had no current skin disability to relate to service. The February 2020 VA examiner made findings against current diagnoses of acne, rosacea, viral infection, or a scalp fungal infection, noting they were resolved conditions. On remand, the November 2020 VA physician also appeared to affirm the February 2020 VA examiner’s findings that the Veteran has no currently diagnosed skin disability, to include acne, rosacea, viral infection, or a scalp fungal infection. Overall, the Board finds these VA examiner findings in February 2020 and November 2020 against the possibility of a current skin disability are highly probative evidence against his claim. See Nieves-Rodriguez, 22 Vet. App. at 295. At this time, the Board acknowledges that in the February 2020 remand, the Board found the February 2020 medical opinion inadequate; however, the November 2020 reviewed the February 2020 medical opinion and provided affirmations and where appropriate, additional clarification. Thus, the Board finds the affirmations of the February 2020 medical opinion are relevant and probative. As such, the record does not establish the preliminary element of service connection, namely showing of a current skin disability. It is well-established that the existence of a current disability is the cornerstone of any claim for VA disability compensation. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Alternatively, even when assuming the presence of a current disability, the evidence still weighs against the Veteran’s claim. There is no medical opinion evidence that relates any current skin disability to service. In fact, there is highly probative evidence against the skin disability claim. For instance, the November 2020 VA medical opinion physician specifically discounted the notion that any claimed skin disability was related to service, including due to accepted in-service herbicide exposure. The examiner stated, “Despite lay statements to the contrary, 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.” In relevant part, the November 2020 VA physician’s reasoned, “STRs document self-limited skin rash due to measles and impetigo in service. Separation exam is silent regarding any skin condition. STRs do not document other skin conditions in service, including acne, rosacea, chronic viral infection (including genital herpes and except self-limited rash due to measles), and a scalp fungal infection. Regarding the latter condition, treatment records show the Veteran was prescribed shampoo for fungal infection of the scalp in July 2013, over 45 years after discharge from active duty service. Treatment records from Puget Sound VA Medical Center show an assessment of rosacea in March 2013, again, over 45 years after discharge from active duty. STRs do not document acne during service.” Moreover, this opinion is highly probative based upon the VA examiner’s review of medical records, consideration of the Veteran’s contentions and in-service skin treatment, and discussion of the rationale of the opinion. Nieves- Rodriguez, 22 Vet. App. at 304 The Board notes that the February 2020 VA examiner provided a negative nexus opinion against the possibility that malignant melanoma and squamous cell carcinoma, in particular, were related to service, including herbicide agent exposure. As noted above, in November 2020, although the examiner found that the disorders were not present, the examiner also found that it was less likely than not that any claimed skin disorder was caused by or otherwise etiologically related to active service, including the conceded herbicide agents. Thus, the probative evidence weighs against the Veteran’s claim. As the Veteran is a layperson, the Board finds that he is not competent to self-diagnose any chronic disability related to his claimed skin diseases, because this requires medical expertise he does not possess. The Board further acknowledges the Veteran’s lay statements that his claimed skin diseases are related to in-service exposure to herbicides, but he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it involves dermatological disease processes and requires knowledge of interpretation of complicated diagnostic medical testing. See Jandreau, 492 F.3d at 1377 n.4. Lastly, there is no contention or evidence that a malignant tumor of the skin manifested to a compensable degree within a year after discharge. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). (Continued on the next page)   Accordingly, the Board concludes the evidence does not support the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.