Citation Nr: 21009989 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 12-11 805 DATE: February 23, 2021 ORDER Entitlement to service connection for a skin disorder is granted. FINDINGS OF FACT Resolving all reasonable doubt in the Veteran’s favor, his dermatitis was caused or aggravated by active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a skin disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to October 1970, with verified service in the Republic of Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified in an October 2014 Board hearing before the undersigned Veterans’ Law Judge (VLJ). A transcript of the hearing is associated with the Veteran’s claims file. This case was previously before the Board in December 2014, February 2017, April 2018 and most recently April 2020 when it was remanded for a new VA examination and medical opinion to address the nature and etiology of any diagnosed skin condition. The Board notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA’s duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998); but see D’Aries v. Peake, 22 Vet. App. 97, 104 (2008). The matter has returned to the Board for appellate review. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process or relatively close thereto can justify a grant of service connection, even where such disability has become asymptomatic. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Board notes the Veteran is presumed to have been exposed to herbicide agents, including Agent Orange, during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309(e). Based on exposure to an herbicide agent during service, certain diseases are presumed to have been incurred in service, if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Id. Dermatitis is not among the diseases for which service connection is warranted on a presumptive basis. 38 C.F.R. § 3.309(e). However, the Veteran could still establish service connection for this condition with competent evidence that it was incurred in service, was present during other presumptive periods, or by submitting medical or scientific evidence that it was in fact due to herbicide exposure or other disease or injury during service. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Board acknowledges that the Veteran has a diagnosis of dermatitis confirmed during this appeal. See September 2020 VA skin diseases examination. Thus, the only question for the Board is whether his skin disability began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran’s service treatment records (STRs) include a May 1970 treatment record noting the Veteran had a rash on his body and was prescribed medication. His STRs also include an October 1968 pre-induction Report of Medical History (RMH) wherein the Veteran indicated he has or has had a skin disease that was later noted on the RMH as a non-specific rash. An October 1968 Report of Medical Examination (RME) noted the Veteran’s skin was normal and is otherwise silent as to any skin condition. An October 1970 RME for separation also notes the Veteran’s skin is normal and is silent to any skin conditions. Post service treatment records include an October 2010 primary care record noting the Veteran was seen for follow-up for a skin rash; physical examination reveals possible hyperpigmented area on right forearm and back. A March 2011 VA dermatology record noting the rash resolved at the time of appointment; however, a residual dark spot was noted. A December 2013 primary care record noting the Veteran reported a rash on his left leg, diagnosed as a possible lichenified scaly rash on left upper thigh. A February 2014 dermatology record noting left hip rash, and a separate February 2014 dermatology record noting the results of a punch biopsy showed a diagnosis of dermatitis. The claims file includes a June 2015 VA skin examination wherein the examiner noted a diagnosis of dermatitis. During the examination, the Veteran reported areas affected by hyperpigmented patches with pruritus have included the torso, bilateral arms and bilateral legs. He also asserted that the rash has gotten worse as he ages. The examiner noted the February 2014 punch biopsy results that showed a diagnosis of dermatitis. The examiner noted near constant/near-constant topical corticosteroid treatment during the past 12 months. In an attached medical opinion, the examiner cited the 1968 RMH noted above and opined that there is clear evidence that a skin disorder preexisted active service. The examiner also noted that the documentation of the preexisting skin disorder is so nonspecific it is not possible to identify what skin disorder may have existed with resorting to mere speculation; nor is it possible to determine if the undetermined preexisting rash was aggravated. Thus, the examiner noted an inability to state, without resorting to mere speculation, if the Veteran’s dermatitis occurred during active service. The Board notes that the Veteran was afforded subsequent VA skin examinations in July 2017 and January 2018 that confirmed a diagnosis of dermatitis and provided negative etiology opinions for direct service connection while remaining silent as to aggravation. The claims file also includes an October 2019 VA skin examination wherein the examiner found no evidence of a chronic skin condition during active service or of a subsequent permanent aggravation of any skin condition. However, the Board’s April 2020 REMAND found that the VA examiner’s rationale failed to address either prong of the “clear and unmistakable” evidence standard and the matter was REMANDED for a new examination and medical opinion. An August 2020 VA skin examination confirmed a diagnosis of dermatitis from the 1950’s and noted the skin was currently asymptomatic. The examiner opined the claimed skin condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner noted the dermatitis off/on/treated/resolved has been happening since childhood and was last treated in 2014; therefore, it is less likely than not from service. The examiner noted the October 1968 enlistment examination that revealed non-specific rash, preexisting service. As noted above, the Veteran testified at an October 2014 hearing that he suffered poison ivy as a child. He is competent to describe skin symptoms including the character of the rashes noted as blisters during childhood and bumpy-like during and after service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that a Veteran is presumed to be in sound condition at entrance into military service, except for conditions noted on the entrance examination. 38 U.S.C. § 1111. To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Lay statements by a Veteran concerning a pre-existing condition are not sufficient to rebut the presumption of soundness; rather, supporting medical evidence is needed to establish the presence of a preexisting condition. See Crowe v. Brown, 7 Vet. App. 238 (1994). A thorough review of the claims file in this case reveals that there is no competent evidence to rebut the presumption of soundness. While there is an indication that the Veteran may indeed have suffered from a skin rash as a child, the Board is disinclined to rely on the August 2020 examination for certainty on this matter. The examiner noted that there is clear and unmistakable (obviously, manifestly or undebatable) evidence that any current skin disorder preexisted military service based on the October 1968 RMH. As a legal matter, the Board therefore cannot find the presumption of soundness to be rebutted. Therefore, despite significant but legally insufficient evidence to the contrary, the Board will treat the Veteran as sound at entry into service as to a skin disease to include dermatitis. The Board is mindful of the negative etiological opinions in this matter. However, the Board notes that the Veteran’s STRs contain complaints for, diagnoses of, and treatment for a skin rash. Post service treatment records indicate that the Veteran was diagnosed with dermatitis. Applying the benefit-or-the-doubt standard of proof, the Veteran’s claim of service connection for a skin disease to include dermatitis is granted. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Banks, 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.