Citation Nr: 21011277 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-10 132A DATE: March 1, 2021 ORDER Entitlement to service connection for a skin disorder, claimed as exfoliative dermatitis, to include as due to toxic herbicide exposure, is denied. FINDING OF FACT The Veteran’s skin condition is not presumed related to his toxic herbicide exposure, and it is not related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a skin disorder, claimed as exfoliative dermatitis, to include as due of toxic herbicide exposure have not been met. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty military service from August 1969 to August 1971, to include service in the Republic of Vietnam for which he earned the Combat Infantry Badge. This matter returns to the Board of Veterans’ Appeals (Board) following the issuance of a February 2020 Board decision which directed the Regional Office (RO) to complete additional development. Service Connection Under the relevant laws and regulations, 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. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, 2,4-Dichlorophenoxyacetic acid or 2,4,5-Trichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C.§ 1116; 38 C.F.R. § 3.307(a)(6). Notably, these were the key compounds found in the tactical herbicides used during that time, with "Agent Orange" being the most common. Service connection is warranted for a veteran who has been exposed to toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)) for diseases such as chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, non-Hodgkin's lymphoma, porphyria cutanea tarda, multiple myeloma, prostate cancer, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson's disease, B-cell leukemias, respiratory cancers, and ischemic heart disease. 38 C.F.R. § 3.309(e). 1. Entitlement to service connection for a skin disorder, claimed as exfoliative dermatitis, to include as due to toxic herbicide exposure The Veteran is seeking service connection for a skin condition, claimed as exfoliative dermatitis (erythroderma), also known as dry skin. Specifically, he asserts is a result of his exposure to toxic herbicides while serving in Vietnam. After a review of the evidence, the Board finds that service connection is not warranted for the Veteran's skin condition. In this case, the evidence indicates that the Veteran served in the Republic of Vietnam during this time period. Accordingly, he is presumed to have been exposed to toxic herbicides. However, he has not been diagnosed with any of the disorders listed in 38 C.F.R. § 3.309(e). Therefore, service connection may not be granted for any of the disorders on appeal on a presumptive basis. The Board notes that the Veteran participated in active combat and was awarded the Combat Infantry Badge. Thus, the combat presumption for combat-related injuries or diseases applies. Under the combat presumption, a veteran’s lay statements alone regarding service incurrence must generally be presumed credible if consistent with the circumstances, conditions or hardships of such service (absent clear and convincing evidence to the contrary). 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). As a preliminary matter, the Board finds that the combat presumption should not apply in this instance as the Veteran has not alleged that his erythroderma is related to a disease or injury incurred in or aggravated by his participation in combat. Specifically, he generally alleges that his dry skin began in 1971 and asserts that it is due to exposure to herbicidal agents, not combat operations. 38 U.S.C. § 1154 (b). However, the combat presumption does not apply to presumptively establish that the Veteran had an actual diagnosed skin disorder that is etiologically related to his active duty service because this needs to be established by medical findings and opinions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In fact, the Veteran’s 1971 report of medical history completed by the Veteran undermines his claim that his current back disorder began during his participation in combat because there he denied any skin disorder and indicated that he was “in good health.” Next, the Veteran is not precluded from establishing service connection for a skin disorder with proof of actual direct causation as due to active duty service. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). Nevertheless, service connection is also not warranted on this basis. The Veteran’s service treatment records do not reflect complaints of, treatment for, or a diagnosis related to a skin condition while in service. Significantly, the Veteran's July 1971 separation physical examination fails to document any complaints of or observed symptoms related to a skin condition. In fact, the post-service evidence does not reflect symptoms related to a skin condition for many years after the Veteran left active duty service. Specifically, the Veteran was treated for fungus and folliculitis in 1984, there is no further occurrence noted. His current skin condition was first documented in 1998, approximately 27 years following his separation from service. While the Veteran has alleged that his condition began in 1971, there is no record of such treatment in the evidence of record, and even if it were conceded, there would be no indication of the potential clinical results. Additionally, it is important to the Board that the Veteran was given the opportunity to report symptoms of his skin disorder at his separation examination but chose not to. Continuity of symptoms has not been shown based on the clinical evidence, as there is no indication of symptoms or a diagnosis within one year of the Veteran’s separation from service. The Board recognizes the statements from the Veteran regarding his history of symptoms since service. While he is competent to report symptoms such as dry skin, he is not competent to provide a diagnosis in this case or determine that any reported symptoms were manifestations of a particular disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, to the extent the Veteran asserts that his disorder has persisted since service, the Board determines that the Veteran’s reported history of continued symptoms while competent, is nonetheless insufficient to establish a relationship between his complaints and active service. Nevertheless, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is nonetheless not sufficient to establish continuity of symptomology. As an initial matter, the large gap in treatment for the asserted condition weighs against the Veteran’s claims. See Kahana v. Shinseki, 24 Vet. App. 428, at 439-40 (2014) (The Board may weigh silence in a medical record against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated). Further, the Board notes that the Veteran filed a claim for VA education benefits in 1973, many years prior to filing the claims on appeal. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out a claim for other benefits but made no reference to the disorders he now claims, weighs heavily against his credibility. Accordingly, service connection based upon continuity of symptoms cannot be conceded and is not shown. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed condition to active duty, despite his contentions to the contrary. The evidence of record fails to indicate that the Veteran’s erythroderma is related to his active duty service, nor has any treating physician opined that such a relationship exists. Moreover, the Veteran has not submitted any evidence, including private examinations, to support his claim and theory of service connection. The Board places significant value on the opinion submitted by the March 2020 VA examiner, who stated that it was less likely than not that the Veteran's claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The examiner cited the length of time between the Veteran’s military service and the first diagnosis of erythroderma, approximately 27 years. Additionally, the examiner noted that erythroderma is not a condition attributable to exposure to toxic herbicides. To the extent that the Veteran’s representative alleges that the March 2020 examination was inadequate, the Board disagrees. The March 2020 examination, in conjunction with the above stated evidence, is adequate to decide the claim. It was performed by an appropriate examiner. The examiner offered a full medical opinion based on a review of the Veteran’s claims file, in-person examination of the Veteran, and offered a complete medical opinion with rationale based on the relevant information. 38 C.F.R. § 3.159 (c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In adjudicating this claim, the Board has specifically considered the statements made by the Veteran relating his skin condition to service. The Federal Circuit has held that "[l]ay 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). Although the Veteran is competent to testify about the presence of observable symptomatology, he is not competent to provide a medical opinion linking his skin disorder to service. Such a medical nexus does not involve a simple identification that a layperson is competent to make. See Jandreau, 492 F.3d at 1377, n.4. Accordingly, the Board finds that the weight of the competent evidence does not attribute the Veteran's skin condition to military service despite his contentions to the contrary. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the most probative evidence is against the claim, the doctrine is not applicable in this case. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Hernan, Associate Counsel