Citation Nr: 21011290 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 13-23 522 DATE: March 1, 2021 ORDER Entitlement to service connection for a skin disorder, to include as due to exposure to herbicide agents, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s skin disorder began during active service or is otherwise related to an in-service injury or disease, to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for a skin disorder, to include as due to exposure to herbicide agents, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to February 1972 with service in the Republic of Vietnam from December 1969 to November 1970. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in August 2016. The hearing transcript is of record. This claim was previously remanded by the Board in January 2017, August 2018, and August 2020 for further development by the RO. The case has been returned to the Board for further appellate action. The Board finds substantial compliance with the remand directives and therefore another remand is not necessary. Stegall v. West, 11 Vet. App. 268 (1998). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for a skin disorder, to include as due to exposure to herbicide agents The Veteran contends his various skin conditions were incurred in service, or alternatively, due to exposure to herbicide agents. Specifically, the Veteran contends he was treated for a rash or skin fungus in his groin area in Vietnam that was referred to as “jungle rot,” and that his condition has continued since then. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). VA laws and regulations provide that, if a Veteran was exposed to certain herbicide agents during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). Of the listed diseases, two are skin conditions: porphyria cutanea tarda and chloracne. A veteran who “served in the Republic of Vietnam” between January 9, 1962 and May 7, 1975 is presumed to have been exposed to herbicide agents during such service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Even if service connection is not warranted under one of the presumptive regulations, this does not preclude a claimant from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to herbicide agents. Brock v. Brown, 10 Vet. App. 155 (1997). The Veteran is diagnosed with actinic keratoses, seborrheic keratoses, lipoma, nonmelanoma skin cancer (basal cell carcinoma), mild xerosis, benign cherry angioma, verruca vulgaris, and tinea versicolor. See, e.g., September 2019 VA examination and August 2020 VA addendum opinion. Regarding the in-service incurrence, the Board notes that service treatment records (STRs) during the Veteran’s Vietnam service from December 1969 to November 1970 are missing. The file currently contains partial service treatment records from February 1971 to August 1971, a single medical abstract note from January 1970, and entrance and separation examinations. The Board remanded this case in August 2020 to obtain complete service treatment records for his Vietnam service. The RO has been unable to obtain all the Veteran’s service treatment records (STRs). In a case, as here, where a claimant’s STRs are unavailable through no fault of his own, there is a heightened obligation for VA to provide reasons or bases for any adverse decision rendered without these records and to carefully consider applying the benefit-of-the-doubt doctrine. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a Veteran in developing facts pertaining to his claim in a case in which STRs are presumed destroyed includes the obligation to search for alternative records). But missing records concerning the Veteran’s service, while indeed unfortunate, do not, alone, obviate the need to satisfy the criteria for service connection. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O’Hare, supra. In other words, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board’s obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). Cf. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999). As above, the Veteran served in the Republic of Vietnam between December 1969 and November 1970. Therefore, he is presumed exposed to herbicide agents. Additionally, available STRs indicate the Veteran was treated for a diffuse macular rash caused by Rubella in February 1971, and furuncles in his groin, inner thigh, and face between August and November 1971. A January 1970 medical abstract note shows that the Veteran visited the medical dispensary while in Vietnam but does not indicate the reason for his visit. The combat presumption under 38 U.S.C. § 1154(b) provides that veterans who engaged in combat with the enemy can prove that a disease or injury was incurred or aggravated in service by lay evidence alone, as long as the evidence is consistent with circumstances of service and is not rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010). The provisions of 38 U.S.C. § 1154(b) do not establish a presumption of service connection but ease the combat veteran’s burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Caluza v. Brown, 7 Vet. App. 498 (1995). Here, the Veteran is a combat veteran of the Vietnam War. The Veteran has consistently reported treatment for a skin rash referred to as “jungle rot,” and the available STRs from that period indicate at least one medical visit. The Board finds that the Veteran’s statements about receiving treatment for “jungle rot” as an in-service cause of his current skin condition are consistent with the circumstances of his service and therefore an in-service event is satisfied. Therefore, the question is one of relation to exposure to herbicide agents or in-service treatment for “jungle rot.” The Veteran first established care with the VA in August 2005. At that time his only skin complaint was a mole on his right shoulder. The Veteran completed an Agent Orange Registry examination that same month and was subsequently referred to dermatology to evaluate nevi, dry light brown patches on his arms and back, and possible lipomas. The Veteran was diagnosed with tinea infection on his arms and prescribed a topical cream. See October 2005 VA treatment records. In September 2011, the Veteran reported a rash on his trunk since he left Vietnam, at times turning into welts. On examination, tan, macular lesions on his chest, left thigh, and back were found. He was diagnosed with mild xerosis (dry skin) and benign cherry angiomas. In August 2012 his diagnosis was noted as chronic rash/xerosis. In September 2012 he was diagnosed with seborrheic keratitis on the right temple, a probable lipoma on his right neck, and a benign lesion on his right upper arm. An August 2013 letter from private dermatologist, Dr. J.U., indicates that the Veteran reports his tinea versicolor has been present for over 30 years. Private treatment records reflect several Mohs treatments for basal cell carcinoma in 2013 and 2014. He received the same treatment at the VA in 2018. A December 2015 Agent Orange Registry examination showed no complaints or findings of skin conditions other than basal cell carcinoma. In February 2017 the Veteran was diagnosed with a wart and actinic keratoses on his chest, tinea versicolor, and chronic solar elastosis and photodamage. In March 2017 he was diagnosed with verruca vulgaris (wart) on the left thigh, actinic keratosis on the left temple, and skin tags in various locations. In August 2017 the Veteran reported itching in the groin area. He reported he had this after Vietnam, and it resolved after treatment but was recently having a return of symptoms. He was diagnosed with tinea cruris, tinea versicolor, skin tags, seborrheic keratosis, and a history of nonmelanoma skin cancer. In October 2019 the Veteran reported a history of “jungle rot” in his groin, currently not flaring, and some rough skin at his temples. Examination revealed dry scales, multiple lesions, papules, and macules on the trunk, head and extremities, but no rash. His diagnoses were actinic keratoses, seborrheic keratoses, lentigines, benign nevi, cherry angiomas, past medical history of tinea cruris (not flaring), and skin tags in the groin. The Veteran was afforded VA examinations in May 2013, January 2018 and September 2019, and an addendum VA opinion in August 2020. In the Board’s January 2017 remand, the Board found the May 2013 VA examination did not consider all the Veteran’s skin conditions. After the case was returned to the Board, the Board found the January 2018 VA examination inadequate because the examiner made no specific findings as to the Veteran’s diagnosed tinea versicolor, did not adequately address the etiology of the Veteran’s basal cell carcinoma, and failed to address the remaining diagnosed skin conditions. Similarly, after the case was again returned to the Board, the Board found the September 2019 opinion inadequate as it failed to address the lack of STRs in file and the Veteran’s statements regarding an ongoing skin rash since service. Therefore, the Board will focus its discussion on the most recent, September 2019 VA examination findings and August 2020 addendum VA opinion. In September 2019, the VA examiner noted the following diagnoses: actinic keratoses, seborrheic keratoses, lipoma, nonmelanoma skin cancer (basal cell carcinoma), tinea versicolor, mild xerosis, benign cherry angioma, and verruca vulgaris (wart). The examiner noted that verruca vulgaris was removed in 2017 and resolved, basal cell carcinoma was removed in 2019 and resolved, and xerosis (dry skin) was not found on exam. The examiner provided a negative nexus opinion for every diagnosed condition. Specifically, regarding actinic keratoses, seborrheic keratoses, lipoma, mild xerosis, benign cherry angioma, and nonmelanoma skin cancer, the examiner opined the conditions were less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale was that the Veteran did not contend the conditions began in service, and a review of the literature is silent for exposure to herbicide agents as a cause of the conditions. Additionally, the Veteran’s report of “jungle rot” is unrelated to these conditions. Actinic keratoses are due to solar damage. Seborrheic keratoses are common epidermal proliferation of immature keratinocytes which usually develop after age 50. Lipomas are benign common superficial subcutaneous neoplasms consisting of mature fat cells enclosed by thin fibrous capsules. Mild xerosis is dry skin. Cherry angiomas are proliferation of capillaries common in middle age and mature adults, non-pathologic, require no treatment, and are benign. Further, the Veteran’s basal cell carcinoma was removed. The examiner also opined that verruca vulgaris (wart) was less likely than not incurred in or caused by the claimed in-service injury, event or illness because a review of the literature is silent for exposure to herbicide agents as a cause, and the Veteran’s report of “jungle rot” is unrelated to this condition. Regarding tinea versicolor, the examiner again opined against relation to service, rationalizing that the condition was diagnosed 35 years after service and dermatology notes are silent for an association between it and the Veteran’s report of “jungle rot.” The examiner indicated that she accepted as true the Veteran’s statements that the portion of the STRs related to his service abroad are lost and that while serving in Vietnam he was treated for “jungle rot.” Per literature review jungle rot commonly refers to ulcerative skin lesion. Veteran does not have ulcerative skin lesion. He describes an intermittent itchy rash. Regarding the Veteran’s statements of an ongoing skin rash, the objective evidence does not support an ongoing rash. Multiple treatment notes document no rash. At a VA dermatology appointment in October 2019 he reported a “history of jungle rot in his groin” which was not present on exam, and the assessment was “past medical history of tinea cruris (not flaring)”. This was not present at the September 2019 VA examination and is not a precise diagnosis for VA examination purposes. The examiner also noted the resolved skin conditions of record per STRs of acne, furuncle, and rubella rash. Considered in its entirety, a fair reading of this opinion is that, even considering the Veteran’s reports of a chronic rash since service, none of his diagnosed skin conditions are related to any documented in-service condition, exposure to herbicide agents, or treatment for “jungle rot.” The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the August 2020 addendum opinion was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinion is shown to have been based on a review of the Veteran’s record and is accompanied by a sufficient explanation as to why the Veteran’s diagnosed skin conditions are not related to service, to include exposure to herbicide agents. Furthermore, there is no competing medical opinion of record. The Board thus finds that the August 2020 addendum opinion is dispositive of the issue at hand. The Board acknowledges the Veteran’s arguments, through his representative, that the most recent VA examination is inadequate because, though “jungle rot” is known to affect the feet, the VA examinations have never examined his feet. Further, the representative contends the opinion was not supported by an adequate rational. See February 2021 IHP. However, as above, the Board finds the August 2020 addendum opinion to be fully supported by an adequate rationale. Further, the Veteran has never contended he had “jungle rot” in his feet during service or a current skin condition affecting the feet. Moreover, various foot examinations in file have not revealed any complaints or findings of any skin condition of his feet. See, e.g., June 2015 VA treatment records. The Veteran, through his representative, also argues that further development is needed because there has not been a determination regarding whether the Veteran has chloracne, one of the two skin conditions presumptively linked to exposure to herbicide agents. See July 2020 IHP. The Board finds further development is not needed regarding chloracne because the Veteran has not contended he has chloracne, there is no diagnosis of chloracne in any private or VA treatment records in file, and the September 2019 VA examination indicated that he did not have chloracne. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Blevins, 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.