Citation Nr: 21022073 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-63 397 DATE: April 14, 2021 REMANDED Entitlement to service connection for a skin disability, to include porphyria cutanea tarda (PCT), to include as due to herbicide agent exposure and/or other chemical agents, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 1974 to February 1976, to include service abord USS Lexington. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 1996 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the claims file. Entitlement to service connection for a skin disability. The Veteran contends that his diagnosed skin disability is due to exposure to herbicide agents and/or chemical agents, to include trichloroethylene (TCE), while he served in the Navy on USS Lexington in at least the Territorial Waters off the shores of Vietnam. See Hearing Transcript (February 2021). The Veteran also contends that he has been complaining to VA about blisters since 1980. See VA 21-4138 Statement In Support of Claim (April 2017). He detailed that TCE was used on hot walkways to cut the grease daily without masks or gloves, and that he was only exposed to the sun and chemicals in the Navy. Id. At his hearing, he stated that he worked in AG-5, which was the resting gear department, where the planes come in for a landing and hit the cable. See Hearing Transcript (February 2021). To ensure that VA has met its duty to assist, remand is necessary. 38 C.F.R. § 3.159(c). Initially, the Board notes that the Veteran has a diagnosis of porphyria cutanea tarda (PCT), as shown in a December 2016 VA treatment note. See CAPRI (October 2017). The Veteran’s service treatment records (STRs) show notations pertaining to skin. Specifically, a September 1974 STR indicates rash on neck and acne. See STR-Medical (May 1985). Separation physical conducted in February 1976 shows normal skin and lymphatics. Id. The Board observes that PCT is listed as a disease associated with exposure to certain herbicide agents in 38 C.F.R. § 3.309(e). With regard to the Veteran’s reported in-service exposures as the cause of his skin disability, to include PCT, because PCT is listed as a disease associated with exposure to certain herbicide agents in 38 C.F.R. § 3.309(e), the Veteran can rely on the presumptive provisions of 38 C.F.R. § 3.307(a)(6) to substantiate his claim. Thus, if exposure is established, the presumptive provisions for the diseases listed in 38 C.F.R. § 3.309(e), including PCT, become applicable. Even if presumptive provisions are not for application, service connection may still be established on direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir.1994). See also, Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the rating board cannot substitute its own medical judgment for that of medical professionals). In this case, the Veteran’s service personnel records (SPRs) show that he served aboard the USS Lexington (CVT-16) during his service between December 1974 and February 1976. See STR-Medical (May 2017). The Veteran’s military occupational specialty (MOS) was that of an Aviation Boatswains Mate. See Military Personnel Record (May 2017). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38C.F.R. §3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961 and ending on May 7, 1975, in all other cases. 38U.S.C. §101(29)(A). Service in the Republic of Vietnam is “service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.” 38C.F.R. §3.307(a)(6)(iii). The phrase “service in the Republic of Vietnam” includes the 12-nautical-mile territorial waters of the Republic of Vietnam. 38 U.S.C. §116A(d). Given the above, the Board finds that the Veteran’s claim should be referred to the Joint Services Records Research Center (JSRRC) to attempt to corroborate the Veteran’s claimed exposure, including to herbicide agents in the offshore water of the Republic of Vietnam and to other chemical agents, to include TCE. On remand, the AOJ should conduct all necessary development to verify the Veteran’s alleged herbicide exposure and TCE exposure, to include whether the USS Lexington operated in the territorial seas of the Republic of Vietnam during the Veteran’s service. Additionally, the Board finds that there is sufficient evidence of record to trigger VA’s duty to obtain VA examination and opinion. See Locklear v. Nicholson, 20 Vet. App. 410, 419 (2006). McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The threshold is low for triggering this duty to assist. It is noted that, while the Veteran’s VA treating physician, Dr. D. I., MD, has stated, in August 2018, that his PCT is secondary to exposure during his service, this opinion was based on the assumption that the Veteran was exposed to herbicides or other chemical agents during his service. However, it has not yet been established that the Veteran has been exposed to herbicides or other chemical agents, including TCE. Dr. D. I. concluded that the Veteran was exposed while on active duty based simply on the Veteran’s self-reported history, and a medical evaluation that is merely a recitation of a Veteran’s self-reported and unsubstantiated history has no probative value. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999); Swann v. Brown, 5 Vet. App. 229 (1993); Godfrey v. Brown, 8 Vet. App. 113 (1995). Also, with regard to the articles the Veteran submitted concerning the TCE and another regarding PCT, “Trichloroethylene” by Maureen B. Poh-Fitzpatrick, MD, and “Porphyria Cutanea Tarda” by Dirk M. Elston, MD, both articles provide general overview of TCE and PCT, respectively, without any indication of how either relate to the Veteran’s skin disability and his service. Nonetheless, this evidence is sufficient to trigger VA’s duty to obtain an examination and medical opinion. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. Accordingly, the matters are REMANDED for the following action: 1. Attempt to verify the Veteran’s asserted in-service exposure to herbicide agents or other chemical agents through official sources to include the JSRRC, National Archives and Records Administration (NARA), or other appropriate repository, and request the deck logs and/or command histories as appropriate for each ship the Veteran is determined to have been present aboard during Vietnam War service, including all movements and operations conducted, to verify whether the Veteran’s service included any presence within the 12-nautical mile territorial sea of the Republic of Vietnam. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure to herbicide and/or chemical agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify him of VA’s inability to verify the in-service herbicide and/or chemical agent exposure. 2. Obtain the Veteran’s VA treatment records for the period from September 2018 to the Present. 3. ONLY IF HERBICIDE EXPOSURE IS NOT CONCEDED BY VA, obtain a VA medical opinion from an appropriate medical professional to determine the nature and etiology of his skin disability, to include PCT. Address whether it at least as likely as not (50 percent or greater probability) (a) had its onset in service, (b) manifested within one year after service, or (c) is otherwise etiologically related to in-service injury or disease to include documented in-service findings involving rash on skin and acne, and reported exposure to chemical agents, other than herbicide agents. The opinion should: (a.) reflect consideration of the STRs showing rash on skin and acne, and discuss what, if any, relationship exists between those in-service reports and the subsequent development of skin disability, now diagnosed as PCT, if any. (b.) Address the article entitled “Trichloroethylene” and “Porphyria Cutanea Tarda” by Maureen B. Poh-Fitzpatrick, MD, and Dirk M. Elston, MD. 4. Ensure that any VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.