Citation Nr: 21023214 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 11-23 952A DATE: April 20, 2021 ORDER Entitlement to service connection for a skin disability is denied. FINDINGS OF FACT 1. Any possible chrloracne during service resolved without residuals. 2. The post-service skin disability was not manifest in service and is not otherwise related to service. 3. The post service skin disability is unrelated (causation or aggravation tor a service-connected disease or injury. CONCLUSIONS OF LAW 1. A current skin disability was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. A current skin disability is not proximately due to, aggravated by, or the result of a service-connected disease or injury. 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1965 to September 1967. He had service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter in December 2016, June 2017, and February 2018 for additional development. In January 2020, the Board denied the claim for service connection for psoriasis vulgaris and rosacea. The Veteran appealed to the Court of Appeals for Veterans Claims (the Court). In December 2020 the Court granted a Joint Motion for Remand (JMR) vacating the Board’s January 2020 decision because the Board failed to provide adequate notice to the Veteran’s representative pursuant to 38 C.F.R. § 1.525 (d) when the Board requested additional records from the Veteran’s private family physician as part of the February 2018 remand instructions. The JMR and duty to assist violation will be addressed in more detail below. On January 6, 2021, the Veteran’s representative submitted a letter withdrawing his representation. However, after the Agency of Original Jurisdiction has certified an appeal to the Board, a representative may not withdraw services as a representative in the appeal unless good cause is shown on motion. See 38 C.F.R. § 20.6. As no motion has been submitted showing good cause, the representative's request to withdraw is denied. 1. Duty to assist. Initially, the Board must address a duty to assist violation identified by the parties in the December 2020 JMR that was the basis for the Court of Appeals’ vacatur of the Board’s January 2020 decision. This matter was remanded by the Board in February 2018. The Board noted that a December 2008 letter from the Veteran’s family physician had indicated the Veteran was treated from 1966 to 1985 by four different dermatologists for chronic face and scalp rash, and that the family physician determined the Veteran’s skin condition represented chloracne due to exposure to defoliants in Vietnam. The remand instructions requested from the Veteran and the Veteran’s physician records regarding treatment of his skin conditions referenced in the December 2008 letter, to obtain any necessary waivers, and to request that the private family physician state on what basis he made his statements and when he first treated the Veteran. Pursuant to 38 C.F.R. § 1.525 (d), any person holding power of attorney, a recognized attorney who has filed the requisite declaration, or the accredited representative of a recognized organization holding power of attorney shall be supplied with a copy of each notice to the claimant respecting adjudication of the claim. Following the Board’s February 2018 remand, the VA sent a notice to the Veteran dated May 3, 2018 requesting that he complete and return an enclosed form for VA to assist with obtaining the Veteran’s records. The notice was sent to the Veteran’s representative but was carbon-copied to an incorrect address. As such, the parties to the JMR agreed that VA erred in failing to provide the notice to the Veteran’s representative, and that vacatur of the Board’s January 2020 decision denying entitlement to service connection for psoriasis and rosacea and remanding for readjudication was appropriate. The parties agreed that the Board will allow the Veteran 90 days following remand by the Court, during which time the Veteran may submit the consent for release of private medical records and/or the private medical records themselves that were sought in VA’s May 3, 2018 notice. The parties also agreed that reissuance of the notice was not required. The Court granted the JMR in an order dated December 7, 2020. The Veteran and his representative were notified that the case had returned to the Board by letter dated December 21, 2020. On January 15, 2021, the Veteran submitted a form titled “Waiver of Opportunity to Submit Additional Evidence or Argument and Additional Evidence Response Form” indicating that he had no additional evidence or arguments to submit in this appeal and waiving any remaining time to submit additional evidence or argument. We note that, regardless of receipt of this form, the Veteran was thereafter provided at least 90 days to submit the requested release for private medical records or the records themselves as requested in the May 3, 2018 notice. Given the foregoing, the Board concludes that VA’s duty to assist has been satisfied and the stipulations made by the parties in the December 2020 JMR have been complied with. The Board will adjudicate the claim for service connection for a skin disability on the merits. 2. Service connection for a skin disability The Veteran seeks service connection for a skin disorder, currently diagnosed as psoriasis and rosacea. He primarily contends a current skin disorder manifested during service and is due to his presumed exposure to herbicides in Vietnam. He has also asserted the skin disorders are aggravated by service-connected disabilities, specifically type II diabetes mellitus. See, e.g., July 2016 Board Hearing Transcript. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty.38 U.S.C. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In general, to establish a right to compensation for a present disability, a Veteran 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” – the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicide agents. Service connection based on exposure to herbicide agents will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period. The diseases associated with herbicide exposure include chloracne or other acneform disease consistent with chloracne. For the presumption to apply, a qualifying skin disorder must have become manifest to a degree of 10 percent or more within one year after the date of last exposure to the herbicide. See 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309. Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury will be service-connected. 38 C.F.R. § 3.310 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). After considering the evidence, the Board concludes that service connection for a skin disability is not warranted. Service treatment records show the Veteran was treated for an abcess on his right shoulder and a furuncle on his right thigh in May 1966. He was treated for a boil on his left ankle in September 1966 and was assessed with hydradenitis. A followup records notes that the hydradenitis cleared with soaks and antibiotics, and the Veteran was released back to duty. The August 1967 separation examination showed a clinically normal evaluation of the head, face, neck, and scalp, and of the skin. The Veteran denied any history of skin diseases on the August 1967 report of medical history. There are extensive post-service treatment records from Dr. A.R.B., a private dermatologist. In May 1983 the Veteran was assessed with seborrheic dermatitis of the scalp, eyebrows, and nose, and tinea cruris of the groin area. He was assessed with sebopsoriasis of the scalp in July 1983, and psoriasis vulgaris over the arms, hands, and scalp in August 1984. He was assessed with rosacea for the first time by Dr. A.R.B. in September 2001. We note that the Veteran continued to be treated by Dr. A.R.B. until 2012. He was diagnosed with psoriasis vulgaris and rosacea the entire time. The Veteran has submitted positive nexus opinions in support of his claim. First is a December 2008 letter form Dr. R.V., the Veteran’s private family physician, wherein he determined the Veteran had chloracne which is no doubt related to his exposure to defoliants while serving in Vietnam. Second is an October 2017 letter from L.M., a nurse practitioner. L.M. examined the Veteran and diagnosed seborrheic dermatitis with components of rosacea and possible sebopsoriasis on the Veteran’s face and scalp. L.M. concluded the Veteran’s chronic inflammatory skin condition is likely attributed to exposure to Agent Orange. The Veteran was provided a VA examination in October 2018. The Veteran reported an onset of itchy and flaky scalp that progressed to become a rash on his legs while deployed in Vietnam, and that he sought treatment for the rash upon returning home from Vietnam. Current symptoms were redness on his head and neck. The examiner noted current diagnoses of psoriasis, rosacea, seborrheic dermatitis, and sebopsoriasis. The examiner also noted a history of chloracne that had resolved. The examiner determined the Veteran did experience an episode of chloracne following exposure to Agent Orange while deployed in Vietnam, as evidenced by service treatment records detailing treatments for a ‘boil’ and ‘hidradenitis’ in 1966. This episode of chloracne would have resolved many years ago, however, with the only residual skin effects being potential scarring at the sites of previous lesions. No such scars were present on examination. None of the Veteran’s currently diagnosed skin disorders included chloracne or other acneform disease consistent with chloracne. The examiner determined that the Veteran’s claimed skin disabilities were less likely than not (less than 50 percent probability) incurred in or caused by service. The examiner provided an extensive rationale, and concluded the Veteran’s currently diagnosed seborrheic dermatitis, psoriasis, sebopsoriasis, and rosacea, are not supported by the Veteran’s medical records to have been incurred in or caused by the Agent Orange exposure. Initially, we find that the preponderance of the evidence is against finding that the Veteran currently has chloracne or another skin disease consistent with chloracne. We acknowledge the December 2008 letter from Dr. R.V., in which he determined the Veteran’s skin condition represents chloracne. However, the remaining treatment records available reflect only diagnoses for psoriasis vulgaris and/or sebopsoriasis, seborrheic dermatitis, and rosacea. Most pertinently, the Veteran’s private dermatology treatment records only show psoriasis vulgaris and rosacea. The Veteran has indicated that he same dermatologist, Dr. A.R.B., treated him for many years. The psoriasis vulgaris and rosacea diagnoses from the Veteran’s dermatologist are contemporaneous to Dr. R.V.’s letter, and show the Veteran continued to be diagnosed and treated for psoriasis vulgaris and rosacea following Dr. R.V.’s letter, with no reference to chloracne. Although the 2018 VA examiner determined the Veteran had chloracne during service, he also determined the Veteran’s currently does not have chloracne. We find the contemporaneous diagnoses of psoriasis vulgaris and rosacea, made by a dermatologist and informed by many years of treatment, to be more probative than Dr. R.V.’s diagnosis of chloracne. The Veteran was given the opportunity to clarify Dr. R.V.’s reasoning behind diagnosing chloracne and his treatment history of the Veteran, and he has not done so. Psoriasis vulgaris, dermatitis, and rosacea are not recognized as disabilities associated with herbicide exposure. We note that 38 U.S.C. § 1116 (a)(2)(C) and 38 C.F.R. § 3.307 (a)(6)(ii) require chloracne or an “other acneform disease consistent with chloracne” become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent. Although the Veteran has testified that he began treatment for his skin problems soon after he separated from service, there is no probative evidence that the Veteran’s currently diagnosed skin disorders amount to an “other acneform disease consistent with chloracne.” The October 2018 VA examiner explicitly determined that none of the Veteran’s currently diagnosed skin disorders included chloracne or other acneform disease. Although there is evidence suggesting chloracne manifest within a year of the Veteran’s exposure to herbicides, he does not currently have chloracne or another acneform disease. Thus, the regulations pertaining to presumptive service connection based on exposure to herbicides are not applicable. See 38 U.S.C. §§ 1101, 1112, 1113, 1116; 38 C.F.R. §§ 3.307, 3.309. This does not preclude the Veteran from establishing service connection for a skin disorder with proof of direct causation. Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Id. at 304. Here, we accept the October 2018 VA medical opinion as probative evidence regarding whether the Veteran’s current skin disorders are related to service, to include exposure to herbicides. The examiner rendered the opinion after reviewing the claims file and interviewing the Veteran. Pertinently, the examiner provided an extensive rationale that is supported by the other evidence of record. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The examiner explained that, although the Veteran likely had chloracne during service, there was no medical record of psoriasis or rosacea during service. The examiner cited relevant medical studies supporting his conclusion that the current skin disorders were not due to service. The Board finds the December 2008 and October 2017 private nexus opinions to be of little probative value. The opinions are conclusory and unsupported by rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”). While there is no reasons-or-bases requirement imposed on nexus opinions, conclusions must be supported with an analysis that the Board can consider and weigh against contrary opinions. See Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, the December 2008 opinion relies on a diagnosis of chloracne, which the preponderance of the evidence shows the Veteran does not have. We have considered the lay statements of record. The Veteran has consistently reported that his scalp and skin problems began during service and have persisted since. At the July 2016 Board hearing he testified that his scalp condition started during his service in Vietnam and that he first started going to a dermatologist in April 1968. He also submitted lay statements from family members stating the Veteran had flaking of his scalp, face, ears, and neck and that his face was red upon returning to the United States from Vietnam. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay people are competent to testify to visible or otherwise observable symptoms of disability. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In particular, lay 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. Jandreau, 492 F.3d at 1377. However, the assertions that a current skin disorder began during service and has persisted since are contradicted by the service treatment records, which show treatments for boils and hydradenitis, which the Veteran does not currently have. The service treatment records also show these cleared up with soaks and antibiotics. The August 1967 separation examination showed the Veteran’s head, face, neck, scalp, and skin were clinically normal. The Veteran denied any history of skin diseases in the August 1967 report of medical history. We find the recent statements that the Veteran has experienced symptoms of his current skin disorders since service are less probative and far less credible than the contemporaneous medical and lay statements showing he did not have the current skin disabilities during service and at separation from service. The absence of contemporaneous medical records regarding the Veteran’s current skin disorders does not, in and of itself, render lay evidence not credible. Buchanan, 451 F.3d at 1336-7. However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Additionally, the contemporaneous medical record here is not silent. None of the Veteran’s current skin disorders were identified during service, and no skin disorder was present at separation. Rather, at separation, the skin was normal. The Veteran is also competent to report that doctors have told him his skin disorders are due to exposure to herbicides. The record reflects that at least two medical professionals have provided positive nexus opinions. However, as explained above, those positive nexus opinions are less probative than the 2018 VA nexus opinion. Regarding whether a skin disability is aggravated by a service-connected disease or injury, we note that although the Veteran has only argued that a skin disability is aggravated by his service-connected diabetes mellitus. In January 2017 a VA examiner determined that there is no objective evidence of a pathophysiologic relationship between psoriasis, rosacea, and diabetes. The examiner cited medical treatise evidence stating that the cause of rosacea and psoriasis were not known. While the examiner cited many factors causing flares of rosacea and increasing the risk of psoriasis were noted, diabetes mellitus was not included. Regarding aggravation, the examiner concluded that there was no evidence to support the Veteran’s skin conditions have been aggravated by diabetes, explaining again that there was no objective evidence of a pathophysiologic relationship between psoriasis, rosacea, and diabetes. The Board accepts the January 2017 VA opinion as probative evidence as to whether a skin disability is proximately due to or aggravated by the Veteran’s service-connected diabetes mellitus. The examiner rendered the opinion after reviewing the claims file, provided a reasoned rationale for the conclusions, and supported the conclusions with relevant medical treatise evidence. See Nieves-Rodriguez, 22 Vet. App. at 302, 304. Pertinently, there is no medical evidence of record to the contrary. The only evidence supporting a relationship are lay assertions. He is not competent to offer such a nexus opinion, as making such a connection would require specialized education, training, or experience that the Veteran does not possess, and there is no indication a medical professional has told the Veteran that a service-connected disease or injury aggravates a skin disorder. 38 C.F.R. § 3.159 (a)(2); Jandreau, 492 F.3d at 1377. In sum, there is no credible indication that a currently diagnosed skin disorder manifest during service. Although there is evidence the Veteran may have had chloracne during service, such is documented in the service treatment records to have resolved with treatment. No skin disorder was present at separation from service; the Veteran’s assertions to the contrary are less credible than the August 1967 separation examination and report of medical history. The most probative medical evidence establishes that the Veteran’s current skin disorders are not due to exposure to herbicides. The only probative evidence shows a skin disorder is not due to or aggravated by service-connected diabetes mellitus. The preponderance of the evidence is against the claim for service connection for a skin disability. The benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.