Citation Nr: 21026606 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 14-37 136 DATE: May 3, 2021 ORDER Service connection for a skin disorder (other than tinea pedis, tinea manum, and poikiloderma of civatte) to include as a result of exposure to ionizing radiation, chemical exposure, or sun exposure, is denied. FINDING OF FACT The Veteran's current skin disorder (other than tinea pedis, tinea manum, and poikiloderma of civatte) was not incurred in or aggravated by active duty service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a skin disorder, other than tinea pedis, tinea manum, and poikiloderma of civatte, to include as a result of exposure to ionizing radiation, chemical exposure, or sun exposure have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service with the United States Army from August 1959 to August 1962. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. In February 2020 and October 2020, the Board remanded the case for further development. The issue has returned to the Board for further appellate consideration. By way of history, in October 2018, the Board, in pertinent part, denied the matter for further development. In November 2018, the Veteran filed a Motion to Vacate the Board's October 2018 decision. On April 25, 2019, the Board received the Veteran's request to withdraw the Motion to Vacate. On April 30, 2019, the Board dismissed the Motion to Vacate. Thereafter, the Veteran appealed the Board's October 2018 decision as to the instant issue on appeal to the United States Court of Appeals for Veterans Claims (Court). In September 2019, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Partial Remand (JMPR) and requested that the Court vacate the portion of the Board's decision that denied entitlement to service connection for a skin disorder, other than tinea pedis, tinea manum, and poikiloderma of civatte, to include as a result of exposure to ionizing radiation, chemical exposure, or sun exposure, and to remand the matter for further development. In an October 2019 Order, the Court vacated the Board's October 2018 decision of entitlement to service connection for a skin disorder, other than tinea pedis, tinea manum, and poikiloderma of civatte, to include as a result of exposure to ionizing radiation, chemical exposure, or sun exposure, and remanded the matter for further consideration and instructions consistent with the JMPR. 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). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Also, 38 U.S.C. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, '[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.' Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Finally, when 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; 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, other than tinea pedis, tinea manum, and poikiloderma of civatte, to include as a result of exposure to ionizing radiation, chemical exposure, or sun exposure, is denied The Veteran contends that he is entitled to service connection for a skin disorder, other than tinea pedis, tinea manum, and poikiloderma of civatte, to include as a result of exposure to ionizing radiation, chemical exposure, or sun exposure (hereinafter "a skin disorder"). During the July 2017 hearing, the Veteran reported first experiencing lesions and blisters on his skin while serving in Arizona in the Nuclear Survival Company. Military personnel records indicate an assignment to a Nuclear Survival Company (6470) in February 1960. The Board notes that the Veteran's service treatment records do not reflect that the Veteran had a skin condition upon entry into active service. The Veteran's July 1962 separation examination is silent with respect to a skin condition. On VA examination in October 1994, the examiner assessed an eruption on the Veteran's central chest and neck. The Veteran reported that he experienced occasional papules on his chest and used cream on the area without improvement. He stated that, while in the service in 1960, he was stationed at Fort Huachuca in Arizona, where he developed the eruption on the central aspect of the chest. Topical treatment was given at the time for irritation. The Veteran reported the eruption was exacerbated by exposure to the sun. When exposed, he experienced burning and discomfort, which also occurred when the area was moist with sweat. The examiner noted that the Veteran's hands were slightly hyperkeratotic and minimally scaled. His chest demonstrated broken irregular macules and telangiectasia in a V distribution. The Veteran's neck was also brown with telangiectasia and irregular brown macules. The examiner diagnosed the Veteran with actinic dermatosis of the chest due to sun exposure. The examiner did not provide a nexus opinion. VA treatment records indicate a history of treatment for multiple skin conditions. In September 2009, the Veteran experienced multiple keratotic papules on his back, face, scalp, and arms. An August 2012 private Disability Benefits Questionnaire (DBQ) shows a diagnosis of actinic keratosis and seborrheic keratosis in 2011. The August 2012 private physician did not provide a nexus opinion as to these diagnosed skin conditions. In a September 2012 statement, a private family physician reported that the Veteran was in contact with caustic chemicals, including gasoline, cutting oils, acetone, and cleaning fluids, as well as potentially exposed to radiation in service. The physician stated that such chemicals and radiation can cause a skin condition. The September 2012 opinion is of no probative value, as the private physician simply reports that exposure to certain chemicals and radiation can cause a skin condition. In an August 2013 statement, the Veteran's private dermatologist stated: "after reviewing the patient's service records as well as speaking to the patient, it is my opinion that his diagnosis of Actinic Damage may have been worsened by his time in Military Service due to his excessive amount [of] sun exposure." The Board places limited probative value on this opinion, as medical opinions expressed in terms of "may" or "could be" are too speculative to be of probative value. See e.g., Warrant v. Brown, 6 Vet. App. 4, 6, (1993) (finding physician's statement that the Veteran's psychiatric disorder "could have been" caused by active service was too speculative); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (stating that a medical opinion expressed in terms of "may" also implies "may not," and is too speculative. Furthermore, no rationale is provided, nor is detail afforded to distinguish in-service sun exposure and post-service sun exposure. Thus, the Board finds the August 2013 private opinion to be inadequate. On VA examination in September 2014, the Veteran reported painful seborrheic keratosis. The examiner, a dermatologist, noted that the Veteran had Fitzpatrick Type III skin. At the time of the examination, the Veteran did not have actinic keratoses or evidence of skin cancer on his face, trunk or arms, but he did have pink telangiectatic skin on the upper chest likely from actinic damage in the V of the neck. The examiner noted many seborrheic keratoses on the face and trunk with some hypopigmented scars from treatment. The examiner relayed the history provided by the Veteran and considered his description of his in-service sun exposure. The examiner concluded that the Veteran's history did not support excessive sun exposure. Further, the examiner stated that his seborrheic keratoses had no relationship to actinic damage, and attributed his condition to age, rather than service. On VA examination in March 2016, the examiner, another dermatologist, concluded that seborrheic keratosis was not associated with sun and/or chemical or radiation exposure; however, no rationale was provided for this opinion. In May 2016, the examiner provided an addendum opinion, stating that it was less likely than not that any of the skin conditions reported were associated or caused by the Veteran's in-service exposure to chemicals or radiations, as the conditions are common dermatologic conditions and not associated with radiation or chemical exposure. In a subsequent October 2016 addendum opinion, the examiner stated that seborrheic dermatitis and seborrheic keratosis were two separate diagnostic entities. Additionally, neither of those conditions was mentioned in the Veteran's service treatment records, to the examiner's knowledge. Seborrheic dermatitis may start at a younger age, but seborrheic keratoses usually starts at a later age. As the examiner could not ascertain whether any of these conditions were present during the Veteran's service, and the conditions generally start later in life, he concluded that it was less likely that these conditions began or first manifested during the Veteran's period of military service. In March 2018, a specialist's opinion was obtained regarding the nature and etiology of any non-service-connected skin conditions with which the Veteran was presently diagnosed. The dermatologist reviewed the entire record, including both medical and lay evidence. First, she determined that the Veteran's present diagnoses were as follows: seborrheic keratosis, poikiloderma of civatte, dermatitis and seborrheic dermatitis of the face, folliculitis of the back, tinea manum, tinea pedis, pruritus, and actinic damage (also known as chronic sun damage). The dermatologist concluded that it was not likely or probable that the Veteran's non-service-connected diagnosis of seborrheic keratosis was related to radiation, chemical, or sun exposure. The dermatologist explained that seborrheic keratoses are common, acquired, benign growths that occur in a variety of skin types, including Fitzpatrick Skin type III. These occur over time and with increasing age and occur in sun-exposed and non-sun-exposed skin. They are not related to chemical exposures or radiation commonly. Therefore, it was not likely that this diagnosis was related to the Veteran's active duty service. As the Veteran was already service connected for poikiloderma of civatte, tinea manum and tinea pedis, the dermatologist did not address these conditions. The dermatologist further concluded that the folliculitis of the back was not likely and not probably related to radiation, chemicals, or sun exposure. Folliculitis is inflammation of the hair follicle and occurs in many individuals for many reasons, including sweating. The Veteran's folliculitis appeared later in his records and was not probably or likely related to military service. Dermatitis and seborrheic dermatitis of the face is also a common skin condition not related to chemicals, radiation, or sun exposure, and occurs in many individuals. As such, these diagnoses were not likely or probably related to his military service. The pruritus diagnosed was nonspecific, and the dermatologist could not relate the condition to any military service or exposure directly. The dermatologist further reported that actinic damage is actually a term for chronic sun damage, which can be expected in an older individual with Fitzpatrick skin type III. According to the dermatologist, this actinic damage more likely reflected what is to be expected in the course of daily existence in an elderly individual, and was not as likely incurred or related to the short duration of exposure to radiation, chemicals, or the sun in service. Additionally, the dermatologist noted that the Veteran had no documented skin cancers or poor outcomes from chronic sun exposure. The dermatologist reviewed both the Veteran's military and civilian records. She noted the statement from the family practitioner that chemical and radiation [can] cause skin conditions. The dermatologist pointed out that this statement was overly vague and did not pertain to the Veteran specifically. The dermatologist also concluded that there was no clear and unmistakable evidence that any skin disorder preexisted military service. Fitzpatrick Type III skin is a classification/grading scale of a patient's tendency toward burning and tanning. It is not a condition in and of itself, but instead a description of a patient's inherent skin tendencies toward burning and tanning. The dermatologist continued by indicating that Type III skin sometimes burns in the sun and sometimes tans with some risk for skin cancer. A person cannot change skin types, and no experience or exposure can change this inherent grading scale, which is influenced by genetics and melanin. Fitzpatrick skin types range from 1 to 6. Thus, the Veteran's Fitzpatrick skin type III preexisted military service, as it is simply a description of the Veteran's tendency to burn or tan. The Veteran has no documented skin cancers and only benign and precancerous skin lesions on a review on his records; therefore, there was no documented inherent worsening or aggravation of his skin type during active duty service. Additionally, there was no clear or unmistakable evidence that the Veteran's other diagnoses were worsened beyond the natural progression of disease by active duty service. The opinion was rendered after review of the Veteran's records, which did not include any of the above conditions until more recently in his medical history. Thus, the dermatologist concluded that, based on available medical records during military service and both civilian and VA medical records, there does not appear to be any preexisting skin disorder aggravated by active duty service. Pursuant to the Court's directives in the September 2019 JMPR, a VA addendum opinion of a dermatologist was obtained in December 2020 to clarify the March 2018 specialist's opinion. Specifically, the Court cited the portion of the March 2018 opinion in which the specialist stated that seborrheic keratoses are "not related to chemical exposures nor radiation commonly." The Court indicated that clarification was needed as to the specialist's qualifying phrase of "commonly," as this appeared as acknowledgement that seborrheic keratoses could be related to chemical or radiation exposures. The December 2020 dermatologist clarified by stating that seborrheic keratoses are common benign growths in adults. Their occurrence is nearly universal, and there is great human variation in the number and appearance of these seborrheic keratoses. The dermatologist explained that their precise cause is not known. She further stated that there is no evidence that she has gathered from her clinical experience [in dermatology] or in the medical literature that these benign growths are the result of military duty, exposure to ionizing radiation, ultraviolet radiation or chemical exposure; thus, clarifying that the usage of the word "commonly" in the March 2018 specialist's opinion was not an acknowledgment that seborrheic keratoses could be related to chemical or radiation exposures, and that such skin conditions are not caused by chemical or radiation exposures. Based on the evidence discussed above, the Board finds that the claimed disability on appeal did not manifest during, or is the result of, active military service. As previously stated, the September 2012 and August 2013 private opinions are inadequate, as the former does not provide a definitive conclusion and the latter is speculative. All of the VA opinions from various dermatologists, including a specialist, conclude that the Veteran's skin condition is not related to chemical or radiation exposure, and attribute the condition to his age. All such opinions were supported by detailed rationale and a thorough review of the Veteran's claims file. The Board notes that although the Veteran believes that his current skin disorders are related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis or etiology). In this regard, the diagnosis and etiology of a skin disorder is a matter not capable of lay observation and requires medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of his current skin disorders is not competent medical evidence. As discussed above, competent medical evidence of record determined that the etiology of the Veteran's skin disorders is unrelated to his service, including his in-service exposures. (CONTINUED ON NEXT PAGE) Accordingly, the preponderance of the evidence is against the claim currently on appeal. The benefit-of the-doubt doctrine is therefore not applicable, and the Veteran's claim of entitlement to service connection for a skin disorder, other than tinea pedis, tinea manum, and poikiloderma of civatte, to include as a result of exposure to ionizing radiation, chemical exposure, or sun exposure, must be denied. See 38. U.S.C. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.