Citation Nr: 21029829 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-45 655 Date: May 17, 2021 ORDER Entitlement to service connection for a skin condition is denied. FINDING OF FACT The weight of the medical and other evidence of record is against finding that the Veteran has a diagnosis of a skin condition, claimed as chloracne, which onset during his service or is otherwise related or attributable to his service, including to exposure to an herbicide (specifically, the dioxin in Agent Orange) while in Vietnam. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for a skin condition, including for chloracne. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1964 to February 1967, including in Vietnam. This appeal to the Board of Veterans' Appeals (Board) is from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for chloracne, specifically. In February 2019, the Board also denied service connection for chloracne, specifically, concluding the Veteran did not have this diagnosis. He appealed the Board's decision to the U. S. Court of Appeals for Veterans Claims (Court/CAVC). In February 2020, pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated the Board's decision denying this claim and remanded it back to the Board for further development and readjudication in compliance with agreement in the JMPR. In July 2020, the Board recharacterized the claim as for a skin condition more generally so not just for chloracne, specifically, to ensure consideration of all possible skin conditions. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). However, rather than immediately readjudicating the claim, the Board instead remanded it back to the RO (Agency of Original Jurisdiction (AOJ)) for a needed medical opinion because there was conflicting medical evidence concerning the nature and etiology of the Veteran's claimed skin condition particularly when comparing a May 2012 report from a chiropractor versus the contrary findings of a VA compensation examiner that had evaluated the Veteran in January 2013. There since has been the required compliance certainly acceptable substantial compliance, with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for a skin condition The Veteran contends he has a skin condition because of his military service, especially from exposure to herbicides while stationed in Vietnam. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or a disease incurred or aggravated during active military service in the line of duty. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) evidence of a correlation ("nexus") between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection also be may granted for any disability diagnosed after discharge from service if the evidence, including that pertinent to service, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d). As well, pursuant to VA regulations, service connection may be established on a presumptive basis for chloracne or other acneform disease if a Veteran was exposed to an herbicide agent during his service including to the dioxin in Agent Orange. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a), 3.309(e). Moreover, for any Veteran that served in Vietnam or at another location where Agent Orange was used or maintained, it is presumed he was exposed to it. Here, there is no disputing the Veteran served in Vietnam during the Vietnam War, so it is presumed he was exposed to herbicides (Agent Orange) while there. However, the preponderance of the evidence is against finding that the Veteran has chloracne or other acneform disease, so there is no basis for finding entitlement to presumptive service connection. As the Board indicated when remanding this claim in July 2020, he submitted a May 2012 report from a chiropractor stating the Veteran had reported having dermatosis in his groin region since Vietnam. This chiropractor noted the Veteran reported frequent exacerbations of the condition and concluded he had a diagnosis of chloracne and that it was more likely than not related to exposure to Agent Orange during his military service. But the Board pointed out the chiropractor was not competent to diagnose chloracne since a chiropractor generally is not qualified through education, training, or experience to diagnose skin conditions, although competent to report on what he had observed personally (patches in the Veteran's groin area). See 38 C.F.R. § 3.159(a)(1) ("Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinion"). Also, in contrast, a VA compensation examiner conversely had determined in January 2013 that the Veteran does not have chloracne or any other skin condition, and that contrary opinion was based on a review of the claims file and an examination of the Veteran's skin. Therefore, because of this conflicting evidence, the Board remanded this claim back to the RO in July 2020 for further medical comment concerning this, including to resolve or reconcile those competing opinions. On remand, a February 2021 VA examiner determined that it is less likely than not the Veteran has a skin condition of any sort owing to exposure to Agent Orange while stationed in Vietnam. This VA examiner pointed out that, according to a study article by Patterson, Kaffenberger, Keller & Elston (2016), there are two skin conditions, chloracne and porphyria cutanea tarda, which may be related to exposure to Agent Orange during the Vietnam War, and this VA examiner did not believe either of these diagnoses is warranted. The most probative evidence of record resultantly indicates the Veteran does not have chloracne or other acneform disease that may be presumptively associated with his presumed exposure to Agent Orange in Vietnam. Nevertheless, in this circumstance, the Veteran still may establish his entitlement to service connection by showing direct causation, i.e., with probative evidence directly linking his skin condition to his service and particularly to his presumed exposure to herbicides (including the dioxin in Agent Orange) while in Vietnam. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which, instead, concerned exposure to radiation, are equally applicable in cases involving Agent Orange exposure to establish direct causation). The February 2021 VA examiner observed the Veteran has a history of basal cell carcinoma (BCC), squamous cell carcinoma (SCC), actinic keratosis, seborrheic keratosis, keratosis dermatitis, nevi, lentigines, pedunculated papillomas, cherry & violaceous papules, and that the current examination shows actinic keratosis, seborrheic keratosis, keratosis dermatitis, nevi, lentigines, pedunculated papillomas, cherry & violaceous papules warm dry intact skin. Ultimately, however, even as concerning these several other diagnoses, this VA examiner opined that it is less likely than not that any is related or attributable to the Veteran's service, so including to his presumed exposure to Agent Orange in Vietnam. This VA examiner reasoned that there is no chronic diagnosis of a skin condition that was documented while in the service. Furthermore, these skin conditions are not related to herbicide exposure as there are only two noted skin conditions that are chloracne and porphyria cutanea tarda, and the Veteran does not have either. This VA examiner consequently concluded that a nexus has not been established between any of the Veterans' current skin disorders and his service, either directly or presumptively. The Veteran is not competent to say his skin disorder regardless of the specific diagnosis, is the result of his service, including owing to his presumed exposure to Agent Orange in Vietnam. This type of determination is beyond the realm of his lay competence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). And, for the reasons and bases already discussed, the Board also does not find the May 2012 statement from the Veteran's chiropractor to be probative evidence (i.e., competent and credible indication) the Veteran has chloracne or other acneform disease, so a skin disorder that is presumptively associated with exposure to Agent Orange. Rather, the Board considers more probative and, therefore, more persuasive the contrary VA medical opinions that were provided in January 2013 and more recently in February 2021, on remand. The Board may favor one medical opinion over another if it offers an adequate statement of reasons or bases. See D'Aries v. Peake, 22 Vet. App. 97, 107 (2008). For a medical examination and consequent opinion to be considered adequate, they must consider all the relevant evidence of record, including lay statements and any pertinent other evidence in the Veteran's claims file, although mere review of the claims file is not determinative of the probative value of a medical opinion since, as an example, the Veteran may be a credible historian in recounting his relevant history. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Coburn v. Nicholson, 19 Vet. App. 427 (2006). The opinion also must be supported by explanatory rationale; indeed, most of the probative value of an opinion comes from discussion of its underlying reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, to this end, the Board has considered the Veteran's representative's request to remand the claim for a medical opinion adequately evaluating the Veteran and reconciling the favorable, private opinion of record from the chiropractor. But the Board already did this development by remanding the claim in July 2020, and the additional VA medical opinion since obtained in February 2021 is thorough and provides a sound basis upon which to decide this claim, including in terms of addressing whether the Veteran has any skin disorder attributable to his service. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In ultimately concluding that the Veteran does not, this additional VA examiner considered the relevant history, solicited information regarding the Veteran's activities in service and since, and provided the required explanation (rationale) for the opinion as support for the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Notably, in this regard, the February 2021 VA examiner reviewed and cited all the skin conditions diagnosed in the available medical records, including VA treatment records. The VA examiner also cited to medical literature to substantiate the conclusion that the skin conditions the Veteran has are unrelated to his service, including to his presumed exposure to Agent Orange in Vietnam. Thus, as the preponderance of the evidence weighs against the claim, there is no reasonable doubt to resolve in the Veteran's favor, and his claim for service connection for a skin condition must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hamm, 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.