Citation Nr: 21039795 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 13-18 768A DATE: July 1, 2021 ORDER Entitlement to service connection, to include on a presumptive basis, for a skin disability is denied. FINDING OF FACT The Veteran's skin disability did not originate in service or until years thereafter and is not otherwise etiologically related to service, to include on a presumptive basis. CONCLUSION OF LAW The criteria for entitlement to service connection for a skin disability, to include on a presumptive basis as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to April 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim for entitlement to service connection for a skin disability was originally denied by the RO in March 2007. In January 2018, the Board determined that new and material evidence had been submitted to warrant reopening the claim and the Board remanded the reopened claim for additional development. The Board notes that entitlement to an earlier effective date for the grant of service connection for coronary artery disease was also remanded in January 2018 for the issuance of a statement of the case (SOC) by the RO. The RO issued the SOC, however, the Veteran did not file a VA Form 9, substantive appeal. Accordingly, entitlement to an earlier effective date for the grant of service connection for coronary artery disease is no longer on appeal and is not before the Board. A review of the claims file shows that there has been substantial compliance with the Board's prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a skin disability. The Veteran contends that he has a skin disability that is related to a 1973 rash that he suffered during service and, in the alternative, it is related to his exposure to herbicides in the Republic of Vietnam. Factual Background An April 1968 report of medical history made at the time of the Veteran's induction into active duty service notes that he was positive for skin disease although there is no indication where or for how long the skin disease manifested. A contemporaneous April 1968 report of medical examination notes a normal skin evaluation. A July 1970 report of medical history noted that the Veteran did not have skin disease. July 1970 and May 1971 reports of medical examinations indicated that the Veteran's skin was normal. A January 1973 service treatment record indicates that the Veteran had a rash on his face and a January 1973 Medical Recommendation for Flying Duty grounded the Veteran because of a physical disqualification due to the rash. A subsequent January 1973 Medical Recommendation for Flying Duty noted that the estimated duration of incapacity to fly was 3 to 5 days and that the Veteran was determined physically qualified for flying duty agin. A March 1973 report of medical history notes that the Veteran did not have skin disease and a March 1973 report of medical examination indicates that evaluation of the Veteran's skin was normal. An August 2005 private emergency department record indicates that the Veteran was seen for chief complaints of coughing, vomiting, and body aches and that he also had a rash. A November 2005 VA treatment record notes diagnostic impressions of rectal bleed and rash. November 2006 and March 2007 VA treatment records note that the Veteran's skin was normal with no rash. An undated Social Security Administration (SSA) Form 3368 (Disability Report Adult) notes that the Veteran reported that PTSD, depression, severe sinus problems, inner ear problems, anal fissure, emphysema, heart problems, and arthritis in his back, hand, and leg limited his ability to work. An October 2006 disability determination noted that the Veteran's disability began in April 2006 and that his primary diagnosis was "anxiety disorders" and his secondary diagnosis was "affective disorders." A November 2006 confidential consultative examination, contained in the Veteran's SSA records, notes chief complaints of severe depression, anxiety, and rectal pain. The SSA examiner further relied on VA treatment records and noted that VA records indicated diagnoses of major depressive disorder, anxiety, low back pain, coronary artery disease, constipation, hypertension, lung nodules, anal fissure, hyperlipidemia, allergic rhinitis, chronic sinusitis, gastroesophageal reflux disease, and benign prostatic hypertrophy. During the SSA examination, the Veteran again alleged that he had PTSD, depression, anal fissure, emphysema, arthritis, sinus and inner ear problems, heart trouble, and hypertension. He denied rash, itching, or bruising easily. The SSA examiner noted that his skin was warm, dry, with good turgor, and without abnormal pigmentation, rash, or other lesions. The Veteran was afforded a general medical examination by VA in March 2007. The VA examiner noted that the Veteran had skin symptoms and a history of psoriasis or eczema and documented a diagnosis of eczema. The Veteran reported that he had a rash on his face and scalp in 1973 and intermittently since returning from Vietnam. The Veteran did not use anything to treat it and the rash usually resolved on its own. The VA examiner specifically noted that there was no acne nor chloracne. The VA examiner noted symptoms of discoloration to the left side of the Veteran's face, beard, hairline, and scalp with flakiness. A May 2007 VA treatment record notes that the Veteran did not have any impairment of sensory perception but did occasionally have moist skin. The Veteran was afforded another general medical examination by VA in March 2009. The March 2009 VA examiner noted that the Veteran had a well-healed appendectomy scar on his abdomen and that his skin was otherwise normal. A June 2010 VA treatment record notes that the Veteran's skin was usually dry and that he only needed to change his linens at routine intervals. A November 2010 VA hospital admission record notes that the Veteran did not have a rash. November 2010 skin assessments note that the Veteran's skin color was normal and that his skin was warm and dry with turgor within normal limits and no wounds, pressure ulcers, or other skin problems. An August 2011 VA treatment record again notes that the Veteran's skin was usually dry and that he only needed to change his linens at routine intervals. An October 2016 VA treatment record notes that the Veteran had a rash and skin peeling with no itching to his hands bilaterally that began in September 2016 and for which he was prescribed medication. Another October 2016 VA treatment record notes that the Veteran complained of a cough and a skin rash. He reported that he had dry skin on both hands that had been peeling off for two weeks. He explained that the rash began approximately 3 weeks prior and then turned to a burning and biting feeling. The rash looked like small spots of skin peeling. He denied any exposure to chemicals or cleaning solutions and denied any contact with bushes. Contact dermatitis was suspected. Another October 2016 VA treatment record references the Veteran's emergency department visit for his rash on his hands and notes that his primary care provider gave him a cream to clear the rash. A December 2016 VA treatment record notes that the Veteran's rash cleared with the use of a prescription medication. A February 2018 VA treatment record notes that the Veteran did not have any rash, ulcers, or lesions. A May 2018 VA treatment record notes that the Veteran had two sebaceous cysts, one on his posterior neck and the other on his right back that had been then there for years. The Veteran had the cyst on the right back excised in May 2018 and the cyst on the posterior neck excised in June 2018. The Veteran was afforded an in-person VA examination in January 2019. The January 2019 VA examiner noted a diagnosis of sebaceous cyst diagnosed in 2018. The VA examiner noted that the date of onset was in 1978 and that the cyst was gradual but was now resolved after surgical excision. The VA examiner determined that the Veteran's claimed skin condition was less likely than not related to service. The VA examiner explained that the Veteran's skin disability started after he left service and that he recently had the lesion excised in 2018. Multiple July 2019 VA treatment records note that the Veteran did not have a skin rash and his skin was warm, dry, with integrity maintained. An August 2020 VA treatment record notes that the Veteran's skin was warm and dry with no lesions or discoloration. A September 2020 VA treatment record notes that the Veteran did not have a rash, ulcers, lesions, or changes in skin color. The Veteran was afforded an in-person VA examination in January 2021. Notably, in the evidence comments the VA examiner stated that records were silent for any skin condition while in service from 1968 to 1973. The VA examiner stated, "[a]fter thorough review of the claims file I was unable to locate records from January or March 1973 indicating the Veteran was diagnosed with a skin rash or any exposure to herbicide agents while in service." The VA examiner noted a diagnosis of dermatitis diagnosed in 2020 and dermatophytosis (i.e. tinea cruris) diagnosed in 2019. The Veteran had discoloration and flaky skin noted to his scalp, the right and left side of his face, and behind both ears. He reported that while service on active duty he began to experience skin problems to the face, scalp, and behind both ears. The Veteran explained that the skin condition would come and go. However, he denied treatment for the skin condition. He also reported itchiness to his groin area that began in the 1970s and which flared up approximately four times a month. The Veteran stated that he was treated for the condition with an unknown medication. However, the condition reoccurred. The VA examiner noted that the Veteran had been treated for tinea cruris with medication in the past 12 months although the Veteran could not recall what medication had been prescribed. The VA examiner determined that the claimed disability was less likely than not related to service. The VA examiner stated that records were silent for any skin condition while the Veteran was in service from 1968 to 1973. The VA examiner also explained that although physical examination of the Veteran did show discoloration and skin flaking to both sides of the face, scalp, and behind bother ears, there was no objective evidence located in the claims file indicating that the Veteran had been seen, treated, or diagnosed for those findings. The VA examiner concluded that a "nexus has not been established." An addendum VA opinion was obtained in February 2021. The February 2021 VA examiner noted that a March 1973 service treatment record showed that the Veteran had a fungal rash on his face and that his separation examination noted a rash as a historical diagnosis. The VA examiner noted that post-service treatment records were silent for reports of a chronic facial or scalp rash. The February 2021 VA examiner determined that the 2007 VA examiner's diagnosis of eczema was not supported by the evidence and that the Veteran's lay statements were not support by the evidence. The February 2021 VA examiner stated, "Surely if complaints were as troubling as noted in the Disability Benefits Questionnaires, the Veteran would have reported them, yet there are none." The VA examiner determined that no nexus existed between the Veteran's active duty service and his facial rash because there was no chronic diagnosis. The VA examiner explained that medical literature did not support a nexus between an acute fungal rash and Agent Orange exposure. Another addendum VA opinion was obtained in March 2021. The March 2021 VA examiner again explained that medical literature did not support a nexus between a fungal rash, such as tinea pedis, and Agent Orange exposure. The VA examiner stated that dioxin, a contaminant in Agent Orange, does not cause fungal infections. The VA examiner cited to the October 2016 VA treatment record, which documented peeling skin on the Veteran's hands, and noted that there was no chronicity of a hand condition documented in the record. The VA examiner further stated that there was no diagnosis of dermatitis noted in available treatment notes and that the Veteran did not represent such. The VA examiner then stated that no medical literature showed a nexus between Agent Orange exposure and dermatitis so, even if dermatitis was diagnosed, no nexus would exist still. An April 2021 VA treatment record notes that the Veteran complained of a rash in his groin area that would come and go. The treating VA provider noted that the Veteran had a hyperpigmented rash over the scrotum and both upper, inner thighs. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). In this case, exposure to herbicides as been conceded. The Veteran, based on his service, is presumed to have been exposed. VA laws and regulations provide that if a Veteran was exposed to herbicides during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32, 395-32, 407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21, 260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). During the appeal period, diagnoses of dermatitis, dermatophytosis (i.e. tinus cruris), and sebaceous cysts have been noted. The Board acknowledges a prior diagnosis of eczema in 2007. However, no evidence indicates that the Veteran had eczema during the current appeal period. Therefore, the first element of service connection has been met. Further, as noted above, the Veteran experienced a rash in service and was also exposed to herbicides. As such, the second element of service connection has also been met. The question before the Board is therefore whether any of the Veteran's skin disabilities are directly or presumptively related to his active duty service, to include exposure to herbicides while stationed in Vietnam. At the outset, the Board notes that 38 C.F.R. § 3.309(e) specifically lists those diseases covered by the provision, and the list does not include dermatitis, dermatophytosis, or sebaceous cysts. Chloracne is listed as a disease for which presumptive service connection applies. However, the Veteran was never diagnosed with chloracne and, in fact, the March 2007 VA examiner specifically found against a diagnosis of chloracne or acne. No other relevant skin disabilities are listed under the provision. Accordingly, service connection for the Veteran's skin disability cannot be granted on a presumptive basis. Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicides may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Meaning, the Board must still consider whether the Veteran's skin disability is directly related to service. The Board acknowledges that January 1973 service treatment records document that the Veteran suffered a rash in service which grounded him from flying for approximately five days. Other than this single, isolated rash, there is no evidence that he experienced other skin symptoms during service or during the first three decades following his separation from active duty service. More than three decades after the Veteran's separation from active duty service, treatment records finally show isolated incidences where the Veteran was treated for skin problems. However, these skin symptoms were often the result of or associated with other illnesses. For example, the August 2005 private treatment record notes that the Veteran had a rash when he reported to the emergency department with chief complaints of coughing, vomiting, and body aches. A November 2005 VA treatment record notes that the Veteran had a rash when he reported symptoms of rectal bleed. A bilateral hand rash existed from October to December 2016 which was believed to have been contact dermatitis due to recent contact with a substance although the Veteran denied such contact. Regardless, the hand rash resolved with treatment. See October 2016 and December 2016 VA treatment records. Two sebaceous cysts were noted to have formed after separation from service and were removed in 2018. See May 2018 and June 2018 VA treatment records and the January 2019 VA examiner's report. And, a rash was noted at the Veteran's groin for the first time in January 2021. See April 2021 VA treatment record and January 2021 VA examiner's report. Notably, none of these skin symptoms occurred on the Veteran's face despite the Veteran alleging that he suffered from rashes on his face and scalp due to the January 1973 in-service facial rash and his exposure to herbicides. The only reports of post-service facial skin problems are contained in the March 2007 and January 2021 VA examiners' reports. There are no notes of these symptoms ever being diagnosed or treated by any of the Veteran's post-service treating medical providers. The March 2007 VA examiner was the only medical provider to assign a diagnosis of eczema. However, the February 2021 VA examiner found against the diagnosis and determined that it was not supported by the evidence. The Board agrees with the conclusion made by the February 2021 VA examiner as no evidence of eczema is contained in the Veteran's treatment records. The Board further finds that the absence of any skin disability in the Veteran's SSA records weighs against his claim as well. The Veteran failed to list any disability related to his skin despite listing multiple other disabilities. And, in fact, examinations related to his claim for SSA disability benefits noted that he denied any rash and that examiner did not find any rash. The Board emphasizes the decades-long evidentiary gap in this case between the January 1973 in-service rash and the earliest manifestations of any type of skin symptoms more than 30 years later in August 2005. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, the Board also finds that the above cited discrepancies and time gaps weigh heavily against the credibility of the Veteran's lay reports that he has intermittently experienced rashes on his face and scalp since returning from Vietnam. Notably, the February 2021 VA examiner also noted that the Veteran's lay assertions were not supported by the record. Accordingly, the Board finds that these lay statements lack credibility. Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). The question of the cause of skin disabilities, particularly whether it was caused by herbicide exposure, requires medical expertise. It is not reasonable for a layperson to opine on the medical effects of a chemical, particularly as scientific studies of potential effects themselves have not yet established a link between dermatitis, tinea cruris, or sebaceous cysts and herbicides. Insomuch as the Veteran has attempted to establish a nexus between his skin disability and his service, the Board finds that, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Instead, the Board affords greater probative value to the February 2021 and March 2021 VA examiners' reports. These reports relied on medical literature in finding that even if the Veteran had dermatitis, medical literature did not support a nexus between dermatitis and Agent Orange exposure. These reports are also against a direct connection between the Veteran's claimed skin disability and his military service since post-service evidence was negative for regular reports of symptoms. Moreover, the Board emphasizes that every medical opinion of record has been against the Veteran's claim. There is simply no medical evidence in favor of the Veteran's claim. The preponderance of the evidence is against the claim. Accordingly, the Veteran's claim for entitlement to service connection for a skin disability, to include on a presumptive basis as due to herbicide exposure, must be denied. MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi 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.