Citation Nr: 0306131 Decision Date: 03/31/03 Archive Date: 04/08/03 DOCKET NO. 97-25 146 ) DATE ) ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a skin condition, to include as a result of exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. L. Wallin, Associate Counsel INTRODUCTION The veteran served on active duty from September 1967 to August 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied the benefit sought on appeal. The issue currently on appeal was merged in August 2000 with 92-1245. Special monthly compensation was granted in a July 2002 rating decision and as such, is no longer on appeal. In September 2000, the Board remanded the issue of entitlement to service connection for a skin condition for further development and adjudication. The matter is now ready for appellate disposition. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable resolution of the issue on appeal has been obtained. 2. The veteran served in Vietnam between April 1968 and April 1969. 3. There is no competent medical diagnosis of a skin condition that is causally or etiologically related to an injury or disease suffered in service or as a result of exposure to herbicides such as Agent Orange. CONCLUSIONS OF LAW 1. The veteran is presumed to have been exposed during his period of service to an herbicide agent. 38 U.S.C.A. § 1116(f), as added by § 201(c) of the "Veterans Education and Benefits Expansion Act of 2001," Pub. L. No. 107-___ (H.R. 1291) (Dec. 27, 2001); 38 U.S.C.A. § 1116(a)(3) (2002). 2. A skin condition, to include as a result of exposure to herbicides, was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112(c), 1113, 1116, 5103, 5103A, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311 (2002 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's Claims Assistance Act Initially the Board notes that consideration has been given to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) [codified as amended at 38 U.S.C.A. § 5100 et seq. (West Supp. 2002)]. Regulations implementing the VCAA have been enacted. See 66 Fed. Reg. 45, 620 (August 29, 2001) [codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)]. The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. Except for provisions pertaining to claims to reopen based upon the submission of new and material evidence, which are not applicable in the instant case, the implementing regulations are also effective November 9, 2000. In this case, the regulations are accordingly applicable. See Holliday v. Principi, 14 Vet. App. 280 (2000) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. The current standard of review for all claims is as follows. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West Supp. 2002); 38 C.F.R. § 3.102 (2001). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." The RO previously denied the veteran's claim based, in part, on rationale that was then valid, but upon which, due to the recent change in the law, the Board may no longer rely. Specifically, the RO at one time found that the veteran had not submitted evidence of a well-grounded claim. In the July 2002 supplemental statement of the case (SSOC), the RO denied the claim on the substantive merits, based on the standard of review articulated in this decision. The Board finds, therefore, that the RO has adjudicated the veteran's claims under the correct standard. The Board will apply the current standard in adjudicating the veteran's claims. VA has a duty to notify the claimant and his or her representative of any information and evidence needed to substantiate and complete a claim. VCAA § 3(a), 114 Stat. 2096, 2096-97 [now codified as amended at 38 U.S.C.A. §§ 5102, 5103 (West Supp. 2002)]. After having carefully reviewed the record on appeal, the Board has concluded that the VCAA has been satisfied. In this regard, in a June 1998 letter, the RO outlined what evidence was necessary to substantiate the veteran's claim. In September 2000, the matter was before the Board and remanded for further development and adjudication. In May 2001, the RO sent the veteran a VCAA letter, which included: VA's duty to notify the veteran about his claim; VA's duty to assist the veteran in obtaining evidence in support of his claim; what the evidence must show to establish entitlement; and what evidence was still needed from the veteran. An additional development letter was sent in April 2002, which requested specific medical evidence. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate the claim. VCAA § 3(a), 114 Stat. 2096, 2097-98 [now codified at 38 U.S.C.A. § 5103A]. The veteran's DD- 214 has been associated with the claims folder. The veteran was afforded VA examinations in connection with his claim, the most recent being in September 2001. VA outpatient treatment records and private medical records have also been obtained and associated with the veteran's claims folder. While the Board notes that the veteran is a recipient of Social Security Disability, the Board finds that there are records from the Social Security Administration (SSA) contained within the claims folder, which show that the veteran filed his SSA claim with respect to his traumatic brain injury. The veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his claim. The veteran has not identified, and the Board is not aware of, any additional outstanding evidence. In sum, the facts relevant to the veteran's claim have been properly developed, and there is no further action to be undertaken to comply with the provisions of the VCAA and the implementing regulations. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) ("Both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary."). Therefore, there is no reasonable possibility that any further development could substantiate the claim. Accordingly, the Board will address the merits of the veteran's claim. Analysis During the pendency of this appeal, on December 27, 2000, the President signed HR 1291, the "Veterans Education and Benefits Expansion Act of 2001", which added Diabetes Mellitus Type II to the list of presumptive diseases as due to herbicides exposure and provided a presumption of exposure to herbicides for all veterans who served in Vietnam during the Vietnam Era. 38 U.S.C. § 1116(f), as added by § 201(c) of the "Veterans Education and Benefits Expansion Act of 2001," Pub. L. No. 107- (H.R. 1291) (Dec. 27, 2001). Where the law or regulations change after a claim has been filed or reopened but before the administrative or judicial appeal process is completed, the version of the law or regulations most favorable to the appellant applies unless Congress provides otherwise. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). In this case, while the veteran is now presumed to have been exposed to herbicides during service, the basic entitlements of service connection have not been meet, which shall be explained in greater detail below. 38 C.F.R. § 3.303(a). The Board's decision to proceed in adjudicating this claim does not, therefore, prejudice the veteran in the disposition thereof. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The veteran contends that he is entitled to service connection for a skin condition, claimed as a result of exposure to herbicides, including Agent Orange. Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Subsequent manifestations of a chronic disease in service, however remote, are to be service connected unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an 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.A. § 1116(f). Diseases associated with such exposure include: chloracne or other acneform diseases consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult- onset diabetes); Hodgkin's disease; multiple myeloma; non- Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft- tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e), as amended by 66 Fed. Reg. 23,166, 23,169 (May 8, 2001). These diseases shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The Secretary of Veterans Affairs 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. 341-346 (1994). See also 61 Fed. Reg. 41,442, 41,449 and 57,586, 57,589 (1996). A list of specific conditions not having a positive association was recently published by the Secretary. See Notice, 67 Fed. Reg. 121, 42600-42608 (June 24, 2002). Notwithstanding the aforementioned provisions relating to presumptive service connection, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Initially, the Board finds that based on the medical evidence of record, the veteran does not have one of the listed diseases in order to establish service connection by presumption, based on herbicide exposure. 38 C.F.R. § 3.309(e). Thus, the Board proceeds with determining service connection on a direct causation basis. The veteran served in Vietnam from April 1968 to April 1969. The veteran's DD-214 reflects the veteran received the Vietnam Campaign Medal, the Vietnam Service Medal, and the National Defense Service Medal. Therefore, having served in the Republic of Vietnam, the veteran is presumed to have been exposed during his period of service to an herbicide agent. 38 U.S.C.A. § 1116(f). Service medical records reflect that upon enlistment examination in August 1967, the veteran reported a history of skin diseases. The examiner noted upon the veteran's Report of Medical History that the veteran had shingles in 1962. Upon the veteran's April 1970 separation examination the veteran again indicated that he had a history of skin diseases. No defects of the skin were noted. The earliest records of post-service treatment for a skin condition are dated in 1993 where VA noted the veteran had acne vulgaris. Upon VA examination in November 1970, three months after the veteran's discharge from service, his skin was evaluated as clear and no defects were noted. Even considering the veterans statements that has had a skin condition since service, there were no manifestations of a chronic disease in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection pursuant to 38 C.F.R. § 3.303(b). The veteran was afforded an Agent Orange Registry Examination in April 1991. The veteran indicated that he was directly sprayed with Agent Orange and that he probably ate and drank food that had been contaminated. He complained that he had a transient rash on his back and shoulders. Upon physical examination, the veteran had extensive acneiform scarring and mild active cystic lesions to his back, face, chest, and shoulders. The veteran was diagnosed with cystic acne. VA outpatient treatment records dated between December 1993 and September 1994 are negative for any complaints of or treatment for a skin condition. A February 1996 VA examination found the veteran's skin negative for skin lesions or rashes. VA outpatient treatment records dated between August 1996 and October 1998, show complaints of sores on the veteran's scalp in May 1997. There was no corresponding diagnosis of a skin condition. Records from the Pineville Community Hospital dated between July 1996 and August 1998, indicate that upon a review of systems in February 1998, the veteran indicated he had no history of rashes. A letter from Dr. E.H.R. dated in April 1998 indicates that he had been caring for the veteran for years and that the veteran had recurrent skin problems and follicultis, more severe on his back. Treatment records from Dr. E.H.R. dated between May 1996 and August 1998, show a diagnosis of cellulitis of the scalp in May 1997 and folliculitis of the head in April 1998. No nexus opinions were provided. VA outpatient treatment records dated between October 1998 and December 2000 are also contained within the claims folder. In January 2000, the veteran complained of a chronic rash on his back, which he indicated might be due to Agent Orange exposure. No diagnosis was made. In July 2000, the veteran complained of a slight rash on his forearms and lower legs. Again, no diagnosis was made. In September 2000, the veteran complained of a rash, but had resolution when he discontinued the use of Naproxen. A dermatology consult dated in September 2000, showed the veteran was diagnosed with acne scarring with rare residual papule on his back. He was also diagnosed with dermatitis. No nexus opinions were provided. Finally, the veteran was afforded a VA examination in September 2001. The veteran complained of acne problems during his teenage years and during his period of active duty service. The veteran stated that he was currently under no treatment for acne and had no symptoms referable to his skin. Physical examination revealed old acne scars to the face and neck. The examiner found no evidence of current infection. On the veteran's back, there were multiple acneform scars and several areas where the cystic acne had been lanced or excised. The examiner found no current cystic areas present. The veteran was diagnosed with cystic acne of the back and old acneform scars of the face and neck area without significant disfigurement. The examiner opined that the veteran's skin lesion were those of typical acne and cystic acne. The examiner also indicated that the veteran's skin lesions were not representative of chloracne and additionally, that they began prior to the veteran's time of active duty. In conclusion, the examiner stated that the veteran's skin lesions were "not related to his history of exposure to Agent Orange." Based on a thorough review of the evidence of record, the Board concludes that entitlement to service connection for a skin condition, to include as a result of exposure to herbicides, is not warranted. Specifically, upon VA examination in September 2001, the veteran's skin condition was not found to be related to service or a history of exposure to Agent Orange. In essence, there has been no showing that the veteran's cystic acne of the back is related to a personal injury suffered or disease contracted in the line of duty, or as a result of exposure to herbicides, during his active military service, nor may it be presumed to have so incurred. 38 U.S.C.A. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board also finds that even if the Board were to assume, as the September 2001 VA examiner suggests, that the veteran's cystic acne existed prior to his period of active duty, service medical records do not show that there was an increase in disability, and aggravation may not be conceded where the disability underwent no increase in severity during service. 38 C.F.R. § 3.306. However, the Board is not convinced that cystic acne existed prior to service, as the veteran is considered presumed sound upon entrance into service except for defects noted at the time of enlistment examination. 38 C.F.R. § 3.304(b). The Board finds the preponderance of the evidence is against the veteran's claim of entitlement to service connection for a skin condition, to include as a result of exposure to herbicides. The evidence is not in relative equipoise; therefore, the veteran may not be afforded the benefit of the doubt in resolution of this claim and his claim must be denied. ORDER Service connection for a skin condition, to include as a result of exposure to herbicides, is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.