Citation Nr: 0301935 Decision Date: 01/31/03 Archive Date: 02/07/03 DOCKET NO. 94-02 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a skin disorder, to include that related to herbicide exposure. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The veteran served on active duty from October 1968 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in January 1993 by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, denying the veteran's claim of entitlement to service connection for a skin disorder. The Board in prior remands of January 1996 and February 2000 remanded the issue in question to the RO so that additional development actions could be undertaken, noting as well that the veteran had raised the issue of his entitlement to service connection for a skin disorder related to inservice herbicide exposure. Such claim, although excluded previously by the Board, was initiated in May 1994 and adjudicated by the RO in August 1994. The claim for a skin disorder based on inservice herbicide exposure was included in the RO's supplemental statement of the case of August 1994 and such claim has been consistently argued by and on behalf of the veteran and otherwise developed by the RO along with the issue of entitlement to a skin disorder, other than as a residual of herbicide exposure. As all of the component parts of an appeal as to the RO's denial of the veteran's claim for service connection for a skin disorder, inclusive of that related to herbicide exposure, are in place, see 38 C.F.R. § 20.200 (2002), it is within the Board's jurisdiction to review the claim for service connection for a skin disorder in its entirety. While the case was most recently in remand status, it was made known to the RO that the attorney, Fred V. Monachello, who previously was representing the veteran in this matter, was no longer engaged in the practice of law. The veteran was informed of that fact in the RO's correspondence, dated in October 2002, to him, and he was therein invited to a another power-of-attorney in favor of another attorney or service organization. No additional appointment of a representative by the veteran is otherwise shown by the record. FINDINGS OF FACT 1. The veteran had service in Vietnam as defined by 38 U.S.C.A. § 1116(f) (West 2002) and 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2002), and he is presumed to have been exposed to one or more herbicide agents during such service. 2. The veteran was treated in service and or placed on physical profile on several occasions for skin disturbances, and diagnoses, including that of folliculitis of the groin and pseudofolliculitis barbae of the face, were recorded in service. 3. Postservice medical treatment for a variety of skin disorders is shown during the 1980s and 1990s, including chloracne, although evidence that the veteran's chloracne was manifest to a degree of 10 percent or more within one-year of his last inservice exposure is not presented. 4. There is a showing of current disability involving chronic folliculitis of the scalp and trunk, as well as chloracne, and medical professionals have linked such disorders of the veteran's skin to his period of military service, including inservice exposure to herbicide agents. CONCLUSION OF LAW Chloracne, due to herbicide exposure, and folliculitis of the scalp and trunk were incurred in service. 38 U.S.C.A. §§ 1110, 1111, 1113, 1116, 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.313, 3.326 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Considerations It is significant that a major change in the law was effectuated during the pendency of this appeal, when on November 9, 2000, the President of the United States signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other things, this law eliminated the concept of a well-grounded claim, redefined and expanded the obligations of VA with respect to its duty to assist, and superseded the decision of the United States Court of Appeals for Veterans Claims (Court) in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. As well, changes to the Code of Federal Regulations were made in response to the VCAA. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The record reflects that the veteran was made aware of the changes brought about by passage of the VCAA in the RO's letters of September and October 2002 to him. In the October 2002 correspondence, the RO also informed the veteran that an unsuccessful attempt had been made to obtain information from the service department in an effort to verify his service in Vietnam and he was therein asked to complete a National Archives and Records Administration Form 13055, Request for Information Needed to Reconstruct Medical Data, presumably so that an additional search for records could be undertaken. The veteran responded later in October 2002, presenting an executed National Archives Form 13055 and a VA Form 21-4138, Statement in Support of Claim, wherein, among other things, he set forth a change of address. Thereafter, it is not shown that the RO conducted any further inquiry in an effort to obtain service personnel records or other service department information, nor was a supplemental statement of the case issued. The only subsequent action by the RO is shown to have occurred in December 2002, when a notice of appeal certification letter was mailed to the veteran at an address other than the one he provided to the RO in October 2002. In view of the favorable decision reached in this case, however, the need for discussion of the RO's attempts to comply with the newly established law and regulations relating to the VCAA, or correction of the deficiencies set forth above, is obviated. See Bernard v. Brown, 4 Vet. App. 384 (1993); VAOGCPREC 16-92 (O.G.C. Prec. 16-92). Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted during active duty, or for aggravation of a preexisting injury suffered or disease contracted within the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order for service connection for a particular disability to be granted, a claimant must establish that he or she has such disability and that there is a relationship between the disability and an injury or disease incurred in service or some other manifestation of the disability during service. Mercado- Martinez v. West, 11 Vet. App. 415, 419 (1998); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). When a disease is not initially manifested during service, "direct" service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred or aggravated during the veteran's service. See 38 U.S.C.A. § 1113(b); Hensley v. Brown, 5 Vet. App. 155, 158 (1993). If a veteran was exposed to an herbicide agent during active military, naval or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Type II diabetes mellitus, chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) must 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 must have become manifest to a degree of 10 percent or more within one year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). However, the presumption is a rebuttable one. 38 C.F.R. § 3.307(d), For purposes of establishing service connection for a disability or death resulting from exposure to a herbicide agent, including a presumption of service-connection under this section, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin or 2,4- dichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in 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); see § 201(c) of the "Veterans Education and Benefits Expansion Act of 2001," Pub. L. No. 107-103, 115 Stat. 987, 988 (Dec. 27, 2001). Service in Vietnam includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727- 29 (1984), does not preclude establishment of service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). From a review of the record, it is noted that an enlistment medical examination of the veteran in September 1968 in no way noted the existence of any skin disorder, and, as such, the veteran is entitled to a presumption of soundness at service entrance with respect to his claimed skin disorder(s). 38 U.S.C.A. § 1111. Service medical records document treatment in March 1971 for pimples in the pubic area, with examination showing multiple raised areas. The following month, he was seen for infected hair follicles in the inguinal area; in June 1971, treatment was received for a rash in the groin area, with examination showing the presence of mild folliculitis of the suprapubic area. Medical care was also received in May 1972 for a skin rash and hyperhidrosis. A physical profile was assigned in July 1972 due, in part, to the presence of pseudofolliculitis barbae. Postservice, treatment for skin problems is shown to have received initially in April 1983, when it was noted that VA outpatient examination revealed a 12 square centimeter area of maculopapular lesions of the right lateral chest. Medical assistance was obtained on numerous occasions during the 1990s for various skin related diagnoses, including tinea cruris, chronic tinea infection, folliculitis of multiple areas, dermatitis, intertrigo, and chloracne. Noteworthy, too, is that a VA Agent Orange examination in May 1994 yielded a diagnosis of chloracne. On file are two medical reports, dated in January 1995 and January 1996, respectively, from private physicians who previously had examined the veteran. Diagnoses of chloracne and dermatitis were therein offered by such physicians and each noted that the diagnosed entity was the result of the veteran's inservice Agent Orange exposure or history thereof. VA examination in September 1996 disclosed findings which resulted in entry of diagnoses of folliculitis of the scalp and trunk, striae of the groin, and a history consistent with tinea cruris. Further VA examination by a fee-basis physician in March 2000 culminated in entry of a diagnostic impression of chronic chloracne due to Agent Orange exposure from 1970 to 1972. In an addendum to his March 2000 report, the examiner noted that he had reviewed the claims folder of the veteran and found that his skin disease manifestations were completely compatible with prior Agent Orange exposure and skin diseases caused by that chemical. In October 2001, the veteran was afforded an additional VA medical examination by another fee-basis physician whose examination yielded diagnoses of status post chronic folliculitis of the scalp and trunk, as well as chloracne. A medical opinion was offered by such examiner, as follows: After review of the veteran's C-file and supporting documentation as well as the history and physical examination, it is my professional opinion to a reasonable degree of medical probability that it is as likely as not that the veteran's current skin condition began in or was incurred during military service. The etiology of the veteran's skin condition is more likely than not chloracne related to previous Agent Orange exposure. Without question, the foregoing overwhelmingly establishes the presence of current skin disabilities of the veteran's skin. Among those disorders is chloracne, a disease for which there exists a rebuttable presumption of service incurrence, based on herbicide exposure, but only upon a showing that the chloracne was manifest to a degree of 10 percent or more within one year of his service separation. See 38 C.F.R. § 3.307(a)(6)(iii). In this instance, chloracne is not shown to have been present to the requisite degree anytime within the one-year period following the veteran's discharge from service in September 1972, and to that extent, he is not entitled to the rebuttable presumption of service incurrence set forth in 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307, 3.309, based on chloracne. Moreover, there is no showing of any other disease for which there exists a presumptive service connection is warranted based on the aforementioned provisions. That notwithstanding, persuasive medical evidence is presented in this matter which specifically links the veteran's current skin disabilities involving folliculitis and chloracne to his period of service and/or inservice herbicide exposure. See Hensley, Combee, supra. In this regard, it is noted that the fee-basis examiner who evaluated the veteran on behalf of VA in October 2001 found it at least as likely as not that the veteran's folliculitis of the scalp and trunk originated in service. As well, various medical professionals have set forth the existence of a nexus between the veteran's chloracne and his inservice Agent Orange exposure. There remains, however, the question as to whether the veteran was in fact exposed to a herbicide, inclusive of Agent Orange, while on active duty. As referenced above, a liberalization was effectuated in early 2002 with respect to whom a presumption of herbicide exposure applies. Under such change in the law, a veteran need only show that he or she, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975. See also, 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (defining the phrase, service in Vietnam). In this case, there is some conflict in the evidence as to whether, in fact, the veteran served on active duty within the geographical boundaries of the Republic of Vietnam. There is, on one hand, a notation in the veteran's Department of Defense Form 214 (DD 214), Report of Transfer or Discharge, indicating that he did not serve in Vietnam, although service in Indochina is therein indicated. There is also irrefutable evidence that the veteran served in Thailand for an extended period, based on entries in service medical records, and it is noted that he offers credible testimony that he was involved in the transport, as well as the loading of trucks and aircraft, with tanks of defoliants and was assigned the duty to spray a defoliant in areas surrounding his barracks at his base camp in Thailand. Such is not inconsistent with his documented military occupational specialty of vehicle operator and dispatcher. As well, his DD 214 denotes receipt of the Vietnam Service Medal and Vietnam Campaign Medal, and while such medals were awarded to personnel who did not physically serve in Vietnam, those persons on ships directly supporting military operations or aircrew members who actually participated in one or more aerial flights directly supporting military operations were eligible for those medals. Inasmuch as the veteran's specific duty assignments cannot be verified through his service personnel records, for which he bears no responsibility, and inasmuch as there is an approximate balance of positive and negative evidence regarding the question as to whether the veteran served in Vietnam, the undersigned gives the veteran the benefit-of-the-doubt, as required by 38 U.S.C.A. § 5107, and concludes that the veteran is entitled to a presumption of herbicide exposure. Based on the veteran's inservice herbicide exposure, and in light of the medical opinion evidence, all of which links the veteran's folliculitis and chloracne to his period of service or an event thereof, grants of service connection for folliculitis of the veteran's scalp and trunk, as well as chloracne, are in order. ORDER Service connection for folliculitis of the scalp and trunk is granted. Service connection for chloracne, due to herbicide exposure, is granted. LAWRENCE M. SULLIVAN Member, 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.