Citation Nr: 1801388	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  12-30 916	)	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 as due to herbicide exposure.
 

REPRESENTATION

Appellant represented by:	Robert C. Brown, Jr., Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. Rideout-Davidson, Counsel


INTRODUCTION

The Veteran had active duty service from October 1966 to October 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in April 2013.  A transcript of that hearing has been associated with the claims file.

In March 2015 and January 2017, the Board remanded the claim for further development.  That development was completed, and the case has since been returned to the Board for appellate review.

The Board also remanded the issue of entitlement to service connection for tremors in an October 2017 for further development.  That development has not been completed, and the AOJ has not readjudicated or recertified the issue.  Thus, that issue remains in remand status and is not currently before the Board.

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.  
 
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).





FINDINGS OF FACT

1.  The Veteran has a current diagnosis of lichen simplex chronicus that is related to his military service.

2.  The Veteran has not been shown to have a skin disorder other than lichen simplex chronicus that manifested in or is otherwise causally or etiologically related to his military service, to include exposure to herbicides therein.  


CONCLUSIONS OF LAW

1.  Lichen simplex chronicus was incurred in active service.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017).

2.  A skin disorder other than lichen simplex chronicus was not incurred in active service and may not be presumed to have incurred therein.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  




Law and Analysis

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In addition, where the veteran claims a disorder as a result of exposure to an herbicide, such as Agent Orange, service connection may be granted on a presumptive basis.  A veteran who, during active military, naval, or air service, 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 such veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307(a)(6)(iii).  If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116; 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 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied.  38 C.F.R. § 3.309(e).  The enumerated diseases which are deemed to be associated with herbicide exposure are AL amyloidosis; chloracne or other acneform disease consistent with chloracne; type 2 diabetes; Hodgkin's disease; ischemic heart disease; chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and certain soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  Id. 

VA's Secretary has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted.  See Diseases Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 81,332 (Dec. 27, 2010); see also Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange, 77 Fed. Reg. 47,924 (Aug. 10, 2012).

Despite the presumptive regulations, a claimant may establish service connection based on exposure to Agent Orange with proof of actual direct causation.  See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997).

In this case, the Board notes that the Veteran's service treatment records indicate that the Veteran had service in Vietnam during the requisite time period.  As such, he is presumed to have been exposed to herbicides, to include Agent Orange, during such service.  

As set forth above, VA regulations provide that, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116, 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 U.S.C.A. § 1113; 38 C.F.R. § 3.307 (d) are also satisfied.  38 C.F.R. § 3.309(e).  These enumerated diseases, however, do not include skin cancer or lichen simplex chronicus.  See 38 C.F.R. § 3.309 (e).  As such, service connection for these skin disorders is not warranted on a presumptive basis. 

As noted above, although these disabilities are not amongst the delineated diseases associated with herbicide exposure, service connection may be established with evidence of actual causation.  Thus, the Board will address service connection for a skin disorder on the basis of direct service connection.

The Veteran's service treatment records show that his July 1966 induction examination found no skin disorders present.  A July 1966 report of medical history form indicates a medical history of skin disease; however, nothing further is reported.  In October 1966, the Veteran was treated for onychomycosis of the finger nails secondary to a tinea infection.  In September 1968, another report of medical history form noted a history of skin disease; however, the form also indicated that there was no current sequela.  An October 1968 separation examination was silent as to any skin disorders or relevant symptoms.

The Veteran was afforded a VA examination in February 1994 at which time he was diagnosed with actinic keratosis.  The examiner noted that the Veteran had indirect exposure to Agent Orange in 1968, but found no evidence of Agent Orange residual effects on the skin.

At a VA Medical Center appointment in December 2004, the Veteran's medical provider reported a history of chronic sun damage with a newly growing skin lesion.  A biopsy of the suspicious lesion was taken at that time.

In January 2008, the Veteran's VA Medical Center performed a skin cancer excision.  Another skin lesion was evaluated for cancer in July 2009.

The Veteran has provided lay statements that his skin cancer is related to his sun exposure and/or herbicide exposure in Vietnam, while in service.  

The Veteran has also stated that he has fungus and rashes as a result of his military service.  In this regard, the Board notes that the Veteran's VA medical records show treatment for longstanding testicular puritis.

In August 2009, the Veteran's VA medical provider Dr. S.S. (initials used to protect privacy) provided an opinion regarding his longstanding testicular itch.  She noted that the Veteran reported that the itch began while he was serving in Vietnam and that the problem was present prior to his testicular surgery (for testicular cancer, which is not currently before the Board).  She noted that he had been prescribed many creams and lotions to treat the condition.  She opined that many veterans who served in country in Vietnam experienced similar complaints and found that it was very likely that the itch was related to the Veteran's Vietnam service.

A June 2012 VA examination noted a history of skin cancer removals, but no opinion was given regarding skin cancer during that examination.

In March 2013, the Veteran submitted a private independent medical examination from Dr. J.E. (initials used to protect privacy).  Dr. J.E. noted that the Veteran was exposed to Agent Orange and extreme sunlight while serving in Vietnam.  He opined that such exposure causes damage to the skin cells.  The damaged skin cells then try to repair themselves; however, mutations frequently happen during that process, which he noted, in time, turn into skin cancer.

VA medical records dated from 2012 through 2014 show that the Veteran was treated for dermatitis or lichen simplex chronicus of the groin, as well as actinic keratosis on multiple occasions.  However, there are no etiology opinions in these records.

The Veteran was treated by in September 2013 for growing lesions and diffuse actinic damage in chronically sun exposed areas.  These records do not distinguish between in-service and post-service sun exposure.

The Veteran was afforded another VA examination in January 2016.  At that time, the VA examiner found no evidence of dermatitis.  Instead, the examiner diagnosed the Veteran with a history of basal cell carcinoma and squamous cell carcinoma.  After a review of the medical records and an evaluation of the Veteran, the examiner opined that the skin cancers were not related to service.  However, the examiner noted that it was well known that sun light causes skin cancer and that the Veteran was exposed to sunlight during and after service.  The Board found this opinion inconsistent as to whether the Veteran's in-service sunlight exposure could have caused the skin cancer, and therefore, remanded the claim for an additional medical opinion. 

In October 2015, at his VA Medical Center, the Veteran was again treated for skin lesions of concern as well as scrotal prurigo.  Actinic damage in sun exposed regions was then found during a January 2017 visit, and actinic keratosis was treated.

The Veteran was afforded another VA examination in April 2017 per the Board's January 2017 remand.  At that time, the Veteran was diagnosed with actinic keratosis and lichen simplex chronicus.  The examiner noted that the Veteran's service treatment records were silent as to any skin disease, except for onychomycosis of the fingernails.  She opined that many years had passed before documentation of the Veteran's skin conditions, to include his lichen simplex chronicus, and skin cancer had not been diagnosed until decades after service.  She noted that the sun exposure during service would not be significant enough or long enough of a duration to substantiate the subsequent development of skin cancer or actinic keratosis.  She also opined that there was no medical literature linking his current skin diagnoses to Agent Orange exposure.  Finally, she noted that the Veteran's onychomycosis had resolved.

First, the Board notes that the medical evidence does not support a current diagnosis of onychomycosis.  Additionally, the Veteran has, at no time, made a claim of onychomycosis of the nails.  As such, the Board finds that any further discussion is not needed regarding that disorder.

With regard to the Veteran's diagnosis of lichen simplex chronicus (LSC), the Board finds that the medical evidence cited above shows that service connection is warranted.  The April 2017 VA medical opinion did not find that the Veteran's LSC was related to service; however, as to the LSC, the examiner does not appear to have considered the Veteran's statements that the condition began in service.  Moreover, Dr. S.S. provided a contrasting medical opinion that considered the Veteran's statements and noted that similar conditions have occurred in other Vietnam veterans.  While Dr. S.S. did not fully consider the Veteran's service treatment records, she did provide a medical opinion with supporting rationale, which considered all of the evidence of record, to include her experience with this particular skin condition and its prevalence in other Vietnam veterans.  The Board finds that the medical evidence of record is at least in equipoise as to the LSC, and thus, permits application of the reasonable doubt doctrine.  Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for LSC are met.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102. 

Nevertheless, in considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a skin disorder other than LSC.

The value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."  Bloom v. West, 12 Vet. App. 185, 187 (1999).  Thus, a medical opinion is inadequate when it is unsupported by clinical evidence.  Black v. Brown, 5 Vet. App. 177, 180 (1995). See also Knightly v. Brown, 6 Vet. App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record and conclusions of medical professionals which are not accompanied by a factual predicate in the record are not probative medical opinions).  In this case, and based on the foregoing, the Board attaches the greatest probative weight to the opinion of the April 2017 VA examiner who had the benefit and review of all pertinent medical records, provided a thorough rationale supported by the record, and included review of the relevant medical literature in her opinion.  She also considered the length of time the Veteran was exposed to sunlight in Vietnam. 

In contrast, the opinion provided by Dr. J.E. provided an opinion that the Veteran's skin cancer was related to skin damage that occurred while in service due to herbicide and sun exposure.  However, his opinion was supported by a generic statement as to how skin cancer occurs generally; he did not provide any rationale or support with regard to the Veteran's specific service or the length of time that the Veteran was exposed to the sun while in Vietnam as compared to his post-service sun exposure.  Dr. J.E. did not consider any medical literature or provide any additional rationale.  Therefore, Dr. J.E.'s opinions are afforded little probative weight.  

The Board also notes that the Veteran has stated that his skin disorder is the result of his military service, to include his exposure to herbicides and/or sunlight therein.  The Veteran is competent in this case to provide testimony regarding his symptoms.  Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis and etiology of skin cancer and whether or not such a disorder was caused by his service and the exposure to herbicides and sunlight therein, falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset of the disorder.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  

Moreover, even assuming the Veteran's lay assertions regarding etiology are competent, the Board nevertheless finds the April 2017 VA examiner's opinion to be more probative, as it is based on a review of the record and relevant medical literature as well as the examiner's own medical expertise, training, and knowledge.  The examiner also provided clear rationale in support of the conclusions reached.

For the reasons outlined above, the Board concludes that the weight of the evidence is against a finding of entitlement to service connection for a skin disorder other than LSC.  As such, the benefit-of-the-doubt rule does not apply, and the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  










ORDER

Service connection for lichen simplex chronicus is granted.

Service connection for a skin disorder other than lichen simplex chronicus is denied.



____________________________________________
J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs



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