Citation Nr: 0213360 Decision Date: 10/01/02 Archive Date: 10/10/02 DOCKET NO. 97-32 177 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a claimed skin disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary C. Suffoletta, Associate Counsel INTRODUCTION The veteran had active service from February 1966 to February 1969. This case initially came to the Board of Veterans' Appeals (Board) on appeal from an April 1997 decision of the RO. The Board remanded the case to the RO for additional development of the record in August 1999. In August 1999, the Board also noted that the veteran had appeared to have raised an issue of service connection for a respiratory disorder. This matter is again referred to the RO for appropriate action. In an August 2002 rating decision, the RO denied entitlement to service connection for the following claimed disorders: Peripheral neuropathy of the upper and lower extremities; impotency; cerebrovascular disease; and a right knee condition. The record reflects no Notice of Disagreement, to date, with that rating decision, and these issues have not been certified for appellate consideration. As such, these matters are not in appellate status and will not be addressed by the Board at this time. FINDING OF FACT The veteran currently is shown to have skin manifestations variously described as being due to tinea versicolor or folliculitis and onychomycosis the manifested by rashes that as likely as not developed during service. CONCLUSION OF LAW By extending the benefit of the doubt to the veteran, his skin disability manifested by tinea versicolor or folliculitis and onychomycosis is due to disease that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 7104 (West 1991 & Supp. 2002); 38 C.F.R. § 3.303 (2001). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duty to Assist and Provide Notice There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminates the concept of a well-grounded claim and supersedes the decision of the United States Court of Appeals for Veterans Claims 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. VCAA, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). To implement the provisions of the law, VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)). The implementing regulations are meant to define terms used in the Act, and provide guidance for carrying out the requirements of the Act. The regulations, with the exception of development in the case of attempts to reopen finally denied claims made after August 21, 2001, are not meant to bestow any new rights. 66 Fed. Reg. 45,629 (Aug. 29, 2001). Thus, the veteran is not prejudiced by the Board's initial application of the regulations to his claim. In this case the veteran's application appears to be complete. He has been informed of the information necessary to substantiate his claims via the Statement of the Case, the Supplemental Statements of the Case, and the Board's earlier remand. There does not appear to be any relevant evidence that has not been associated with the claims folder. The record contains sufficient information and opinions to decide the claim for service connection for the claimed skin disorder. The Board finds that all relevant evidence has been obtained with regard to the veteran's claim. Hence, no further assistance to the veteran is required to fulfill VA's duty to assist him in the development of this claim. 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2002). II. Service Connection for a Skin Disorder A. Factual Background A careful review of service medical records at the time of the veteran's enlistment examination in February 1966 shows no abnormality of the skin. The veteran was treated for tinea pedis in June 1966. On a "Report of Medical History" completed by the veteran in January 1969, the veteran reported having boils. The examiner also noted the presence of boils. The separation examination report noted no defects. The VA treatment records dated in January 1981 show a history of skin lesions. The veteran underwent a VA examination in January 1997. He complained of having had a persistent rash since 1969 on his trunk and neck. He reported that lesions occurred intermittently and were occasionally itchy. An examination of the skin revealed several tan, approximately 5-to-20 mm patches on the left and right trunk. There were some fine overlying scales. The total body surface area involved was less than 1 percent at this time. The diagnosis was that of tinea versicolor. The veteran underwent a VA Agent Orange examination in March 1997. His medical history reflected that he had direct exposure to Agent Orange the entire time that he was in the Republic of Vietnam between September 1967 and September 1968. He developed skin rashes just before he left, but the rashes became worse after his return to the United States. He reported having skin rashes with intense itching. Upon examination, the veteran had abnormal skin rashes all over his body. It was the opinion of the examiner that the veteran's skin rashes might be connected to Agent Orange. The veteran underwent a VA examination in August 2000 that revealed the presence of perifollicular pustules and erythematous papules on his abdomen. There were also a few purple patches on his abdomen. The diagnosis was that of folliculitis with post-inflammatory hyperpigmentation. It was the opinion of the examiner that the veteran's skin disorder did not represent chloracne from any type of exposure. A report of VA examination in July 2002 noted the presence of onychomycosis involving all of the veteran's toes. The statements of the veteran in the claims folder are to the effect that he continued to have a rash all over his body, including his underarms and chest. B. Legal Analysis Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time. 38 U.S.C.A. § 1111. Service medical records of the veteran's entry report no skin defect, and the Board presumes the veteran to have been in sound condition at the time of entry. Parker v. Derwinski, 1 Vet. App. 522 (1991). In the instant case, there is no evidence that a skin disorder preexisted service. The service medical records show that the veteran was treated for tinea pedis in June 1966. He also reported having boils at the time of the separation examination. The Board notes in this case that service connection has been established for diabetes mellitus associated with herbicide exposure. Service connection may be granted for a disease based on exposure to Agent Orange when there is medical evidence linking it to such incident. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda (PCT); 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) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne, PCT, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within one 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 U.S.C.A. §§ 1113, 1116; 38 C.F.R. § 3.307(a)(6)(ii). Here, the evidence reveals no diagnosis of chloracne or any other acneform disease consistent with chloracne. As such, the Board finds that service connection for a skin disorder on a presumptive basis under 38 C.F.R. § 3.309(e) is not warranted. The statements of the veteran indicate that he developed a skin rash while in the Republic of Vietnam and had had a persistent rash on his trunk and neck since 1969. The Board finds the medical evidence and the veteran's statements probative for the purpose of establishing the incurrence of a skin rash in service. The veteran in this regard is competent to testify as to the nature and severity his skin manifestations both during and after service. The United States Court of Appeals for Veterans Claims has found that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). The post-service medical records reflect a history of skin lesions in 1981, a diagnosis of tinea versicolor in 1997, a diagnosis of folliculitis with post-inflammatory hyperpigmentation in 2000, and the presence of onychomycosis in 2002. After consideration of all the evidence, the Board finds that it is in relative equipoise as to whether the veteran's current skin disability that had its clinical onset in service. By extending the benefit of the doubt to the veteran, service connection for the currently demonstrated skin disability variously characterized as tinea versicolor or folliculitis and onychomycosis is warranted. ORDER Service connection for a skin disability described as tinea versicolor or folliculitis and for onychomycosis is granted. STEPHEN L. WILKINS 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.