Citation Nr: 0306094 Decision Date: 03/31/03 Archive Date: 04/08/03 DOCKET NO. 98-10 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a skin disability of the hands, including as a result of exposure to herbicides in service. 2. Entitlement to service connection for a skin disability of the feet, including as secondary to service-connected diabetes mellitus. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Spear Ethridge, Counsel INTRODUCTION The veteran had active naval service from February 1964 to December 1967, and from January 1968 to December 1973, including service in Vietnam on the U.S.S. CADDO PARISH (LST- 515). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1998 rating decision by the Louisville, Kentucky Regional Office (RO) of the Department of Veterans Affairs (VA). The RO, in pertinent part, denied the veteran's claim for service connection for a skin condition to include as a result of exposure to herbicides. During the course of the appeal, the veteran's claims file was transferred to Texas and back to Kentucky for current development and certification to the Board. The veteran provided oral testimony before a Hearing Officer at the RO in May 1999, a transcript of which has been associated with the claims file. As of October 2000, the veteran's power of attorney was revoked from the Veterans of Foreign Wars. He is currently unrepresented in this matter before the Board. The veteran provided also oral testimony before a Member of the Board in October 2000, a transcript of which has been associated with the claims file. The Veterans Law Judge who conducted the October 2000 personal hearing has since left the Board. Under such circumstances when the Veterans Law Judge who conducted the personal hearing has left the Board, the veteran is entitled to another personal hearing if he so desires. Since this decision provides for a full grant of the benefits sought on appeal, the veteran will not be prejudiced by not having another hearing before the Board. Bernard v. Brown, 4 Vet.App. 384, 393 (1993). In January 2001 the Board remanded the case to the RO for further development and adjudicative action. In July 2002 and February 2003, the Board undertook additional development on the claim of entitlement to service connection for a skin disability of the hands and feet, including as a result of exposure to herbicides in service, pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002), 38 C.F.R. § 19.9(a)(2) (2002). The development has been completed and associated with the claims file. The veteran was notified of the development in November 2002 and February 2003. 38 C.F.R. § 20.903 (2002). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained, and the veteran has been properly notified of the elements necessary to grant his claim for the benefit sought. 2. The veteran served in the Republic of Vietnam. 3. Service connection is in effect for diabetes mellitus. 4. The competent and probative evidence of record establishes that a skin disability of the hands is related to service. 5. The competent and probative evidence of record establishes that onychomycosis of the feet bilaterally is causally related to service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. A skin disability of the hands was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002), 38 C.F.R. § 3.303 (2002). 2. A skin disability of the feet is proximately due to or the result of service-connected diabetes mellitus. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310(a) (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Service medical records reveal that the veteran was seen several times for skin rashes and lesions. Contact dermatitis on both forearms was noted in July 1969, suspected to be secondary to working with fiberglass. No abnormality of the skin was noted upon service discharge. Service records reveal that the veteran served in the era of Vietnam. He received a Vietnam Service Medal with 1 Silver Star, a Combat Action Ribbon, Republic of Vietnam Campaign Medal with 1960 Device, and Republic of Vietnam Meritorious Unit Citation (Gallantry Cross Medal Color with Palm). VA treatment records show that in November 1990 the veteran was seen for other reasons, but also complained of cracks on his hands at that time. In July 1997 the veteran was seen at VA for a flared skin rash. He had been treated 3 or 4 years ago with ointment, but obtained no resolution of the skin problem. It was noted that he had dermatitis of both hands. In January 1998 a private DO wrote a letter on the veteran's behalf to the effect that he had no medical records on the veteran. The DO stated that, as a favor to his ex medical assistant, the daughter of the veteran, he had treated the veteran one time for a bacterial skin infection of the hands. In July 1998 the veteran's daughter wrote a letter on his behalf to the effect that she was employed by the DO who also wrote a letter in support of the veteran. She recounted that her father had had a skin condition for as long as she could remember. The condition flared up in the winter. It was a bacterial infection according to the DO. In April 1999 the veteran was seen at VA for skin rash, eurythemetous pstosis on both hands. In May 1999 the veteran testified at a personal hearing at the RO. He stated that his skin problem was on his hands and feet, and that dryness of the skin began when he got out of the Navy. The skin always stayed extremely dry, even with lotion applied. Four to 5 times per year he had a skin flare-up, and open sores appeared on his hands and feet, bilaterally. VA records show that in May 2000, the veteran went to a class regarding diabetes, and foot care was discussed. In July 2000 he was seen in the podiatry clinic for palliative foot care. It was noted that he had controlled diabetes. Dermatology examination revealed intact skin with some dryness and peeling of the plantar surface. The examiner noted that there was possible tinea, and that hallux nails were mycotic. Lesser digit nails were normal. The assessment was onychomycotic nails times 10, tinea pedis, and NIDDM. In October 2000 the veteran testified before a Veterans Law Judge. The presiding Veterans Law Judge noted that upon looking at the veteran, he could see that he had a condition of the hands, and that the condition was obvious. The veteran indicated that he had a skin breakout in service in 1969 and 1970, and that he was told at the time that the breakout was an allergic reaction to fiberglass. He testified that he was assigned to the U.S.S. Cato Parish during his tour of duty in Vietnam. He saw Agent Orange being sprayed on the foliage in the river banks, and then torched. He testified that he had continuous problems with his toenails, and that it was previously diagnosed as athletes feet. In November 2000 the veteran was seen at VA for diabetes and related foot care. The skin was intact with calluses formation of the plantar surface. There was no swelling in the lower extremities, and no complaints of claudication. In January 2001 the claim was remanded by the Board to the RO for further development. Further development was also undertaken by the Board in November 2002 and February 2003. In January 2002 the RO granted entitlement to service connection for diabetes mellitus associated with herbicide exposure. A 10 percent evaluation was assigned from July 9, 2001. In November 2002 the veteran underwent VA examination for the skin. The examiner indicated that his claims file was investigated thoroughly with respect to his reported skin condition. His computer file was also evaluated. The examiner noted that the veteran had dermatitis of the forearms in service. This was noted twice. There was no further delineation as far as types of lesions or distribution of lesions. The examiner noted the veteran's history in detail. Physical examination revealed that there was a fine scale noted over the palms and dorsum of the hands. This extended up to the forearms, just above the wrists. His skin was very dry. There were many areas on the palmar aspects of the hands, especially over the index fingers that had cracked open. He had a very thick, heavy scale on the metaphalangeal joints especially. Some of those actually almost looked like callus formations. There were occasional pustular lesions. Those were few in number currently, but the veteran stated that at times those came in crops that were widespread and very painful. He had had no associated systemic or nervous manifestations from his skin disease. The examiner noted that pictures were taken of the typical lesions, the fine scale, and the cracking. Also, there was a picture of his foot. Those showed the significant findings of his examination that day. The diagnoses were: 1. Pustular psoriasis of the hands bilaterally. The feet had scaring that indicated they had been involved but had no current lesions. That condition had also been called acrodermatitis continua. This indicated a persistent rash of the hands and feet. The condition was very resistant to treatment. It was of unknown etiology. The examiner stated "this as likely as not began in his service in the military but is unrelated to defoliant exposure in Vietnam;" 2. Onychomycosis of the nails of the feet bilaterally, involving the great toenails more so than the remaining toenails. He was currently under treatment by a podiatrist and it seemed to be improving. In February 2003, an Addendum was provided for the record by the same staff physician who evaluated the veteran in November 2002. Therein, the examiner provided the following opinion: With review of my notes for his compensation and pension examination and review of his computer file, I feel that it is as likely as not that the onychomycosis of the feet bilaterally is related to his diabetes mellitus which is service-connected, thus, making his onychomycosis service- connected. Criteria General Service Connection The United States will pay compensation to any veteran disabled by disease or injury incurred in or aggravated by active military service, who was discharged or released under conditions other than dishonorable from the period of service in which the disease or injury was incurred, provided the disability is not the result of the person's own willful misconduct. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. The United States Court of Appeals for Veterans Claims (CAVC) has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for disease that is diagnosed after discharge from military service, when all of the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d) (2002); see Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2002). To show 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 a diagnosis including the word "chronic." 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). The CAVC has also reiterated that, alternatively, either or both of the second and third elements can be satisfied, under 38 C.F.R. § 3.303(b) (2002), by the submission of (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. McManaway v. West, 13 Vet. App. 60, 65 (1999) (citing Savage v. Gober, 10 Vet. App. 488, 495-97). The CAVC has further determined chronicity was not demonstrated when the sole evidentiary basis for the asserted continuous symptomatology was the sworn testimony of the appellant himself and when "no" medical evidence indicated continuous symptomatology. McManaway, 13 Vet. App. at 66. The CAVC stated that it clearly held in Savage that Section 3.303 does not relieve a claimant of the burden of providing a medical nexus. Rather, a claimant diagnosed with a chronic condition must still provide a medical nexus between the current condition and the putative continuous symptomatology. Service connection may also be granted for a disability proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2002); Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be granted for the degree of aggravation to a non-service connected disorder which is proximately due to or the result of a service- connected disorder. Allen v. Brown, 7 Vet. App. 439, 448-50 (1995). In secondary service connection cases VA medical examinations must consider both onset as well as aggravation theories of increased disability. Allen, 7 Vet. App. at 449- 50. Agent Orange In addition to law and regulations regarding service connection, the Board notes that a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) (2002) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during such period of service. 38 C.F.R. § 3.307(a) (2002). 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 period beginning on January 9, 1962, and ending on May 7, 1975. 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). 38 U.S.C. 1116(f) provides that 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. Section 201 of the "Veterans Education and Benefits Expansion Act of 2001." 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 period beginning on January 9, 1962, and ending on May 7, 1975. 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 following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was 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: Chloracne or other acneiform disease consistent with chloracne; Hodgkin's disease; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; Type II diabetes mellitus; Porphyria cutanea tarda; Prostate cancer; Multiple myeloma; Respiratory cancers (cancers of the lung, bronchus, larynx or trachea); or Soft tissue sarcoma. 38 C.F.R. § 3.309(e) (2002). These diseases shall become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other disease consistent with chloracne, and porphyria cutanea tarda 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) (2002). Evidence which may be considered in rebuttal of service incurrence of a disease listed in Sec. 3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. The expression "affirmative evidence to the contrary" will not be taken to require a conclusive showing, but such showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service. 38 C.F.R. § 3.307(d). The Secretary has also determined that there was no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted. 59 Fed. Reg. 57589 (1996) (codified at 38 C.F.R. §§ 3.307, 3.309) (2002). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit (CAFC) determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (1994). Competent medical evidence is required where the issue involves medical causation. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Analysis Preliminary Matter: Duty to Assist The Board initially notes that 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 VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other things, this law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supercedes the decision of the CAVC in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (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 filed as of that date. VCAA, Pub. L. No. 106-475, § 7(b), 114 Stat. 2096, 2099-2100 (2000), 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions) (West Supp. 2002). On August 29, 2001, the final regulations implementing the VCAA were published in the Federal Register. The portion of these regulations pertaining to the duty to notify and the duty to assist are also effective as of the date of the enactment of the VCAA, November 9, 2001. 66 Fed. Reg. 45,620, 45,630-45,632 (August 19, 2001) (now codified at 38 C.F.R. § 3.159). Judicial case law is inconsistent as to whether the new statute is to be given retroactive effect. The CAVC has held that the entire VCAA potentially affects claims pending on or filed after the date of enactment (as well as certain claims that were finally denied during the period from July 14, 1999, to November 9, 2000). See generally Holliday v. Principi, 14 Vet. App. 280 (2001); see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). That analysis would include cases that had been decided by the Board before the VCAA, but were pending in the CAVC at the time of its enactment. However, the CAFC has recently held that only section 4 of the VCAA (which eliminated the well-grounded claim requirement) is retroactively applicable to decisions of the Board entered before the enactment date of the VCAA, and that section 3(a) of the VCAA (covering duty-to-notify and duty-to-assist provisions) is not retroactively applicable to pre-VCAA decisions of the Board. See Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002) (stating that Dyment "was plainly correct"). Although the CAFC appears to have reasoned that the VCAA may not retroactively apply to claims or appeals pending on the date of its enactment, it stated that it was not deciding that question at this time. In this regard, the Board notes that VAOPGCPREC 11-00 appears to hold that the VCAA is retroactively applicable to claims pending on the date of its enactment. Further, the regulations issued to implement the VCAA are expressly applicable to "any claim for benefits received by VA on or after November 9, 2000, the VCAA's enactment date, as well as to any claim filed before that date but not decided by VA as of that date." 66 Fed. Reg. 45,629 (Aug. 29, 2001). Precedent opinions of the chief legal officer of the Department, and regulations of the Department, are binding on the Board. 38 U.S.C.A. § 7104(c) (West Supp. 2002). Therefore, for purposes of the present case, the Board will assume that the VCAA is applicable to claims or appeals pending before the RO or the Board on the date of its enactment. The Board notes that the duty to assist has been satisfied in this instance. The RO has made reasonable efforts to obtain evidence necessary to substantiate the veteran's claim, including any relevant records adequately identified by him as well as authorized by him to be obtained. 38 U.S.C.A. § 5103A (West Supp. 2002); see also McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Brown, 9 Vet. App. 341, 344 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). The veteran was notified in a March 2001 letter from the RO about the newly enacted VCAA. Furthermore, as previously noted, the Board has undertaken additional development on the claim, pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002), 38 C.F.R. § 19.9(a)(2) (2002). The completed development, as well as prior development of the claim by the RO, satisfy the duty to assist to the extent necessary to allow for a full grant of the benefit sought on appeal, such that additional development of the claim is unnecessary. See generally, Quartuccio v. Principi, 16 Vet. App. 183 (2002). In view of the foregoing, the veteran will not be prejudiced by the Board's actions. A remand for adjudication of his claim by the RO under the new law would only serve to further delay resolution of the claim. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Service Connection 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. § 3.313 (2002). The record establishes that the veteran had active duty in Vietnam, and all presumptions relating to Vietnam service apply to him. In this regard, the Board has considered the veteran's Agent Orange exposure claims under theories of entitlement other than presumptive service connection. While the evidence of record shows that the veteran served in Vietnam, and the veteran's testimony establishes possible exposure to Agent Orange while aboard the U.S.S. CADDO PARISH, the most probative evidence of record supports entitlement to service connection under direct and secondary service connection for the claimed skin disorders of the hands and feet respectively; as opposed to presumptive service connection based upon exposure to Agent Orange during the veteran's tour of duty in Vietnam. See Combee, supra; see also Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000) (consideration of the claims of entitlement to service connection irrespective of Agent Orange exposure is allowed). With regard to a skin disorder of the hands, the record shows that the veteran was treated in service for rashes, including, contact dermatitis of the forearms. The Board notes that the evidence of dermatological treatment and VA diagnosis of pustular psoriasis of the hands bilaterally establishes the veteran has a current skin disorder of the hands. Moreover, the evidentiary record shows that the current skin disorder had its onset in service or is otherwise related to active service. Competent evidence of a nexus between the veteran's current skin disorder and his active service was provided by the VA examiner in November 2002. The examiner opined that it was as likely as not that the veteran's pustular psoriasis of the hands began in service, but that it was not related to defoliant exposure in Vietnam. This nexus opinion, evidence of current disability, and the evidence of record showing continuous treatment for a skin condition of the hands, establishes entitlement to service connection for a skin disorder of the hands on a direct basis. With regard to a skin disorder of the feet, the evidence of record does not show that the veteran's foot disability, most currently diagnosed as onychomycosis of the nails of the feet bilaterally, began while he was in the service. He had rashes of the forearm in service, but diagnosis and treatment for onychomycosis of the nails of the feet was not indicated in service. Rather, VA examination and treatment records in the claims file contain adequate documentation of current skin disability of the feet and treatment for onychomycosis resulting from diabetes. During the course of this appeal, service connection was established for diabetes mellitus. The Board has again considered the opinion of the VA examiner in November 2002 and February 2003, wherein he opined that it was as likely as not that the current onychomycosis of the nails of the feet bilaterally was related to the veteran's service-connected diabetes mellitus. The Board considers that this medical opinion is from a competent medical professional who had reviewed the veteran's entire medical history and claims file. Accordingly, the evidentiary record supports a grant of entitlement to service connection for a skin disorder of the feet as secondary to service-connected diabetes mellitus. ORDER Entitlement to service connection for a skin disability of the hands is granted. Entitlement to service connection for a skin disability of the feet as secondary to service-connected diabetes mellitus is granted. ____________________________________________ RONALD R. BOSCH 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.