Citation Nr: 0307825 Decision Date: 04/24/03 Archive Date: 04/30/03 DOCKET NO. 02-04 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for porphyria cutanea tarda. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. M. Daley, Counsel INTRODUCTION The veteran had active service from February 1968 to November 1986, to include a period of service in the Republic of Vietnam for which he is in receipt of combat decorations. This matter came before the Board of Veterans' Appeals (Board) on appeal of a January 2001 rating decision from the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction over the appeal was thereafter transferred to the Columbia, South Carolina, RO. After receipt of the case at the Board, the Board developed the record pursuant 38 C.F.R. § 19.9(a)(2) (2002). The evidence obtained pursuant to such development is supportive of the veteran's claim. Moreover, the Board has determined that the evidence and information currently of record are sufficient to substantiate the veteran's claim and that, therefore, further delay of the appellate process to provide the veteran and his representative with notice of the evidence developed by the Board and an opportunity to submit additional evidence and argument would serve no useful purpose. FINDINGS OF FACT 1. All information and evidence necessary for an equitable disposition of the issue decided herein have been obtained. 2. Porphyria cutanea tarda originated while the veteran was serving on active duty. CONCLUSION OF LAW Porphyria cutanea tarda was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) During the pendency of the veteran's claim, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law and codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). In additions, regulations implementing the VCAA were published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2002). The liberalizing provisions of the VCAA and the implementing regulations are applicable to the veteran's claim. The Act and the implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well-grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. As explained below, the Board has found the evidence and information currently of record sufficient to substantiate the veteran's claim. Therefore, no further action is required to comply with the VCAA and the implementing regulations. Legal Criteria To establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. On December 27, 2001, the Veterans Education and Benefits Expansion Act of 2001 was enacted. See Pub. L. No. 107-103, 115 Stat. 976 (2001). This law made substantive changes to 38 U.S.C.A. § 1116 pertaining to presumption of service connection for diseases associated with exposure to certain herbicide agents. Effective January 1, 2002, a veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides. See 66 Fed. Reg. 23168 (May 8, 2001) (now codified at 38 C.F.R. §§ 3.307, 3.309 (2002)). 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 veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: chloracne or other acneform disease consistent with chloracne, Hodgkin's disease, type II diabetes mellitus, multiple myeloma, non- Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e). Porphyria cutanea tarda must become manifest to a degree of 10 percent or more within a year 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). Service connection may be granted for a disease initially 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background Service medical records reflect that in July 1981 the veteran presented with a history of contact dermatitis on his left arm after exposure to concrete. There was evidence of pruritis on his hands. The assessment was an allergic reaction, treated with hydrocortisone cream and Benadryl. No further service entries reflect complaints of a skin rash and no skin disability was noted at the time of discharge. After service the veteran claimed entitlement to service connection for a skin disorder, on the basis of in-service herbicide exposure. He claimed lesions on his arms and face. Post-service VA and private treatment records reflect periodic note of skin lesions and ulcerations beginning in the 1990s. In April 2000 the veteran was noted to have chronic reoccurring skin lesions over both hands. The veteran indicated such were painful and gave a history of having had them removed in the past. He expressed the belief that they were due to Agent Orange exposure. Another April 2000 entry describes the lesions as hyperkeratotic, dry and without drainage. One entry, dated in June 2000, notes the veteran's history of having been directly sprayed by Agent Orange during service, as well as having possibly eaten or drank foods contaminated with Agent Orange. The veteran also indicated having had skin problems since service, to include skin cancers. An August 2000 entry notes the veteran to have blisters and shows a diagnosis of questionable porphyria cutanea tarda. A specimen was sent for biopsy. Another August 2000 note indicates that diagnostic test results were compatible with porphyria cutanea tarda in a veteran exposed to Agent Orange. Other dermatology notes include reference to squamous cell carcinoma. The veteran appeared for a VA examination in July 2001. The examiner reviewed the claims file and noted that the veteran had been diagnosed with contact dermatitis in 1981. Examination revealed a chronic skin condition over most of the veteran's body, described as small blister-type lesions that would burst and form a scab that hardens and becomes a shallow ulceration. The diagnosis was porphyria cutanea tarda. The examiner opined it was possible that the onset of the condition was in 1981 when the veteran was treated for "contact dermatitis." He also stated that if it was possible that Agent Orange exposure could be linked to the condition, then the onset could possibly have been at any time after the Agent Orange exposure. Pursuant to the development ordered by the Board, the veteran presented for another VA examination in March 2003. The examiner noted review of the veteran's claims files. The examiner cited to the veteran's history of having served in Vietnam and having been exposed to "more than one kind of chemical over there" to include Agent Orange. The examiner also noted that the veteran had been diagnosed with contact dermatitis in 1981, and that more than one year after his release from service the veteran had been diagnosed with porphyria cutanea tarda, confirmed by skin biopsy. The examiner noted that the veteran currently had multiple skin lesions in various stages of evolution. The assessment was porphyria cutanea tarda. The examiner stated that it was possible that the onset of the condition was in 1981 when the veteran was diagnosed with contact dermatitis, but that porphyria cutanea tarda was a very uncommon illness that would be difficult to confuse with contact dermatitis. The examiner noted that the only way to sort out the two diagnoses would be via a skin biopsy and also noted that such would not be routine for a person presenting with what appeared to be contact dermatitis in 1981. The examiner concluded there was no way to be certain but that it was at least as likely as not that the skin lesions noted in 1981 were porphyria cutanea tarda and at least as likely as not that such was related to Agent Orange. The examiner noted that porphyria cutanea tarda could sometimes be an inherited disease, and that such could be determined by looking for specific chromosomal abnormalities, but identified no current evidence of such in the veteran's case. Analysis As set out above, service records document one complaint of skin problems during service. There is no diagnosis of porphyria cutanea tarda shown in service records. Instead, the veteran's symptoms of skin lesions during service were opined to be an allergic reaction or contact dermatitis, without subsequent complaints or diagnoses noted in later service records or on the report of examination completed at discharge. The first post-service documentation of the veteran's multiple skin complaints are shown in this record in medical records dated in the 1990s. Such records reflect skin symptoms to include an ulcerative-type rash over the body causing lesions. Based on medical examination and biopsy testing, the veteran's post-service skin lesions have been attributed to a diagnosis of porphyria cutanea tarda. First, the August 2000 outpatient entries note that the biopsy findings were consistent with porphyria cutanea tarda in an Agent Orange exposed veteran. Also, the 2001 VA examiner stated that it was at least as likely as not that the 1981 in-service skin complaints were manifestations of porphyria cutanea tarda related to prior herbicide exposure. Finally, the March 2003 VA examiner agreed that it was at least as likely as not that the onset of porphyria cutanea tarda was in 1981 when the veteran was diagnosed with contact dermatitis. Although the March 2003 examiner noted the possibility of a hereditary problem as the cause of porphyria cutanea tarda, and although both the 2001 and 2003 examiners noted the lack of proof, such as any in-service biopsy, to confirm the onset date of porphyria cutanea tarda, both agreed that there was no competent medical basis in the current record on which to dissociate currently diagnosed porphyria cutanea tarda from service. As such, and resolving any benefit of the doubt in the veteran's favor, the Board finds that service connection for porphyria cutanea tarda is warranted. ORDER Entitlement to service connection for porphyria cutanea tarda is granted. Shane A. Durkin 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.