Citation Nr: 0314885 Decision Date: 07/07/03 Archive Date: 07/10/03 DOCKET NO. 01-10 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for chloracne, or other acneform disease consistent with chloracne, claimed as a residual of Agent Orange exposure in service. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Gentile, Associate Counsel INTRODUCTION The veteran's active military service extended from December 1965 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2000 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In December 2002, a hearing was held before Bettina S. Callaway, who is the Veterans Law judge making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7107(b) (c) (West 2002). FINDINGS OF FACT 1. VA has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran had active military service in the Republic of Vietnam during the Vietnam era. 3. The service medical records do not show any diagnosis of chloracne or other acneform disease consistent with chloracne during service or within the first year after the veteran left the Republic of Vietnam. 4. There is a current medical diagnosis of chloracne or other acneform disease consistent with chloracne. 5. There is competent medical evidence that relates the veteran's chloracne to Agent Orange exposure during military service. CONCLUSION OF LAW Chloracne, or other acneform disease consistent with chloracne, was incurred in active military service. 38 U.S.C.A. §§ 101(16), 1110, 1116, 5107(a) (West 2002); 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(e) (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA) codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and implementing regulations 66 Fed. Reg. 45, 620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.316(a)). The VCAA eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the United States Court of Veteran's Appeals 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 held that VA cannot assist in the development of a claim that is not well- grounded. The VCAA also imposes a significant duty to assist an appellant with his claim and to provide him with notice of the evidence needed to support his claim. The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). As the veteran's claim will be granted, no useful purpose would be served by delaying the adjudication of the veteran's claim further to conduct additional development pursuant to the VCAA. Also, because the veteran's claim will be granted, no useful purpose would be served by remanding this case pursuant to the recent holding in Disabled American Veterans v. Sec'y of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003). Thus, the Board finds that further development is not warranted. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110 (West 2002). In addition, service connection may 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) (2002). VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for the following disorders: chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and, soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). Presumptive service connection for these disorders as a result of Agent Orange exposure is warranted if the requirements of Sec. 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2002). Chloracne or other acneform disease consistent with chloracne may be presumed to have been incurred during active military service as a result of exposure to Agent Orange if it is manifest to a degree of 10 percent within the first year after the last date on which the veteran was exposed to Agent Orange during active service. 38 C.F.R. § 3.307(a)(6)(ii) (2002). The governing law provides that 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 . . . 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) (West 2002). If the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (2002) are also not satisfied, then the veteran's claim shall fail. 38 U.S.C.A. § 1113 (West 2002); 38 C.F.R. § 3.307(d), (2002). The Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for: hepatobiliary cancers; nasal and/or nasopharyngeal cancer; bone and joint cancer; breast cancer; female reproductive cancers; urinary bladder cancer; renal cancer; testicular cancer; leukemia, other than chronic lymphocytic leukemia (CLL); abnormal sperm parameters and infertility; Parkinson's Disease and Parkinsonism; Amyotrophic Lateral Sclerosis (ALS); chronic persistent peripheral neuropathy; lipid and lipoprotein disorders; gastrointestinal and digestive disease including liver toxicity; immune system disorders; circulatory disorders; respiratory disorders (other than certain respiratory cancers); skin cancer; cognitive and neuropsychiatric effects; gastrointestinal tract tumors; brain tumors; AL amyloidosis (also referred to as primary amyloidosis); endometriosis; adverse effects on thyroid homeostasis; and, any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 68 Fed.Reg. 27630 - 27641 (May 20, 2003); see also Notice, 67 Fed. Reg. 42600 (June 24, 2002); Notice, 66 Fed. Reg. 2376 (Jan. 11, 2001); Notice, 64 Fed.Reg. 59232 (November. 2, 1999). The Board's adjudication of the veteran's appeal relies on its assessment of the credibility and probative value of the proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161 (1993). If the weight of the evidence supports the claim or if the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim, the appellant prevails. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case the veteran claims that he developed a skin disorder as a result of exposure to Agent Orange in service. The veteran's service personnel records reveal that he was stationed in Vietnam. Since the evidence shows that the veteran served in the Republic of Vietnam during the Vietnam era, he is presumed to have been exposed to herbicide agents, specifically, Agent Orange, during this service. The RO has obtained the veteran's service medical records. His service medical records appear to be complete and consist of entrance and separation examination reports as well as some treatment records. The veteran's service medical records do not reveal any complaints of, or treatment for, any skin disorder at any time during his period of active service. The veteran's November 1967 separation examination indicated normal skin with no noted abnormalities. Similarly, the veteran did not disclose having any skin disorder, on the accompanying Report of Medical History. According to a VA Hospital Summary, dated in July 1970, the veteran received inpatient treatment, in June and July 1970, during which he was diagnosed with acne vulgaris. He was diagnosed again with acne vulgaris, as indicated by a VA Hospital Summary dated in March 1971. In addition, the veteran sought treatment in 1972; his skin disorder was noted once again on a VA Consultation Sheet, dated in December 1972. In September 1984, the veteran received an Agent Orange examination, during which the examining physician recorded observations of Cystic Acne. In December 1996, a VA examination of the veteran was conducted, showing residual scarring from previous acneform disease from Vietnam. The examining physician noted that his observations were compatible with chloracne, but were not diagnostic. The examining physician conducted another VA examination of the veteran in April 2000. During this examination, he diagnosed the veteran with acne compatible with chloracne, involving primarily the face, neck and posterior aspects of the ears. The veteran testified before a RO Decision Review Officer, in March 2001, about his skin condition. He claimed that he suffered from a skin disorder during his service in Vietnam. He also testified that within 3 months after he returned from service in Vietnam, his skin disorder reappeared. The veteran further testified that he sought private treatment for his skin disorder as early as 1968 or 1969; however, due to the death of the physician, he was unable to obtain his medical records. Finally, the veteran testified that as of the date of the hearing, he continued to suffer from a skin disorder. The veteran submitted several photographs of himself, which he claimed were taken prior to serving in Vietnam. He also submitted photographs taken in 1968, following his return from Vietnam. The photograph identified by the veteran as taken prior to his service in Vietnam shows him with a clear complexion. By contrast, the photographs the veteran claimed were taken in 1968, following his return from service in Vietnam, show acne scars on his face. In addition to the photographs, the veteran submitted written statements from his wife and friends, which attest to the veteran's clear complexion prior to his service in Vietnam. In December 2002, the veteran presented sworn testimony at a hearing before the undersigned member of the Board. He testified that he developed a skin disorder, during his service in Vietnam. The veteran claimed that he was treated for this disorder in Vietnam, but that it recurred approximately 3 months after he returned from his tour of duty in Vietnam. The veteran further claimed that as of the date of the hearing, his skin disorder persisted. The Board finds the veteran has met the regulatory presumption of active service in the Republic of Vietnam during the Vietnam era; he is presumed to have been exposed to Agent Orange. He has presented competent medical evidence in the form of VA examination reports that he currently suffers from chloracne or another acneform disease consistent with chloracne. However, no competent medical evidence has been submitted demonstrating the veteran's chloracne was present during active military service or that it manifested to a degree of 10 percent within the first year after the last date on which the veteran was exposed to Agent Orange during active service. 39 C.F.R. § 3.307(a)(6)(ii) (2002). As a result, service connection for chloracne on a presumptive basis must be denied. 38 C.F.R. § 3.309(e) (2002). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 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 (Fed.Cir. 1994). The court has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). In the present case, the veteran served in the Republic of Vietnam during the Vietnam era and is presumed to have been exposed to Agent Orange during that time. There are current medical diagnoses that the veteran suffers from chloracne or an acneform disease consistent with chloracne. In addition, the medical evidence appears to relate the veteran's skin disorder to his service in Vietnam. The veteran also testified to his skin disorder under oath. Furthermore, he has submitted written statements from his wife and friends, as well as photographs, to support his claim. Based upon the foregoing evidence, the veteran meets all the requirements for service connection on a direct basis, and, therefore, service connection for chloracne is granted. ORDER Service connection for chloracne or an acneform disease consistent with chloracne as a residual of Agent Orange exposure in service is granted. ____________________________________________ BETTINA S. CALLAWAY 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.