Citation NR: 9800225 Decision Date: 01/06/98 Archive Date: 01/13/98 DOCKET NO. 93-05 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a skin disorder, variously diagnosed as actinic keratoses, skin cancer, and dermatoheliosis with cutis rhomboidalis nuchae, claimed as secondary to Agent Orange exposure during service and on a direct basis. 2. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.A. Howell, Associate Counsel INTRODUCTION The veteran served on active duty from August 1948 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to service connection for the various skin disorders and denied a claim for a total rating based on individual unemployability. The Board notes that the issue of entitlement for skin disorders will be dealt with both as residuals of Agent Orange exposure, and on applicable primary and/or presumptive bases. On appeal, the Board remanded the case to the RO for further developments by decisions dated in November 1994 and May 1996. The requested developments have been accomplished and the case is now ready for appellate review. The issue of entitlement to service connection for a skin disorder, variously diagnosed as actinic keratoses, skin cancer, and dermatoheliosis with cutis rhomboidalis nuchae, claimed as secondary to Agent Orange exposure during service and on a direct basis will be discussed below. Due to the decision of the Board to grant entitlement to service connection for a skin disorder, which the RO has not yet had an opportunity to evaluate, and in light of the veteran’s claim for a total rating based on his service-connected disabilities, the remaining issue of entitlement to a total rating based on individual unemployability will be discussed only in the REMAND section of this Board decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that he is entitled to service connection for the residuals of Agent Orange exposure to include various skin disorders claimed on appeal. Specifically, he maintains that he was exposed to Agent Orange during his service in Vietnam and as a result of this exposure acquired the skin disorders. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim for entitlement to service connection for a skin disorder, variously diagnosed as actinic keratoses, skin cancer, and dermatoheliosis with cutis rhomboidalis nuchae, claimed as secondary to Agent Orange exposure during service is well grounded, and the claim is accordingly denied. It is further the decision of the Board that the equal balance of the evidence favors the grant of service connection for a skin disorder, variously diagnosed as actinic keratoses, skin cancer, and dermatoheliosis with cutis rhomboidalis nuchae on a direct basis. FINDINGS OF FACT 1. The RO has developed all evidence necessary for an equitable disposition of the veteran’s claim. 2. The veteran had active service in the Republic of Vietnam during the Vietnam era. 3. The veteran’s currently diagnosed actinic keratoses, skin cancer, and dermatoheliosis with cutis rhomboidalis nuchae are not recognized by VA as causally related to exposure to herbicide agents used in Vietnam. 4. There is no medical opinion, or other competent evidence, linking the veteran’s claim of a skin disorder, variously diagnosed as actinic keratoses, skin cancer, and dermatoheliosis with cutis rhomboidalis nuchae with exposure to Agent Orange during active duty service. 5. The veteran has not presented a plausible claim for entitlement to service connection for a skin disorder, variously diagnosed as actinic keratoses, skin cancer, and dermatoheliosis with cutis rhomboidalis nuchae as a result of Agent Orange exposure. 6. The veteran was treated for skin lesions during and immediately following service which recent competent evidence has attributed to sun exposure; he is currently treated for similar pathology. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well-grounded claim for entitlement to service connection for a skin disorder, variously diagnosed as actinic keratoses, skin cancer, and dermatoheliosis with cutis rhomboidalis nuchae, claimed as secondary to Agent Orange exposure during service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 1991 & Supp. 1997); 38 C.F.R. §§ 3.303, 3.307(a), 3.309 (1996). 2. Resolving the benefit of the doubt in favor of the veteran, a skin disorder, variously diagnosed as actinic keratoses, skin cancer, and dermatoheliosis with cutis rhomboidalis nuchae, was incurred during active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1997); 38 C.F.R. § 3.303 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1997). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1996). However, continuity of symptoms is required where the condition in service is not, in fact, chronic or where diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (1996). In addition, 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 U.S.C.A. § 1113(b) (West 1991 & Supp. 1997); 38 C.F.R. § 3.303(d) (1996). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In addition to the regulations governing entitlement to service connection outlined above, 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 (Agent Orange), unless there is affirmative evidence to establish that he or she was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (1996). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected, if the requirements of 38 C.F.R. § 3.307(a) (1996) are met, even if there is no record of such disease during service: chloracne or other acneform diseases 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 lungs, bronchus, larynx, or trachea), and soft-tissue sarcomas. 38 C.F.R. § 3.309(e) (1996). Chloracne, or other acneform disease, 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) (1996). If the rebuttable presumptions of 38 C.F.R. § 3.307(d) (1996) are also not satisfied, then the veteran’s claim shall fail. 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 any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 (1994). 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). However, the United States Court of Veterans Appeals has held that where the issue involves medical causation, competent medical evidence that shows that the claim is plausible or possible is required to set forth a well-grounded claim. Caluza v. Brown, 7 Vet. App. 498 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). I. Entitlement to Service Connection for a Skin Disorder, Variously Diagnosed as Actinic Keratoses, Skin Cancer, and Dermatoheliosis with Cutis Rhomboidalis Nuchae, Claimed as Secondary to Agent Orange Exposure During Service The threshold question which must be resolved with regard to each claim is whether the veteran has presented evidence that each claim is well grounded; that is, that each claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A plausible claim is “one which is meritorious on its own or capable of substantiation.” Black v. Brown, 10 Vet. App. 279 (1997). The duty to assist under 38 U.S.C.A. § 5107(a) is triggered only after a well-grounded claim is submitted. See Anderson v. Brown, 9 Vet. App. 542, 546 (1996). Evidentiary assertions by the person who submits a claim must be accepted as true for the purposes of determining whether a claim is well-grounded, except where the evidentiary assertion is inherently incredible or beyond the competence of the person making the assertion. See King v. Brown, 5 Vet. App. 19 (1993). Where the determinative issue is factual rather than medical in nature, competent lay testimony may constitute sufficient evidence to well ground the claim. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). For a service-connected claim to be well-grounded, there must be a medical diagnosis of current disability, lay or medical evidence of in-service incurrence or aggravation of a disease or injury, and medical evidence of a nexus between the in-service injury or disease and current disability. See Epps v. Brown, 9 Vet. App. 341, 343-44 (1996), appeal docketed, No. 97-7014 (Fed. Cir. Nov. 25, 1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). The veteran contends that he acquired skin disorders as a result of his exposure to Agent Orange during active service. Service medical records reveal that he sought treatment for dermatitis, erythematous lesions, tinea cutae, groin rash, furuncles, early blood cell cancer in a facial lesion, and cellulitis. His separation examination report dated in September 1969 demonstrates a normal clinical evaluation of his skin and lymphatic systems. Post service medical records reveal treatment through the years primarily for actinic keratoses, but also seborrheic dermatitis, basal cell carcinoma of various skin lesions, and folliculitis. Significantly, none of the medical examiners attributed the veteran’s skin disorders to Agent Orange exposure. In a VA examination report dated in September 1992, he was diagnosed with an active actinokeratoses skin condition. At a personal hearing in November 1992, the veteran testified that he had been receiving treatment for a skin condition since he was discharged from service. He related that he was sprayed with Agent Orange and experienced burns of his face and arms at the time. He observed that he was treated for ringworm immediately after service separation and has continued to receive treatment since then. In a February 1995 VA examination, he was found to have extensive sun damage with several ill-defined, pink, slightly keratotic patches with fine white scales consistent with actinic keratoses. Finally, in the most recent VA examination report dated in July 1996, the examiner diagnosed dermatoheliosis, history of melanoma, history of skin cancer, actinic keratosis, history of tinea corporis, cutis rhomboidalis nuchae, and acneiform eruptions, which may have been consistent with chloracne. In the discussion, the examiner reflected that the lesions on the veteran’s posterior neck, which could be consistent with a form of chloracne, had been associated with Agent Orange. However, in an addendum to the most recent VA examination dated in January 1997, the examiner observed that the veteran had a history of acneiform lesions before, during, and after service. The examiner reflected that while lesions of the chloracne may also appear like those present, “chloracne” would resolve with removal of the offending agent (i.e. Agent Orange). He surmised that the acneiform lesions were not related to service or to Agent Orange. In conclusion, the examiner asserted that neither the history of tinea corposis, acneiform lesions, dermatoheliosis, cutis rhomboidalis nuchae, history of skin cancers, or actinic keratosis were related to Agent Orange exposure. After a review of the evidence, the Board must conclude that the evidence does not demonstrate that a skin disorder, variously diagnosed as actinic keratoses, skin cancer, and dermatoheliosis with cutis rhomboidalis nuchae, due to Agent Orange exposure is currently shown. Since there is no evidence that the veteran’s skin disorders are related to Agent Orange exposure, the Board must accordingly find that a claim for service connection for residuals of Agent Orange exposure to include a skin disorder, variously diagnosed as actinic keratoses, skin cancer, and dermatoheliosis with cutis rhomboidalis nuchae is not well grounded. Further, based on the medical evidence, any in-service skin rash is shown to be acute and transitory. In the addendum to the most recent VA examination, the examiner specifically noted that the veteran presented to military doctors with numerous erythematous eruptions while in service. He opined that these conditions were transient and were not related to any of the veteran’s current skin disorders. Thus, the evidence does not establish a causal link between his skin rash in-service and his current skin disorders. The claim for entitlement to service connection for skin rashes, secondary to Agent Orange exposure must also be denied because neither actinic keratoses, skin cancer, or dermatoheliosis with cutis rhomboidalis nuchae are diseases which warrant service connection on a presumptive basis for exposure to Agent Orange. 38 C.F.R. § 3.309 (1996). Because actinic keratoses, skin cancer, and dermatoheliosis with cutis rhomboidalis nuchae are excluded from the diseases for which presumptive service connection on the basis of Agent Orange exposure is warranted, the claim must be denied as it is not well grounded. II. Entitlement to Service Connection for a Skin Disorder, Variously Diagnosed as Actinic Keratoses, Skin Cancer, and Dermatoheliosis with Cutis Rhomboidalis Nuchae on a Direct Basis Initially, the Board finds that the veteran's claim as to this issue is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1997); that is, he has presented a claim that is plausible. Further, he has not alleged nor does the evidence show that any records of probative value, which could be associated with the claims folder and that have not already been sought, are available. The Board accordingly finds that the duty to assist the veteran, as mandated by § 5107(a), has been satisfied. As noted above, not only can service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service, but 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 U.S.C.A. § 1113(b) (West 1991 & Supp. 1997); 38 C.F.R. § 3.303(d) (1996). A review of the veteran's service medical records reveals no complaints, symptomatology, or findings of actinic keratoses, skin cancer, or dermatoheliosis with cutis rhomboidalis nuchae. The September 1969 separation examination report demonstrates a normal clinical evaluation of the veteran’s skin and lymphatic systems. It is noted that some skin treatment was rendered during service, and that shortly after separation from service, there was some treatment of skin pathology. There is evidence of some continuing treatment in later years as well. Following remand on appeal from the Board in May 1996, the veteran underwent a VA dermatological examination for the purpose of ascertaining the nature, extent of severity, and etiology of any skin disorders present. The examiner was specifically requested to render an opinion as to whether it was at least as likely as not that any skin disorder was related to active service, Agent Orange exposure, and/or sun exposure in service. In a VA examination report dated in July 1996, the veteran related that he had a history of fair skin that was easily burned as a child and young adult. During his basic training, he was consistently re-exposed to long periods of sun exposure and suffered frequent further sunburns. He also related a history of exposure to Agent Orange spraying. He denied any skin problems in service other than sunburns and Agent Orange exposure. However, when he returned to the United States in 1970, he developed erythematous scaly eruptions on his upper extremities, which was diagnosed as tinea corporis. Through the years, he received treatment for numerous actinic keratosis, and several skin cancers had been excised. He also had a history of an open blackhead lesion and acneiform lesions on his neck. Physical examination revealed type II skin, which denoted fair skin which would be expected to burn rather than tan on sun exposure. He had dermatoheliosis changes about the face and upper extremities (from sun exposure). The upper extremities showed numerous flat, scaly gray and erythematous plaques, with numerous well-healed hypopigmented scars. The neck reflected severe solar elastic changes with cutis rhomboidalis nuchae and numerous open comedones. No skin cancers were identified and no lesions consistent with fungal infection were noted. The diagnoses were dermatoheliosis secondary to years of sun exposure, history of melanoma, history of skin cancer, actinic keratosis, history of tinea corporis, cutis rhomboidalis nuchae, and acneiform eruptions, which may have been consistent with chloracne. On further discussion, the VA examiner noted that actinic keratosis and dermatoheliosis were certainly sun related. As one-third of the veteran’s life was spent in the military, the examiner assumed that one-third of his sun exposure was in the military and that the skin disorders were most likely to some degree related to sun exposure while in the military. In an addendum dated in January 1997, the examiner again stressed that dermatoheliosis, cutis rhomboidalis nuchae, skin cancers, and actinic keratosis were all known to be related to sun exposure. Since one-third of the veteran’s life time sun exposure occurred in service, the examiner concluded that one-third of the disorders were related to service. It is noted that this opinion was rendered after a review of the veteran’s claims folder (currently in 2 volumes). The Board finds that the evidence is in relative equipoise as to whether the veteran’s skin disorders were the result of events or occurrences on active duty. There is uncontroverted medical evidence that the skin disorders on appeal are related to sun exposure. With 22 years of active duty service, it can be assumed that the veteran spent nearly one-third of his life exposed to the sun on active duty. On the other hand, he spent over two-thirds of his life not on active duty and was known to burn easily before entering into active duty. Moreover, although the veteran has been treated for actinic keratosis since the mid-1970s, approximately five years after service separation; he was not treated for skin cancers until at least 17 years after service separation and was not diagnosed with dermatoheliosis until a VA examination in 1996, nearly 26 years after service separation. Nonetheless, based on the finding by the VA examiner that the skin disorders are, in part, a result of sun exposure during service, the Board finds that the evidence is in relative equipoise as to whether the veteran’s skin disorders incurred as a result of active duty service. Consequently, reasonable doubt should be resolved in favor of the veteran and service connection for a skin disorder, variously diagnosed as actinic keratoses, skin cancer, and dermatoheliosis with cutis rhomboidalis nuchae, on a direct basis is, accordingly, granted. ORDER Service connection for a variously diagnosed skin disorder as secondary to Agent Orange exposure is denied. With resolution of reasonable doubt in the appellant’s favor, service connection for a variously diagnosed skin disorder is granted as incurred as a result of service, the appeal is granted to this extent. REMAND The Board has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1997); 38 C.F.R. § 3.159 (1996). This duty to assist involves obtaining relevant medical reports and examinations where indicated by the facts and circumstances of the individual case. See Abernathy v. Principi, 3 Vet. App. 461 (1992); Roberts v. Derwinski, 2 Vet. App. 387 (1992); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Littke v. Derwinski, 1 Vet. App. 90 (1990); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The RO denied entitlement to a total rating based on individual unemployability by rating decision dated in July 1995. However, because of the grant of an additional service-connected disability as described above, the veteran is potentially eligible to receive a higher schedular evaluation if found to be unemployable by reason of all his service-connected disorders. 38 C.F.R. § 4.16 (1996). Moreover, the evidence associated with the claims file is inadequate for determining the degree of social and industrial inadaptability attributable to the service- connected disabilities. Therefore, the Board is of the opinion that a social and industrial survey is needed to evaluate the veteran’s current claim. Further, the Board notes that there is no current VA examination associated with the claims file regarding the veteran’s other service- connected disabilities and it is the Board’s opinion that an examination is necessary to determine the current status of all his service-connected disabilities. In view of the foregoing, this case is REMANDED for the following actions: 1. The RO should contact the veteran, with the assistance of his representative, to determine the names, addresses, and dates of treatment by any physicians, hospitals, or treatment centers (private, VA or military) for his service-connected disabilities not already associated with the claims file. After obtaining the appropriate signed authorization for release of information forms from the veteran, the RO should contact each physician, hospital, or treatment center specified by the veteran to obtain any and all medical or treatment records or reports relevant to the above mentioned claims. All pieces of correspondence, as well as any medical or treatment records obtained, should be made a part of the claims folder. If private treatment is reported and those records are not obtained, the veteran and his representative should be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 38 C.F.R. § 3.159 (1996). 2. The RO should then schedule the veteran for a social and industrial survey. Included should be information concerning his most recent employment and the current status of his employability, including the reasons for leaving his last employment, as appropriate. Contact with the employers should be made as indicated, and the assistance of the veteran in obtaining this information should be requested as needed. 3. The veteran should be scheduled for the appropriate VA examinations to clarify the degree of impairment caused by all the service-connected disorders. All indicated tests should be performed and all clinical findings, including range of motion, should be reported in detail. The claims folder should be made available to the examiner(s) for review prior to the examination(s). All of the veteran's service-connected disabilities should be examined, including, but not limited to, coronary artery disease, hypertension, osteoarthritis, herniated nucleus pulposus, diabetes, otitis externa, bilateral hearing loss, and a skin disorder. The examiner(s) should also generally address the extent of functional and industrial impairment from the veteran's identified disabilities. See Gary v. Brown, 7 Vet. App. 229 (1994). If it is determined that additional specialist examination(s) are needed, such examination(s) should be scheduled and conducted. 4. Following completion of the above actions, the RO must review the claims file and ensure that all of the foregoing development have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the examination report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1996) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Ardison v. Brown, 6 Vet. App. 405, 407 (1994); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). 5. Thereafter, the RO should readjudicate the issue of a total disability rating based on individual unemployability due to service-connected disabilities. If the benefits sought are not granted, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond thereto. 6. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1996) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Thereafter, the case should be returned to the Board for further appellate consideration. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this claim. No action is required of the veteran until he is notified. MICHAEL D. LYON Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1996). - 2 -