Citation Nr: 9811634 Decision Date: 04/15/98 Archive Date: 05/06/98 DOCKET NO. 94-49 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for chloracne as a result of Agent Orange exposure. 2. Entitlement to service connection for seborrheic dermatitis and tinea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nicholas M. Auricchio, Associate Counsel INTRODUCTION The veteran served on essentially continuous active duty from June 1946 to June 1949 and from October 1951 to November 1969. This matter is currently before the Board of Veterans’ Appeals (BVA or Board) on appeal from June 1988 and May 1994 decisions of the Department of Veteran Affairs (VA) Regional Office (RO) in San Diego, California, which respectively denied service connection for seborrheic dermatitis verses tinea and denied service connection for a skin disorder, claimed as a rash on the arm and face, based on exposure to Agent Orange. The issues on appeal are styled as indicated on the March 1995 Supplemental Statement of the Case. The Board notes that the veteran, in correspondence received in February 1996, raised the issues of entitlement to service connection for a sore throat disorder, dizziness, fainting spells and blackouts. As these issues have not been developed or certified for the BVA’s review, they are not herein addressed, but are referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that service connection for chloracne is warranted as this skin disorder is the result of Agent Orange exposure in Vietnam. He further asserts that he is entitled to service connection for seborrheic dermatitis and tinea, as this disorder either began during service or is due to exposure to Agent Orange in Vietnam. He maintains that service medical records show that he had a body rash while on active duty and that there were three or four other times he went on sick call for this disorder. 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 file. 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 preponderance of the evidence supports the claim for service connection for chloracne as a result of Agent Orange exposure. It is further the decision of the Board that the veteran has not met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim for service connection for seborrheic dermatitis and tinea is well grounded. FINDINGS OF FACT 1. The veteran has a current diagnosis of chloracne and has presented competent medical evidence that his chloracne is due to his exposure to Agent Orange while on active duty. 2. There is no competent medical evidence of a nexus between the veteran’s seborrheic dermatitis and tinea disorder and service, including his exposure to Agent Orange. CONCLUSIONS OF LAW 1. Chloracne was incurred during active service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (1997). 2. The veteran’s claim for service connection for a seborrheic dermatitis and tinea disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1997). If a condition noted during service is not shown to be chronic, then continuity of symptomatology after service generally is required for service connection. 38 C.F.R. § 3.303(b) (1997). 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 C.F.R. § 3.303(d) (1997). Further, if a veteran were exposed to a herbicide agent during active military service and chloracne becomes manifest to a degree of 10 percent or more within a year from the last date on which the veteran was exposed to the herbicide agent, such disease shall be presumed to have been incurred in the service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1997). The threshold question which must be answered in this case, however, is whether the veteran has presented well-grounded claims for service connection. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. The veteran has “the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” 38 U.S.C.A. § 5107(a) (West 1991); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The veteran must satisfy three elements for his claims for service connection to be well grounded. First, there must be competent evidence of a current disability (a medical diagnosis). Second, there must be evidence of incurrence or aggravation of a disease or injury in service, as shown through lay or medical evidence. Lastly, there must be evidence of a nexus or relationship between the inservice injury or disease and the current disorder, as shown through medical evidence. See Epps v. Gober, 126 F.3d 1464 (1997). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) (1997), are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court’s case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) (1997) if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). In determining whether a claim is well grounded, the truthfulness of the evidence is presumed. Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). The veteran had active duty from June 1946 to June 1949 and from October 1951 to November 1969. His service medical records show that, in December 1960, he was treated for allergic dermatitis and given medication. In March and July 1964, the veteran was treated for tinea cruris and also treated with medication. I. Service Connection on a Presumptive Basis Exposure to defoliants such as Agent Orange in the case of veterans with field service in Vietnam during the period in question is conceded. The Board notes that disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 (1997), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 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 C.F.R. § 3.307(a)(6)(iii) (1997) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (1997) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; non-Hodgkin's lymphoma; porphyria cutanea tarda; multiple myeloma; respiratory cancers (cancers of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (1997). When, after careful consideration of all the evidence of record, a reasonable doubt arises regarding service origin, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1997). A. Chloracne The veteran's claim for service connection for chloracne as a result of Agent Orange exposure is well grounded, meaning it is plausible. 38 U.S.C.A. § 5107(a) (West 1991). The relevant evidence has been properly developed to the extent possible, and there is no further VA duty to assist the veteran with this claim. Id. The veteran had was on active duty for more than 21 years, which included a tour of combat duty in Vietnam. The medical evidence is somewhat conflicting as to whether the veteran currently has chloracne. The veteran was seen on active duty for treatment of allergic dermatitis and tinea cruris; the remainder of the service medical records, including the veteran’s separation examination, are negative for any findings indicative of any skin disorder. The post-service medical records show that in an October 1994 VA examination report addendum, the examiner emphasized to the veteran that his current rash had no features suggestive of chloracne and that there was no evidence of chloracne on his examination that day. However, the Board also observes that VA outpatient records, dated from September 1987 to April 1990, show that the veteran consistently reported that he had a rash on his face, back, hands, and arms related back to service. Also, in the March 1994 statement, a VA physician indicated that the veteran’s “description of having had many rashes while in [his] area of military service where Agent Orange was used, and the recurrent nature of the rash associated with pustules which led . . . the San Diego VA to diagnose this as chloracne, would appear to be valid.” Moreover, in a March 1994 VA Agent Orange examination report, a definite diagnosis was rendered of “Dermatitis – Recurrent nature of rash with history of pustules favors diagnosis of chloracne.” The Board finds that the preponderance of the medical evidence supports the veteran’s claim that he has chloracne, and the record supports the presumption that he was exposed to Agent Orange while serving in Vietnam. See 38 C.F.R. § 3.307 (1997). While there is no medical evidence to show that chloracne was present to a degree of 10 percent within a year of service (Id.), the United States Court of Appeals for the Federal Circuit determined that the Veteran's 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 (Fed.Cir. 1994). Thus, the veteran could establish service connection directly for chloracne. The Board finds that there is sufficient medical evidence that links the veteran’s chloracne to inservice exposure to Agent Orange. In support of this conclusion, the Board notes that the March 1994 VA examination, which resulted in a supportive opinion, was an Agent Orange examination. Hence, service connection for chloracne is warranted. B. Seborrheic Dermatitis and Tinea Inasmuch as the appellant's claim is respecting seborrheic dermatitis and tinea, the Board notes that these skin disorders are not one of the diseases recognized as attributable to Agent Orange under applicable regulations. See 38 C.F.R. § 3.309(e) (1997). Therefore, this claim cannot prevail on the basis of this presumption for service connection even with the veteran having been exposed to defoliants. In light of the above, it is well to observe that the United States Court of Veterans Appeals held that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). To the extent the law is dispositive of this issue, the claim lacks legal merit. Id. II. Service Connection on a Direct Basis As noted above, the cited law and regulations relating to exposure to herbicides do not preclude a veteran from establishing service connection with proof of actual direct causation. Combee, supra. Thus, the veteran could establish service connection directly for seborrheic dermatitis and tinea. However, the United States Court of Veterans Appeals has held that where the issue involves medical causation, competent medical evidence which indicates that the claim is plausible or possible is required to set forth a well- grounded claim. See Grottveit v. Brown, supra at 93. Here, the only evidence presented by the veteran that tends to show a connection between his skin disorders in the service and his current dermatitis and tinea are his own statements, including his April 1996 RO hearing testimony. While these statements represent evidence of an inservice disorder and of subsequent continuity of symptomatology, they are not competent evidence that relates a present condition to that symptomatology and, under such circumstances, the claim is not well grounded. Savage, supra. That is, while the veteran is competent to offer testimony as to symptoms of the disorder in question, he is, as a lay person, not qualified to offer a medical opinion as to causation or etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (lay testimony is not competent evidence when the question presented requires specialized knowledge). See also Savage, supra; 38 C.F.R. § 3.303(b) (1997). Further, although post-service medical evidence notes a history of a skin disorder (other than chloracne), claimed to have been caused by Agent Orange exposure, relating back to the veteran’s period of service, such evidence, which is simply information provided by the veteran and recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Accordingly, the veteran’s statements are insufficient to ground the claim. The Board notes that, while the veteran was seen while on active duty for treatment of allergic dermatitis and tinea cruris, this occurred in the early 1960s; the remainder of the service medical records, including the veteran’s separation examination, are negative for any findings indicative of any skin disorder. The August 1969 separation examination included a normal clinical evaluation of the skin. Moreover, the veteran did not file a claim for service connection until September 1987, approximately eighteen years after his separation from the service. In the absence of medical evidence of a nexus between current diagnoses of seborrheic dermatitis and tinea and any incident of service, including exposure to Agent Orange, the Board finds that the claim for service connection must be denied as not well grounded. Epps, supra; Gober, supra. As the veteran’s claim is not well grounded, VA has no further duty to assist the appellant in developing the record to support this claim. See Epps, 126 F.3d at 1467-68. A well-grounded claim must be supported by evidence, not merely allegations. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Since such evidence is absent from the record, the Board must conclude that the veteran has not submitted evidence sufficient to establish that his claim of entitlement to service connection for seborrheic dermatitis and tinea is well grounded. The Board recognizes that this appeal is being disposed of in a manner that differs from that used by the RO. The RO denied the veteran’s claim on the merits, while the Board has concluded that the claim is not well grounded. However, the Court of Veterans’ Appeals has held that when an RO does not specifically address the question whether a claim is well grounded but rather, as here, proceeds to adjudication on the merits, there is no prejudice to the appellant solely from the omission of the well-grounded analysis. See Meyer v. Brown, 9 Vet. App. 425, 432 (1996). The Board is aware of no circumstances in this matter that would put VA on notice that relevant evidence may exist, or could be obtained, that, if true, would make this claim “plausible.” See generally McKnight v. Gober, 131 F.3d 1483 (1997); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1996). ORDER Service connection for chloracne is granted. Service connection for seborrheic dermatitis and tinea is denied. R. F. WILLIAMS 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 which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -