Citation Nr: 9837623	
Decision Date: 12/24/98    Archive Date: 12/30/98

DOCKET NO.  95-21 939	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, 
West Virginia


THE ISSUE

Entitlement to service connection for chloracne due to Agent 
Orange exposure.  


REPRESENTATION

Appellant represented by:	Military Order of the Purple 
Heart


ATTORNEY FOR THE BOARD

K. Johnson, Associate Counsel






INTRODUCTION

The veteran had active military service from April 1960 to 
August 1965 and from June 1966 to June 1968.

This matter initially came to the Board of Veterans’ Appeals 
(Board) from a February 1994 decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Huntington, 
West Virginia, which denied the veteran’s claim of service 
connection for chloracne due to Agent Orange exposure.  VA 
received the veteran’s notice of disagreement in March 1994.  
In May 1994, a statement of the case was issued and the 
veteran submitted his substantive appeal.   


CONTENTIONS OF APPELLANT ON APPEAL

The veteran maintains that he currently suffers from 
chloracne related to Agent Orange exposure that occurred 
during service.  


DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. 
§ 7104 (West 1991 & Supp. 1998), 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 preponderance of the 
evidence supports the claim of service connection for 
chloracne.  


FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable 
disposition of the appeal has been obtained by the RO.

2.  The veteran has chloracne due to Agent Orange exposure 
during his service in Vietnam.  


CONCLUSION OF LAW

Chloracne was incurred in wartime service.  38 U.S.C.A. §§ 
1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1998).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background

A review of the veteran's DD Form 214 reveals that the 
veteran served in Vietnam during the Vietnam era.  The 
veteran’s service medical records are negative for findings 
of chloracne, including examinations conducted in April 1960, 
August 1962, July 1965, June 1966 and May 1968 were all 
negative regarding findings of chloracne.  

A private medical record shows that the veteran was seen in 
the emergency room of Welch Emergency Hospital, in November 
1988, with a complaint of a rash on the face of 5-day 
duration.  The examination revealed a papular and macular 
rash on the neck and face with no other findings.  The 
diagnosis was rule out urticaria, contact dermatitis.  The 
veteran was prescribed Prednisone and advised to see a 
dermatologist if no result was obtained.

Pursuant to his claim of service connection for residuals of 
Agent Orange exposure, a VA examination was conducted in 
January 1991.  The examination of the skin indicated fungus 
of the toenails and easily bruised skin.  

In a statement received in April 1991, the veteran reported 
that he was having trouble with skin rashes as well as with 
severe bruising.  He attributed these problems to Agent 
Orange exposure.  

When treated in August and September 1993, the veteran 
complained that his face broke out every year, and that 
antibiotic creams did not resolve the condition.  In August 
1993, the examiner noted that there was a small area of 
raised reddened bumps on the right cheek, and no drainage was 
observed.  In October 1993, the veteran underwent a VA 
examination for PTSD, and at that time he reported a history 
of frequent body rashes.  The examiner noted a diagnosis of 
frequent rashes.  A January 1994 notation contains a 
reference to a diagnosis of chloracne by a dermatologist.  

In December 1993, VA received a report from D. L. Tolliver, 
D.O., which noted that the veteran was treated in November 
1993 for an eruption of the face.  The veteran related a 
history of chronic persistent outbreaks over the past 20 
years, primarily on his face.  The eruptions were 
unresponsive to conventional therapy of oral antibiotics and 
topical astringent antibiotics.  The veteran indicated a 
history of Agent Orange exposure.  The physical examination 
revealed erythematous round and oval plaques with crusting 
and weeping, primarily centered around the T zone of the 
face.  In other areas, there were white comedonal plugs and 
residual lesions from previous eruptions.  A biopsy revealed 
expanded follicular units consistent with a diagnosis of 
chloracne, when taking into consideration his comedonal 
problem.  The conclusion was that the pathological findings 
and clinical observations were consistent with a diagnosis of 
chloracne as a result of exposure to dioxin compounds during 
Vietnam.  The attached dermatopathology report indicated a 
diagnosis that stated the expanded follicular units could be 
correlated with ongoing acne.  It was stated that chloracne 
typically has more of a comedonal component but the latter 
variant of acne could loosely fit in the differential 
diagnosis. 

The veteran underwent a VA examination of the skin in August 
1996.  There was a reported history of dermatitis beginning 
in 1968, but it was also noted that the veteran did not go on 
sick call or mention the condition on discharge examination.  
The examiner found several excoriated acneiform papules on 
the face and neck, and a small verruca like lesion on the 
chest and back.  The examiner reported diagnoses of chloracne 
secondary to Agent Orange exposure, neurodermatitis secondary 
to chloracne, and seborrheic keratosis of the trunk.

In July 1997, the Board remanded the case for further 
development, including an examination.  The Board 
specifically requested that the examiner clarify whether or 
not the veteran presently has chloracne due to Agent Orange 
exposure, and that the examiner address all the 
dermatological symptoms reported by the veteran and provide 
diagnoses for any skin conditions currently manifested.  The 
Board also asked that special attention be paid to the 
presence or absence of chloracne, and that the examiner 
address the etiological factors contributing to the veteran's 
claimed disorder, including his prior medical history and his 
history of Agent Orange exposure.  Pursuant to the Board’s 
remand, examinations were conducted in December 1997, April 
1998 and August 1998.  The physician who examined the veteran 
in August 1996, also conducted the December 1997 and April 
1998 examinations.  It was indicated on all of the reports 
that the claims folder had been reviewed.  

In December 1997, the examiner noted that when seen in 
September 1993 there was acneiform dermatitis on the torso, 
and in August 1996 the acneiform dermatitis would pass for 
chloracne.  In December 1997, the examiner determined that 
the veteran had acneiform dermatitis but “not chloracne or 
related to Agent Orange exposure.”  The examiner also 
referred to the prior history of the condition since 1968, 
not reporting to sick call and not mentioning the condition 
at the time of the discharge examination.  The examiner found 
a few papules on the veteran’s torso, and noted that the 
veteran had a sebaceous cyst excised from his scrotum in 
1994. 

In April 1998, the examiner noted the history of acneiform 
papules on the body since 1968.  The examination did not 
reveal evidence of acneiform dermatitis or chloracne, and the 
dermatitis was considered to be in remission.  The examiner 
diagnosed acneiform dermatitis consistent with chloracne by 
history and previous examinations by this examiner and Dr. 
Tolliver.

In August 1998, a different examiner described photographs 
taken of the veteran’s facial lesions.  The examiner 
expressed agreement with the other examiners who had, after a 
review of the medical history, determined that the veteran 
had chloracne.  The examiner pointed out that the claims 
folder had been reviewed and that the entrance and separation 
examinations showed no evidence of a skin disorder.  

Legal Analysis

The Board finds that the veteran’s claim is well grounded.  
38 U.S.C.A. § 5107(a) (West 1991).  The Board is satisfied 
that all relevant facts have been properly developed and that 
the VA has fulfilled its duty to assist the veteran as 
mandated by 38 U.S.C.A. § 5107 (West 1991) and 38 C.F.R. § 
3.103(a) (1998). 

Under applicable criteria, service connection will be granted 
for a disability resulting from personal injury suffered or 
disease incurred or aggravated during service.  38 U.S.C.A. 
§ 1110 (West 1991).  If there is no showing of a resulting 
chronic condition during service, then a showing of 
continuity of symptomatology after service is required to 
support a finding of chronicity.  38 C.F.R. § 3.303(b) 
(1998).  Service connection may also be granted for a disease 
first diagnosed after service when all of the evidence, 
including that pertinent to service, establishes that the 
disease was incurred in service. 38 C.F.R. § 3.303(d) (1998).  

A veteran who, during active military, naval, or air service, 
served in the Republic of Vietnam during the Vietnam era, and 
has a disease listed at 38 C.F.R. § 3.309(e), shall be 
presumed to have been exposed during such service to a 
herbicide agent, unless there is affirmative evidence to 
establish that the veteran was not exposed to any such agent 
during that service.  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 Vietnam era.  “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) (1998).

Upon careful review of the evidentiary record, the Board 
finds it is clear that the veteran served in Vietnam and is 
entitled to a presumption of Agent Orange exposure.  The 
Board further notes that the medical record indicates the 
veteran has been diagnosed with chloracne.  

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)(6)(iii) 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) are 
also satisfied: 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 lung, bronchus, 
larynx, or trachea) and soft-tissue sarcomas (other than 
osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or 
mesothelioma).  38 C.F.R. § 3.309(e) (1998).

The diseases listed at 38 C.F.R. § 3.309(e) shall have become 
manifest to a degree of 10 percent or more at any time after 
service, except that chloracne or other acneform disease 
consistent with chloracne, porphyria cutanea tarda, and acute 
and subacute peripheral neuropathy 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) (1998).

In the instant case, although there is a reported history of 
skin problems since 1968 and a current diagnosis of 
chloracne, the first skin condition documented in the 
evidence of record is the 1988 diagnosis of rule out 
urticaria, contact dermatitis.  Therefore, since the evidence 
of record does not demonstrate the manifestation of chloracne 
within the year after the veteran’s separation from service, 
the presumption under 38 C.F.R. § 3.307(a)(6)(ii) does not 
apply.  

Notwithstanding the foregoing, the United States Court of 
Appeals for the Federal Circuit has 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).  In this regard, the evidence is in the veteran’s 
favor.  

The physician who conducted examinations in August 1996, 
December 1997, and April 1998 offered conflicting opinions 
regarding the diagnosis of the chloracne and whether or not 
the veteran’s chloracne was due to Agent Orange exposure.  
The last VA physician to examine the veteran in August 1998 
was in agreement with the prior opinions that the history was 
consistent with a diagnosis of chloracne.  However, this 
physician was silent regarding the question of whether the 
veteran’s chloracne was due to Agent Orange exposure.  As 
noted, all of the VA examiners reported that they reviewed 
the claims folder, which did include the report from Dr. 
Tolliver.  In the December 1993 report, Dr. Tolliver clearly 
diagnosed chloracne due to exposure to dioxin compounds 
during Vietnam.  Given the examiner’s silence, it is 
reasonable to conclude that the examiner was also in 
agreement with Dr. Tolliver’s conclusion regarding Agent 
Orange exposure.  The preponderance of the evidence favors 
the veteran’s claim and the appeal is granted. 


ORDER

Service connection for chloracne is granted.  



		
	J. E. Day
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 
1991 &  Supp. 1998), 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.
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