Citation Nr: 9903458 Decision Date: 02/05/99 Archive Date: 02/10/99 DOCKET NO. 97-15 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for skin disability for accrued benefit purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Howard M. Scott, Associate Counsel INTRODUCTION The veteran had active service from May 1966 to October 1970, and died in May 1996. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 1996 rating decision of the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in February 1997. A statement of the case was issued in April 1997, and a substantive appeal was received that same month. In January 1998, the appellant testified from the RO before the undersigned member of the Board sitting in Washington, D.C. by means of a videoconference hearing. In June 1998, the Board remanded the case for additional development. The case has been returned to the Board for appellate review. FINDINGS OF FACT 1. The veteran died on May [redacted], 1996. 2. At the time of the veteran's death, there was a claim pending on the issue of entitlement to service connection for skin disability. 3. The positive evidence is in a state of equipoise with the negative evidence on the question of whether the veteran's skin disability was related to his active military service. CONCLUSIONS OF LAW 1. The veteran's skin disability was incurred during his period of active military service. 38 U.S.C.A. §§ 1110, 1116, 5107(b) (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1998). 2. The criteria for entitlement to service connection for skin disability for accrued benefit purposes have been met. 38 U.S.C.A. § 5121 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran died on May [redacted], 1996. At the time of his death, he had had initiated appeals from denials of claims for entitlement to service connection for a skin disability and for leukemia. Although the veteran's appeals terminated with his death, Congress has set forth a procedure for a qualified survivor to carry on, to a limited extent, a deceased claimant's claim for VA benefits by submitting a timely claim for accrued benefits. 38 U.S.C.A. § 5121; See Landicho v. Brown, 7 Vet. App. 42, 47 (1994). The law applicable to accrued benefits provides that certain individuals may be paid periodic monetary benefits (due and unpaid for a period not to exceed two years) to which a claimant was entitled at the time of his or her death under existing ratings or based on evidence in the file at the time of his or her death. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000. In the present case, the appellant (the veteran's widow) has advanced essentially the same service connection claims (for accrued benefit purposes) which the veteran had appealed at the time of his death. The claim for entitlement to service connection for leukemia was denied by the Board in June 1998. The claim for entitlement to service connection for a skin disorder was remanded and has been returned to the Board for appellate review. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). The Board notes that a major contention advanced in the present case is that the veteran was exposed to Agent Orange during his service in Vietnam and that this exposure led to the development of a skin disorder. In this regard, applicable law also provides that service connection is presumed for a number of diseases arising in veterans who have been determined to have been exposed to Agent Orange, including a number of skin disorders such as porphyria cutanea tarda. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307; 3.309(e). The Board notes, however, that while the veteran asserted entitlement to service connection for porphyria cutanea tarda in his June 1994 claim, the record does not contain a medical diagnosis of that disorder. The only evidence that the veteran ever had porphyria cutanea tarda comes from the veteran and the appellant. However, as laypersons, neither the veteran, when he was alive, nor the appellant, are competent to provide an opinion requiring medical knowledge, such as a medical diagnosis of a current condition. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Accordingly, there is no basis for establishing entitlement to service connection for porphyria cutanea tarda as there is no medical diagnosis of that disorder. In addition to the specific claim of entitlement to service connection for porphyria cutanea tarda secondary to exposure to Agent Orange, the appellant, in September 1996 also claimed entitlement to service connection for a skin disorder generally, described as a rash all over the veteran's hands, arms and legs. This too was claimed as being secondary to exposure to Agent Orange. During his lifetime, the veteran had been diagnosed with dermatitis, tinea manus, corporis and onychomycosis. None of these disorders, however, is included in the list of diseases for which service connection is presumed when it is diagnosed in an Agent Orange-exposed veteran. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307; 3.309(e). The inclusion of certain diseases, as opposed to others, within this list reflects a determination by the Secretary of Veterans Affairs (Secretary), based on sound medical evidence, that there exists a positive association between (A) the occurrence of those diseases in humans and (B) the exposure of humans to an herbicide agent. 38 U.S.C.A. § 1116(b)(1); 61 Fed.Reg. 41368-41371 (1996). Moreover, the Secretary, under the authority granted by the Agent Orange Act of 1991, specifically has indicated 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 a number of diseases, and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. 61 Fed.Reg. 41442-41449 (1996). Nevertheless, the United States Court of Appeals for the Federal Circuit has determined that the law and regulation which provide for presumptive service connection based on Agent Orange exposure do not preclude establishing service connection on principles of direct causation. See Combee v. Brown, 34 F.3d 1039, 1045 (Fed.Cir. 1994). The veteran's service records indicate that he served in Vietnam. His service medical records are unavailable. In such a case, the VA's duty to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit of the doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993). Correspondence, dated in January 1993, from the U.S. Army & Joint Services Environmental Support Group, indicates that the veteran was exposed to Agent Orange in service on at least one occasion. Private treatment records from July 1982 to May 1996 noted an impression of tinea manus, corporis and onychomycosis. A June 1992 VA examination report noted a diagnosis of erythematous exfoliative dermatitis of the abdomen and groin area and hands. Significantly, the examiner commented that the skin disorder was "probably related to chemical exposure, such as Agent Orange." VA outpatient treatment records from September 1992 noted that the veteran gave a history of a rash on his right hand "since Vietnam." The impression noted was chronic dermatitis on right hand (fungal vs. contact). The appellant testified at her January 1998 personal hearing before the below named Board member that she first noticed the veteran's skin condition when they got married, between the veteran's two tours of duty in Vietnam. She stated that VA physicians told the veteran that his disorders were due to exposure to chemicals such as Agent Orange. She stated further that she did not know whether the veteran had ever been diagnosed with porphyria cutanea tarda. Following the veteran's separation from service, the appellant recounted, he had not been exposed to any chemicals, but he had told her he had been directly sprayed while in service in Vietnam. It appears that the appellant and her representative have placed great weight on the comment made by the VA examiner in the report of the June 1992 examination. However, this brief notation (while made by a medical doctor) does not include a rationale for its view. Furthermore this opinion is contradicted by the medical community at large. In this regard, a review of the regulatory history of 38 C.F.R. §§ 3.307, 3.309 reveals that after reviewing 6,420 scientific or medical articles, consulting with outside experts, and conducting public hearings, the National Academy of Sciences in their report, VETERANS AND AGENT ORANGE: HEALTH EFFECTS OF HERBICIDES USED IN VIETNAM (1993) concluded that there was either no association, or increased risk that was not significant, between herbicide exposure and numerous disorders, including skin disorders, other than chloracne, or other acneform diseases consistent with chloracne, and porphyria cutanea tarda. 58 Fed.Reg. 50528 (1993). The Board therefore finds that the probative value of the brief notation in the VA examination report, unsupported by any rationale, is exceeded by the weight of contrary medical opinion, supported by the National Academy of Sciences. The only other evidence presented by the appellant that tends to show a connection between the veteran's service and his skin disorder are her own statements and testimony. The Board acknowledges the testimony offered by the appellant and believes her to be sincere in offering such testimony. Further, the Board finds her testimony to be credible. However, as noted above, as a layperson, she is not competent to provide an opinion requiring medical knowledge, such as a question of medical relationship. Espiritu, 2 Vet. App. at 495. Nevertheless, the appellant as a layperson is certainly competent to report her own first-hand observations. At the January 1998 Board hearing, the appellant testified under oath that she first noted that the veteran had a skin condition when she married him in 1968. Regardless of any medical relationship (or lack thereof) between Agent Orange and the veteran's diagnosed skin disorder(s), the appellant's testimony is to the effect that she noted that the veteran had a skin condition at a time during the veteran's active military service. Given the unavailability of the veteran's service medical records, the Board believes that the appellant's testimony as to her own observations is especially significant. The Board also observes that apparently some private medical records purportedly documenting pertinent treatment after service have been destroyed. The available private records document treatment in 1982, some twelve years after the veteran's discharge from service. Ordinarily, such a gap between service and such post-service treatment would be viewed as evidence that any inservice symptoms were acute in nature. However, the appellant also testified that the veteran sought out medical treatment after service, and there are also of record VA medical records which include notations that the veteran indicated that he had suffered from a rash since his return from Vietnam. The Board believes that the veteran's statements (given in the course of seeking medical treatment) should be afforded some weight as well. After reviewing the evidence in the present case, the Board is led to the conclusion that there exists a state of equipoise of the negative evidence with the positive evidence on the question of whether the veteran manifested a chronic skin disability during his period of military service. In such a case, the question must be resolved in the claimant's favor. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for skin disability for accrued benefit purposes is warranted. The appeal is granted to this extent. ALAN S. PEEVY 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. - 8 -