Citation Nr: 9927674 Decision Date: 09/27/99 Archive Date: 10/05/99 DOCKET NO. 98-01 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a skin condition on a direct basis and as secondary to exposure to herbicide agents. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. A. Herman, Associate Counsel INTRODUCTION The veteran had active military service from May 1968 to May 1971. This appeal arises from an October 1997 rating decision of the White River Junction, Vermont, regional office (RO) which denied service connection for hypertension and chloracne. As he subsequently indicated that he was seeking service connection for a skin condition and not specifically chloracne, the issue has been re-characterized on the title page of this decision to reflect the veteran's intended claim. The Board of Veterans' Appeals (Board) observes that the veteran's claim seeking service connection for a skin condition due to Agent Orange exposure was originally received in May 1980 and denied by an August 1980 rating decision. Since that time, a United States District Court voided all benefit denials under 38 C.F.R. § 3.311a, the "dioxin" (Agent Orange) regulation, which was promulgated under the "Dioxin and Radiation Exposure Compensation Standards Act," 38 U.S.C.A. § 1154(a) (West 1991), and remanded those cases to the Department of Veterans Affairs (VA) for revision of the regulation in accordance with the ruling of the Court. See Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989). Final regulations were promulgated by VA in February 1994. Accordingly, this matter has been considered on a de novo basis. FINDINGS OF FACT 1. The veteran has been diagnosed as having hypertension. 2. There is no competent medical evidence linking the veteran's diagnosed hypertension with his military service. 3. The veteran's claim for service connection for hypertension is not plausible. 4. The veteran had active military service in Vietnam during the Vietnam era. 5. The evidence of record shows that the veteran was treated for a skin condition in 1972, that he was diagnosed as having tinea versicolor in 1980, and he presently suffers from the same. 6. Noting that he had a long history of tinea versicolor, a VA examiner opined that the veteran may have had tinea versicolor during his military service. 7. The veteran has not been diagnosed with any disorder recognized by VA as being etiologically related to exposure to herbicide agents used in Vietnam. 8. There is no competent medical evidence linking the veteran's tinea versicolor with his alleged exposure to herbicide agents used in Vietnam. 9. The veteran's claim for service connection for a skin condition as secondary to exposure to herbicide agents is not plausible. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for hypertension is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. Tinea versicolor was incurred during active military service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1998). 3. The claim of entitlement to service connection for a skin condition as secondary to exposure to herbicide agents is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran's enlistment and discharge examinations indicated that his heart was normal. His blood pressure was 136/82 at his enlistment and 118/82 at his discharge. With the exception of a four-inch appendectomy scar, his skin was also reported as normal. Service medical records contain no reference to complaints, treatment, or diagnosis of hypertension or tinea versicolor. In May 1980, the veteran filed a claim for service connection for multiple disabilities including a skin condition. He stated he had sought outpatient treatment at the White River Junction VA Medical Center (VAMC). He also indicated that he had been receiving treatment for his skin problem through a Dr. Judd since 1972. In this regard, the veteran submitted a prescription order from Dr. Judd dated in June 1972 for several medications that were to be applied to the "affected skin." The refill order indicated "life." Medical records from the White River Junction VAMC show that the veteran underwent an examination for Agent Orange exposure in May 1980. The history of his alleged exposure was discussed in detail. Notably, he stated that he had been suffering from a skin rash since getting out of service. He said the rash was chronic and recurring. There were pale pink papular confluent eruptions on the chest wall. His blood pressure was 140/90. He was referred to the dermatology clinic. During a July 1980 evaluation by the dermatology clinic, the veteran complained of a brownish macular rash over his trunk, groin, and upper extremities. He said he had been suffering from the rash since 1970, and that it would flare-up on hot days. There were discrete brownish macules in clusters, singly, and confluent areas over the trunk. The assessment was tinea versicolor. In August 1980, the veteran was afforded a VA general medical examination. His history of skin problems and the findings of the July 1980 dermatology examination were referenced. Similar skin symptoms were noted on examination. His heart was normal and his blood pressure was 150/80. There were no findings pertaining to hypertension. The diagnosis, in pertinent part, was tinea versicolor. By a rating action dated in August 1980, service connection for a skin condition as secondary to herbicide exposure was denied. The RO concluded that the veteran's diagnosed tinea versicolor was not attributable to his claimed exposure to Agent Orange. In July 1997, the veteran filed a claim for service connection for a heart condition. He said blood pressure readings taken inservice were high on several occasions. He indicated high blood pressure readings were also recorded by VA in 1978, and that he had been taking blood pressure medication since 1995. He reported receiving treatment for his hypertension through the White River Junction VAMC. The veteran also argued that service connection was warranted for a skin condition, to include chloracne, due to his exposure to Agent Orange. He said his history of treatment for his skin problems was well documented in his VA records. In a letter dated in August 1997, the RO advised the veteran that he needed to submit evidence showing either a diagnosis of a chronic heart disorder or hypertension within one year of his discharge from service. He was also told to submit evidence that he had been diagnosed as having chloracne within one year of leaving Vietnam. By a rating action dated in October 1997, service connection for hypertension and chloracne was denied. The RO determined there was no record of treatment for hypertension or chloracne in service or within the applicable presumptive periods. Moreover, the RO found there was no evidence that the veteran had a current diagnosis of chloracne. Medical records from the White River Junction VAMC dated from May 1980 to April 1998 were associated with the claims folder. A treatment note dated in May 1994 indicated that the veteran had been recently diagnosed as having "borderline hypertension." He reported that his blood pressure had been climbing over the past several years. He was diagnosed as having hypertension in November 1994 and started on hydrochlorothiazide. Subsequent treatment records indicated that he was also placed on a diet and exercise program to help in lowering his high blood pressure. The etiology of the veteran's hypertension was not discussed. Similarly, while he received periodic evaluations of his tinea versicolor and references were made to him suffering from his skin problem since 1971, there were no findings that related the veteran's tinea versicolor to his military service. In April 1998, the veteran was afforded a personal hearing before a hearing officer at the RO. He maintained that he had high blood pressure readings in service. He said similar findings were made shortly after his discharge. He denied undergoing any inservice evaluations for high blood pressure or being diagnosed as having hypertension at that time. With regard to his skin condition, the veteran described having small brown spots that would appear on his chest, back, arms, and groin. He said the condition worsened during warm weather, and that, during those periods, the affected areas would become red and splotchy. He indicated his wife first noticed his skin condition upon his return from Vietnam. The veteran stated that it continued to bother him throughout the remainder of his service. However, he testified that he did not seek treatment for his skin problem until after his discharge. While records from his treating physician were unobtainable due to the physician's death many years ago, the veteran was able to produce a copy of a prescription note dated in June 1972. He said his skin condition had been followed by VA since 1980. He reported being stationed in areas that had been sprayed with a defoliant he believed now was Agent Orange. He denied ever being diagnosed as having chloracne. A letter was received from the veteran's wife in May 1998. She stated she had been married to the veteran prior to his being sent to Vietnam, and that he did not have a rash at that time. However, upon his return from Vietnam, she indicated he had a rash on parts of his chest. She said she asked him to have it checked, but that he did not do so until after his discharge. She stated the rash had continuously bothered the veteran since his military service. The veteran was afforded a VA dermatology examination in August 1998. He stated his skin problem initially manifested shortly after his return from Vietnam in March 1970. He said he sought treatment for his skin condition through Dr. Judd in 1972 and was prescribed sodium sulfate and alcohol. He indicated that this treatment helped for a few years. He maintained the condition had grown progressively worse over the years. The history of his alleged exposure to Agent Orange was discussed. On examination, there were hyperpigmented papules profusely over his upper chest, upper back, and upper arms. There was no ulceration, exfoliation, or crusting. A scraping of the rash was performed and was examined under the microscope using KOH. The diagnosis was tinea versicolor. The examiner indicated that tinea versicolor was a common rash caused by the overgrowth of the normal yeast flora that live on the surface of the skin. In this regard, she opined that the veteran "may have had" this condition while in service, but that she could not be sure because there was no record of it at that time. She observed that it was obvious from his history that the veteran had been suffering from tinea versicolor for some time. Nevertheless, the examiner stated that she did not believe this condition was in any way related to his service in Vietnam or possible exposure to Agent Orange. She said tinea versicolor tended to come out in the summertime when the weather was warm and there was a great deal of sweating. In October 1998, the hearing officer denied service connection for hypertension. He found there was no evidence showing that hypertension had been diagnosed inservice or within one year of the veteran's discharge. He said the first evidence of treatment for hypertension was not until 1994. Moreover, the hearing officer determined there was no evidence establishing a causal relationship between the veteran's military service and his diagnosed hypertension. Service connection was also denied for chloracne as secondary to herbicide exposure. The hearing officer held that the veteran had not been diagnosed as having chloracne, and that his diagnosed tinea versicolor was not a condition that was presumed to be caused by Agent Orange exposure. A supplemental statement of the case was sent to the veteran in October 1998. In a statement received in May 1999, the veteran's representative argued that service connection for a skin condition was clearly warranted. The representative contended that the evidence of record documented continuity of treatment for a skin condition since 1972. He noted that the veteran's wife had submitted a statement indicating that the skin rash first manifested inservice. Finally, he pointed out that the VA examiner had linked the veteran's tinea versicolor to his military service. II. Analysis Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1998). Where a veteran served 90 days or more during a period of war, and cardiovascular disease to include hypertension becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1998). 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) (1998). A person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary shall assist such a claimant in developing the facts pertaining to the claim. 38 U.S.C.A. § 5107(a). The issue before the Board is whether the appellant has presented evidence of a well-grounded claim. If not, the appeal must fail, because the Board has no jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of proof of 38 U.S.C.A. § 5107 (a). Murphy v. Derwinski, 1 Vet. App. 78, 81. However, to be well grounded, a claim need not be conclusive but must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-263 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science to which the question relates are required. Questions of medical diagnosis or causation require such expertise. A claimant would not meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Id. at 495. A claim for service connection requires three elements to be well grounded. There must be competent evidence of a current disability (a medical diagnosis); incurrence or aggravation of a disease or injury in service (lay or medical evidence); and a nexus between the in service injury or disease and the current disability (medical evidence). The third element may be established by the use of statutory presumptions. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the U.S. Court of Appeals for Veterans Claims (Court), lay observation is competent. If chronicity is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. §3.303(b) if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). A. Hypertension The key question here centers on the relationship of the current hypertension disability with military service. Such a relationship is not susceptible to informed lay observation, and, thus, for there to be credible evidence of such a relationship, competent medical evidence is required. The veteran has submitted no medical evidence linking his currently diagnosed hypertensive disorder to his military service. Indeed, the medical evidence that is contained in the claims file suggests otherwise. The first manifestation of an elevated blood pressure reading was not shown until 1994. The Board notes that the veteran gave a history of having elevated blood pressure readings in service. However, the veteran indicated that he did not undergo any evaluations for high blood pressure in service. He also denies being diagnosed as having hypertension in service or for many years thereafter. In other words, the presence of a chronic disability in service was not shown. Even if the evidence fails to demonstrate the applicability of the chronicity provision of § 3.303(b), a VA claimant may still obtain the benefit of § 3.303(b) by providing evidence of continuity of symptomatology. Evidence of continuity is determined by symptoms not treatment. However, in determining the merits of a claim, the lack of evidence of treatment may bear on the credibility of the evidence of continuity. Here, the connection of the veteran's present symptoms -high blood pressure- to service is a relationship that requires a medical opinion, and such an opinion is also required to connect the veteran's present hypertension to the alleged high blood pressure readings the veteran asserts he has had since his discharge. See Savage v. Gober; see also Grottveit v. Brown, 5 Vet. App. 91 (1993); Layno v. Brown, 6 Vet. App. 465 (1994). No such medical evidence has been submitted in this case. B. Skin Condition on a Direct Basis At the outset, the Board notes that the veteran's claim for service connection for a skin condition on a direct basis is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that "a veteran need only demonstrate that there is an "approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. It is the Board's responsibility to weigh the evidence. The Board also has the duty to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997) and cases cited therein. In this case, the veteran's service medical records contain no reference to complaints, treatment, or diagnosis of a skin condition to include tinea versicolor. However, the veteran has testified that his present tinea versicolor first manifested in 1970. His wife has made a similar allegation. The prescription from Dr. Judd dated in June 1972, approximately one year after discharge, shows that the veteran received treatment for a skin problem. Treatment records from the White River Junction VAMC reveal that he has received periodic evaluations for tinea versicolor since 1980. Finally, a VA examiner opined that it was possible that the veteran suffered from tinea versicolor during his military service. In sum, the Board finds that the medical evidence of record tends to link the veteran's currently diagnosed tinea versicolor to symptoms he claims to have experienced during his military service. Specifically, reflecting on the veteran's long-standing history of tinea versicolor and the nature of the condition itself, a VA examiner has determined that the veteran may have had tinea versicolor in service. There is no evidence that contradicts this opinion. Therefore, although the evidence is not conclusive, the Board is satisfied that the balance of the evidence warrants a grant of service connection based on these facts. C. Skin Condition as Secondary to Exposure to Herbicide Agents The veteran has also argued that his skin condition was caused by his exposure to Agent Orange during service. In that respect, a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 (1998) 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. No condition other than one listed in 38 C.F.R. § 3.309(a) (1998) will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116 (West 1991 & Supp. 1999); 38 C.F.R. § 3.307(a) (1998). 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, and has a disease listed at 38 C.F.R. § 3.309(e), 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. 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 period beginning on January 9, 1962, and ending on May 7, 1975. "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). [Emphasis added]. 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)(1998) 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) (1998) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; multiple myeloma; non-Hodgkin's lymphoma; prostate cancer, subacute and acute peripheral neuropathy, porphyria cutanea tarda; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (1998). "For purposes of this section, the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves with two years of the date of onset." Note 2 of 38 C.F.R. § 3.309(e). 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). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit (Federal Circuit), however, 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 direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994); See also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). However, 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. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Upon careful review of the evidentiary record, the Board finds it is clear that the veteran served in Vietnam during the Vietnam era. Therefore, he is entitled to a presumption of exposure to herbicide agents, if he has a disease listed at 38 C.F.R. § 3.309(e). See McCartt v. West, 12 Vet. App. 164 (1999) ("neither the statutory nor the regulatory presumption will satisfy the incurrence element of Caluza where the veteran has not developed a condition enumerated in either 38 U.S.C. § 1116(a) or 38 C.F.R. § 3.309(e)"). The medical record indicates that the veteran has been diagnosed as having tinea versicolor. Tinea versicolor is not among the conditions listed in the governing regulation. Further, the Secretary of the VA formally announced in the Federal Register, on August 8, 1996, that a presumption of service connection based on exposure to herbicides used in Vietnam was not warranted for "any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted." 61 Fed.Reg. 41442-41449 (1996); see also 61 Fed.Reg. 41,442-41,449 (1996) and 59 Fed.Reg. 341-346 (1994). Accordingly, under the law, the veteran is not entitled to a presumption that his diagnosed tinea versicolor is etiologically related to exposure to herbicide agents used in Vietnam. Moreover, because the veteran does not have one of the diseases listed in the above regulation, even the presumption of exposure to Agent Orange or other herbicide is not available to him. Without the benefit of presumptive service connection, he is obligated to submit an otherwise well-grounded claim. The Board notes that VA Adjudication Procedure Manual, M21-1, Part VI, para. 7.20b previously contained a more liberal interpretation of the presumption of exposure, stating that "unless there is affirmative evidence to the contrary, a veteran who served on active duty in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to an herbicide agent." However, that M21-1 provision has been revised in order to conform with the McCartt decision, and the more liberal presumption is no longer available to establish exposure. The Board notes, however, that the veteran has contended within his original claim that he was exposed to Agent Orange in service and solely for purposes of determining the well-groundedness of his claim, these contentions will be considered credible by the Board. See King v. Brown, 5 Vet. App. 19, 21 (1993) (evidentiary assertions by the veteran 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 when the fact asserted is beyond the competence of the person making the assertion). Nevertheless, even conceding for this limited purpose that the veteran experienced exposure to herbicide agents in service, the Board again notes that there is no credible evidence of record indicating that the veteran has any of the conditions specified within 38 C.F.R. § 3.309(e). Under the present law, the veteran is not entitled to a presumption that his diagnosed tinea versicolor is etiologically related to exposure to herbicide agents used in Vietnam. Further, having carefully reviewed the entire record, even conceding exposure to herbicide agents, the Board finds that there is no medical evidence of record suggesting a connection between exposure to herbicide agents and the veteran's diagnosed tinea versicolor. The veteran is not a medical expert and, for that reason, he is not competent to express an authoritative opinion regarding any medical causation or diagnosis of his condition. See Espiritu; see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In sum, as there is no medical evidence establishing an etiological relationship between the diagnosed tinea versicolor and his exposure to herbicide agents in service, the veteran has not submitted a well-grounded claim of service connection. ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for tinea versicolor is granted. Entitlement to service connection for a skin condition as secondary to exposure to herbicide agents is denied. BARBARA B. COPELAND Member, Board of Veterans' Appeals