Citation Nr: 18124048
Decision Date: 08/06/18	Archive Date: 08/03/18

DOCKET NO. 13-18 734
DATE:	August 6, 2018
Entitlement to service connection for a skin disability, to include as due to herbicide exposure, is denied.
The competent evidence of record does not show that it is at least as likely as not that the Veteran’s skin disability was caused by or otherwise etiologically related to his active service on a presumptive or non-presumptive direct-incurrence basis.
The criteria for entitlement to service connection for a skin disability, to include dermatitis, acne vulgaris, and folliculitis, have not been met.  38 U.S.C. §§ 1110, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017).
The Veteran had active service from July 1969 to March 1971.  This matter comes to the Board on appeal from a September 2012 rating decision.  The Veteran testified before the undersigned Veterans Law Judge in April 2015.  A transcript of that hearing is of record.  This matter was previously before the Board in July 2015 and June 2017, when it was remanded for further development.  The matter now returns to the Board for appellate consideration.  
Entitlement to service connection for a skin disability, to include as due to herbicide exposure 
Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017).  To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Certain diseases, such as chloracne or other acneform disease consistent with chloracne, may be presumed to have been incurred in service where a Veteran was exposed to herbicide agents, such as Agent Orange, while on active service, even when there is no evidence of such exposure during the period of service.  38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307 (a) (6), 3.309 (e) (2017).  Veterans who served in the Republic of Vietnam during the Vietnam Era are presumed to have been exposed to herbicide agents.  38 C.F.R. § 3.307 (a) (6) (iii).  Generally, the regulation applies where an enumerated disease becomes manifest to a compensable degree at any time after active service.  38 C.F.R. § 3.307 (a) (6) (ii).  
As to an in-service disease or injury, the Veteran’s DD Form 214 indicates that he served in the Republic of Vietnam for at least a portion of his active service.  Therefore, he is presumed to have been exposed to Agent Orange during his active service.  See 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a) (6) (iii).
The Veteran contends that he has had a skin rash since 1971.  He states that he was seen for a skin condition in service, but that the records are missing. He also states that he first noticed the rash after service.  A June 1971 doctor’s note shows the skin as normal.  A medical history report from 1985 shows a report of intermittent rash on the back, although an examination was normal.  A June 2012 VA treatment record showed the Veteran reporting pimples on the back of his neck since service.  The examination did show raised lesions on the back of the Veteran’s head.  The provider’s assessment was that the Veteran had “dermatitis/NOS, probably acne vulgaris.” An April 2013 dermatology consult shows the Veteran reporting that he had scalp issues shortly after service.  He was diagnosed with chronic folliculitis.  
The Veteran attended a VA examination in November 2015 to determine the nature and etiology of the Veteran’s claimed skin condition.  The examiner discussed the lack of evidence of a skin condition, and that 40 years after service there is a record of acne vulgaris.  The examiner noted a lay witness statement from the Veteran’s son that he had noticed a skin rash for about 40 years.  The examiner also acknowledged the Veteran’s reports that he was seen for a skin condition at the VA shortly after service, but that the records were missing.  The examiner did not offer a nexus opinion.  An addendum opinion was obtained in July 2017.  The examiner opined that the Veteran’s claimed conditions were less likely than not incurred in or caused by service.  The examiner noted that there is no evidence of a skin condition in service or shortly after separation.  The examiner acknowledged the Veteran’s complaints with regard to a continuous rash since service and the findings of a rash in 1985.  The examiner also noted the diagnosis of probable acne vulgaris and folliculitis.  The examiner stated that there is no medical evidence to support a diagnosis of acne vulgaris, a condition associated with Agent Orange exposure.  The examiner also stated that folliculitis is not associated with exposure to Agent Orange.  Further, the examiner noted that a 42-year gap between service and medical diagnosis is not supportive of direct service connection.  The examiner also clarified that the diagnosis of dermatitis, NOS referred to an unknown diagnosis that was later clarified.  The examiner cited to an Agent Orange newsletter from the VA.  
With regard to presumptive service connection, the Board affords greater probative weight to the 2017 VA examiner’s finding that the Veteran does not have acne vulgaris, as the diagnosis of acne vulgaris in VA treatment records was probable, and thus, uncertain.  The VA examiner applied their medical expertise and reviewed the entire record in determining that there was insufficient evidence to find an acne diagnosis.  As such, the record does not show that the Veteran has any skin condition for which presumptive service connection may be awarded on the basis of herbicide exposure.  As such, entitlement to service connection for a skin disability on a presumptive basis due to in-service exposure to Agent Orange is not warranted.
With regard to nonpresumptive direct service connection, the Board similarly affords greater probative weight to the findings of the 2017 VA examiner.  While lay witnesses and the Veteran are competent to contend that the Veteran had a rash since service, they are not considered competent to attribute such a rash to a specific medical etiology, as they have not been shown to possess the requisite medical expertise.  The record is absent competent evidence directly relating the Veteran’s skin conditions to service.  The examiner addressed each of the Veteran’s separate skins diagnoses present in the record, and determined that none of them were incurred in or caused by service, to include herbicide exposure.  As such, entitlement to service connection for a skin disability is also not warranted on a non-presumptive direct-incurrence basis.  The preponderance of the evidence is against a finding of service connection for a skin disability.  Consequently, the 
benefit-of-the-doubt rule is not for application, and the claim must be denied.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990)
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Baker, Associate Counsel 

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