BVA9507353 DOCKET NO. 92-53 878 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a skin condition, including a skin disorder due to exposure to Agent Orange. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Associate Counsel INTRODUCTION The veteran had active service from November 1965 to November 1968. This appeal arises from a March 1989 rating decision of the Chicago, Illinois, Regional Office (RO). In that decision, the RO denied service connection for residuals of Agent Orange exposure. The veteran currently resides in Florida, and the St. Petersburg, Florida, Regional Office is currently the RO handling his case. A federal court decision in Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989), vacated all benefit denials under 38 C.F.R. § 311a, the "Dioxin and Radiation Exposure Compensation Standards Act," and 38 U.S.C.A. § 1154(a) (West 1991), and remanded the cases to the Veterans Administration, now Department of Veterans Affairs (VA), for revision of the regulation in accordance with the ruling of the court. In May 1992, the Board remanded the veteran's claim for reconsideration under new regulations expected to be issued concerning exposure to herbicides. Final regulations were promulgated by VA in February 1994, and the claim is now back before the Board on appeal. REMAND A veteran who has had active service in the Republic of Vietnam during the Vietnam era 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. 38 C.F.R. § 3.309(e) (1994). Service records indicated that the veteran served in the Republic of Vietnam; therefore, the veteran is presumed to have been exposed to an herbicide containing dioxin, such as Agent Orange, during that service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1994). Regulations provide a list of diseases that are considered to be associated with herbicide exposure for purposes of presumptive service connection. Conditions or diseases of the skin which are included on the list of disorders associated with Agent Orange exposure are chloracne or other acneform disease consistent with chloracne, and porphyria cutanea tarda. Where either of these conditions becomes manifest to a compensable degree within one year of the veteran's last presumed exposure to Agent Orange, service incurrence will be presumed. The last day of presumed exposure shall be the last date of service in Vietnam during the Vietnam Era. See 38 C.F.R. §§ 3.307(a)(6)(ii), (iii), 3.309(e) (1994). The veteran's service medical records do not show any treatment in service for a skin condition. An outpatient treatment record from April 1967 noted, "No evidence of dermatitis from scarf - gets very nervous when wearing ring and watches also." No skin problems were noted on the veteran's separation examination in November 1968. In 1988, the veteran reported that the skin on his face had been affected by exposure to Agent Orange or other substances while he was in Vietnam. Records of VA outpatient treatment in June 1990 noted two cystic lesions on the left cheek, to be evaluated for possible excision, pitted scarring over the cheeks, and diffuse erythema over the beard area. The assessment was irritant dermatitis due to shaving. VA examination later in June 1990 revealed blackheads on the left cheek area, with no rash, tenderness or swelling. In a September 1990 hearing at the RO, the veteran stated that in the early or middle 1970s he developed bumps on his face. The veteran's most recent VA examination, which revealed some blackheads on his face, took place before VA promulgated final regulations listing skin conditions considered to be associated with Agent Orange exposure. A VA dermatology examination should be performed to determine whether the veteran currently has chloracne, another acneform disease consistent with chloracne, or porphyria cutanea tarda. If the veteran is found on examination to have chloracne or other acneform disease consistent with chloracne, or porphyria cutanea tarda, but the condition is not found to have been manifest within one year after the veteran was exposed to herbicides in service, the condition would not be presumed to have been incurred in service. 38 C.F.R. § 3.307(a)(6)(ii) (1994). Nonetheless, the veteran could establish entitlement to service connection by showing directly that his skin condition was caused by Agent Orange exposure in service. The provisions in statute and VA regulations that allow service connection through presumptions are not intended to limit service connection to circumstances in which those presumptions apply; presumptions are intended to apply when the evidence alone would not warrant service connection. 38 C.F.R. § 3.304(d) (1994). We note that the United States Court of Appeals for the Federal Circuit held that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation, even if there is no entitlement to the presumption of service incurrence. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board notes that a veteran claiming entitlement to VA benefits has the burden of submitting supporting evidence sufficient o justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In determining whether a claim is well- grounded, the supporting evidence is presumed to be true, except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet.App. 19, 21 (1993). Where the determination issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). If service records do not show the claimed disability and there is no medical evidence to link a current disability with events in service or with a service-connected disability, the claim is likely not well- grounded. See Montgomery v. Brown, 4 Vet.App. 343 (1993). Accordingly, in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991), this case is REMANDED for the following: The veteran should be scheduled for a special dermatological examination. The claims file and a copy of this remand must be made available to the examiner prior to the examination. The veteran claims that he has a skin disorder which resulted from exposure to Agent Orange during service. The examining dermatologist should be asked to provide a diagnosis for any skin disorder noted on examination. In particular, the examiner should specify whether the veteran has chloracne, another acneform disease consistent with chloracne, or porphyria cutanea tarda, and, if so, provide an opinion as to the etiology, if possible. The examiner should explain the medical findings and principles which support his or her conclusions. If the examiner does not find a skin disorder which is associated with exposure to herbicides, such as Agent Orange, this should be stated. After the completion of the foregoing development, the case should be reviewed by the originating agency, and consideration given as to whether the claim is well-grounded. If the decision remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate consideration, if otherwise in order. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).