Bva - Cue Granted - Rvn - Skin Disorder - Ao

[carlie]

http://www.va.gov/vetapp13/Files2/1313765.txt

Citation Nr: 1313765

Decision Date: 04/24/13 Archive Date: 05/03/13

DOCKET NO. 13-09 571 ) DATE

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THE ISSUE

Whether the August 25, 1986 decision by the Board of Veterans Appeals that denied service connection for a skin disorder, to include as due to Agent Orange exposure, should be revised or reversed on the grounds of clear and unmistakable error.

(The issue of entitlement to an effective date prior to April 18, 2005 for the grant of entitlement to service connection for chloracne is the subject of a separate appellate action.)

REPRESENTATION

Moving party represented by: Polly Murphy, Attorney at Law

APPEARANCE AT ORAL ARGUMENT

Appellant and Spouse

ATTORNEY FOR THE BOARD

Shereen Marcus

INTRODUCTION

The moving party served on active duty from August 1968 to August 1970. This matter comes to the Board of Veterans' Appeals (Board) under 38 U.S.C.A. § 7111 (West 2002) pursuant to a September 2011 motion by the moving party alleging clear and unmistakable error (CUE) in an August 25, 1986 decision, wherein service connection for a skin disorder, to include as due to Agent Orange exposure, was denied.

FINDINGS OF FACT

1. By a decision entered in an August 25, 1986, the Board found that service connection was not warranted for a skin disorder, specifically seborrheic dermatitis of the hands, chest, and back, to include as due to Agent Orange exposure.

2. The August 1986 Board decision was not supported by the evidence then of record, was not consistent with the applicable law and regulations existing at that time, and contains an error which, had it not been made, would have manifestly changed the outcome of the claim.

CONCLUSION OF LAW

The August 25, 1986 Board decision that denied service connection for a skin disorder, claimed as residuals of Agent Orange exposure, contained CUE. 38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. § 20.1403 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

A decision issued by the Board is final. 38 U.S.C.A. §§ 7103, 7104(a) (West 2002); 38 C.F.R. §§ 20.1100, 20.1104 (2012). A final Board decision, however, may be revised or reversed on the grounds of CUE. 38 U.S.C.A. § 7111(a). To determine whether CUE was present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Id.; see also Damrel v. Brown, 6 Vet. App. 242 (1994). A claim of CUE is a collateral attack on a final decision by a VA Regional Office or the Board. Cook v. Principi, 318 F.3d 1334, 1342 (Fed. Cir. 2002) (en banc), cert. denied, 123 S. Ct. 2574 (2003); Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999).

CUE is a very specific and rare kind of error. 38 C.F.R. § 20.1403(a). The mere misinterpretation of facts does not constitute CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). CUE does not include a change in medical diagnosis that corrects an earlier diagnosis considered in a Board decision, VA's failure to fulfill the duty to assist, or a disagreement as to how the facts were weighed or evaluated. See 38 C.F.R. § 20.1403(d) (2012); see also Cook, 318 F.3d at 1380.

The Veteran filed a claim for entitlement to service connection for "Agent Orange exposure" in December 1984. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 310 (1984); 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Any veteran that served in the Republic of Vietnam during the Vietnam era was presumed to have been exposed to Agent Orange herbicides. 38 C.F.R. § 3.307(d) (1984). Pursuant to the Dioxin Act of 1984, the pertinent law included

chloracne as a disorder which was presumptively linked to Agent Orange exposure. See 38 C.F.R. § 3.311a(d) (1984).

In this case, the Veteran served in the Republic of Vietnam during the Vietnam era and therefore is presumed to have been exposed to Agent Orange herbicides.

The Veteran was afforded a VA dermatology examination in March 1985 where the examiner noted on examination mild eczema of the hands, seborrheic dermatitis, and "scattered dilated open comedones" of the chest and back. The diagnoses were Agent orange exposure with typical cutaneous sequelae; popholyx of the hands, with a history of atopy; and mild seborrheic dermatitis. Also of record at that time were lay statements from the Veteran and his wife indicating that they observed skin lesions on the Veteran's chest and back since 1969.

The Board issued a decision dated August 25, 1986, which denied entitlement to service connection for seborrheic dermatitis of the hands, back and chest. In finding that service connection was not warranted, the Board considered the March 1985 VA examination, and the Veteran's contentions of "skin problems" since service, but only considered the diagnosis of dermatitis in rendering its decision. The Board did not address the other skin diagnoses found by the examiner. Rather, the Board associated the seborrheic dermatitis with his skin problems on his hands, chest, and back despite it being apparent from the 1985 examination report that the various body areas were affected by differing diagnoses. The Board found that as the Veteran's service treatment records were silent as to any complaints, treatment, or diagnoses of a skin disorder, and there was no current nexus between the dermatitis diagnosis and service, service connection was not warranted.

During the Veteran's hearing before the Board in September 2011, the Veteran's attorney raised a motion on the Veteran's behalf for revision of the August 25, 1986 Board decision on the basis of CUE, arguing that the Board did not properly consider all the skin diagnoses listed in the 1985 VA dermatology examination, specifically the diagnosis of "typical cutaneous sequelae," which was specifically

linked to Agent Orange exposure by the examiner. The attorney further argued that the medical evidence, was in clear contrast to the Board's 1986 decision that there was no nexus between a skin disorder and the Veteran's military service.

After thorough review, the Board finds that the August 25, 1986 decision contains CUE with regard to its denial of service connection for a skin disorder. The Board's analysis was limited to only one of the three diagnosed skin diagnoses found in the 1985 VA examination. Importantly, one of the diagnoses was specifically linked to the Veteran's in-service Agent Orange exposure. Although this diagnosis was clear on its face that it was chloracne, and therefore could be presumed to be related to the Veteran's Agent Orange exposure; however, in this case, the examiner directly linked "typical cutaneous sequelae" with the Veteran's in-service Agent Orange exposure. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d).

Because the 1986 Board decision did not consider this specific diagnosis, which was reasonably encompassed by the Veteran's claim seeking entitlement to service connection for "Agent Orange exposure," and the positive nexus opinion proffered, the claim was denied.

Given the record at the time of the August 25, 1986 decision, the Board finds that the evidence supported a grant of entitlement to service connection for a skin disorder diagnosed as typical cutaneous sequelae, as due to Agent Orange exposure.

Error has been identified in the Board's August 1986 decision that would have manifestly changed the outcome had it not been committed. For these reasons, the Board finds that CUE existed in the August 25 1986 decision, and the benefit sought by the motion for reversal or revision of the August 25, 1986 decision denying entitlement to service connection for a skin disorder, claimed as residuals of Agent Orange exposure, on the grounds of CUE, must be granted.

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ORDER

The benefit sought by the motion for revision or reversal of the August 25, 1986 Board decision that denied entitlement to service connection for a skin disorder, to include as due to Agent Orange, is granted.

____________________________________________

JOY A. MCDONALD

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

[Berta]

GREAT Work Carlie, these cases you posted are wonderful.

In this case re: the AO this is the key part:

“The Board's analysis was limited to only one of the three diagnosed skin diagnoses found in the 1985 VA examination. Importantly, one of the diagnoses was specifically linked to the Veteran's in-service Agent Orange exposure. Although this diagnosis was clear on its face that it was chloracne, and therefore could be presumed to be related to the Veteran's Agent Orange exposure; however, in this case, the examiner directly linked "typical cutaneous sequelae" with the Veteran's in-service Agent Orange exposure. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d).

Because the 1986 Board decision did not consider this specific diagnosis, which was reasonably encompassed by the Veteran's claim seeking entitlement to service connection for "Agent Orange exposure," and the positive nexus opinion proffered, the claim was denied. “

The legal error they made was a violation of evidentary requirements of 38 CFR 4.6.

I think the examiner deliberately called the “clear on its face” chloracne diagnosis , instead,

"typical cutaneous sequelae",, just to make sure VA didnt award the claim. That sucks but the veteran prevailed!!!!!!

This is a Great example of a successful CUE !