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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 19-8685

ANTHONY M. REBICH, APPELLANT,

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before MEREDITH, Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

MEREDITH, Judge: The appellant, Anthony M. Rebich, through counsel appeals a November 6, 2019, Board of Veterans' Appeals (Board) decision that granted an effective date of August 22, 2011, but no earlier, for the award of benefits for chloracne, and denied entitlement to a disability rating in excess of 30% for that condition. Record (R.) at 4-14. The Board's assignment of an effective date as early as August 22, 2011, is a favorable finding that the Court may not disturb. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007), aff'd in part, dismissed in part sub nom. Medrano v. Shinseki, 332 F. App'x 625 (Fed. Cir. 2009); see also Bond v. Derwinski, 2 Vet.App. 376, 377 (1992) (per curiam order) ("This Court's jurisdiction is confined to the review of final Board . . . decisions which are adverse to a claimant."). The appellant raises no arguments with respect to the Board's denial of a disability rating in excess of 30% for chloracne. Accordingly, the Court considers that matter abandoned and will dismiss the appeal as to that matter. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc). The Board remanded the matter of entitlement to benefits for bladder cancer, and that matter is not before the Court at this time. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order) (a Board remand "does not represent a final decision over which this Court has jurisdiction"); Hampton v.

Gober, 10 Vet.App. 481, 483 (1997) (claims remanded by the Board may not be reviewed by the Court). This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate that part of the Board's decision denying entitlement to an effective date earlier than August 22, 2011, for the award of benefits for chloracne and remand that matter for further proceedings consistent with this decision.

I. BACKGROUND The appellant served on active duty in the U.S. Army from December 1966 to December 1969, including service in Vietnam. R. at 4467. His service medical records reflect complaints of and treatment for skin problems, including cysts in his ear, on his elbow, and behind his eyes, R. at 2380, 2384, 2396, 2402, 2412; neurodermatitis and contact dermatitis, R. at 2386, 2433; and a fungal infection, R. at 3825. Shortly after his separation from service, the appellant filed a claim for benefits for "[j]ungle [r]ot–[f]ungus." R. at 4474. At a VA medical examination in February 1970, the examiner noted "a small patch of tiny red papules grouped together" on the back of the appellant's left hand and a "large . . . erythematous patch extending across the [right] wrist and down the ulna," with "several deep fissures through the center," as well as "groups of vesicles extending into the adjacent normal appearing skin[,] causing an over[]hanging border of loose skin in places." R. at 4462. The examiner recorded the following history: [The appellant] noted the onset of vesicles on his hands in June or July 1967 while in the fighting zone in Viet Nam with the paratroopers. The vesicles appeared at the flexor surface of both wrists on the ulnar sides[,] spreading across the wrists and on to the palm of the right hand and the backs of both hands. His feet soon became involved also[,] and he was called a case of jungle rot and was treated with a cream and told that everything would clear when he returned to the United States. Upon returning to this country in February 1968[,] his rash did indeed clear completely[,] and his feet have had no further involvement. In September or October 1969[,] while still in the Army[,] the eruption recurred on his right hand and has remained ever since with some improvement and then relapses. Involvement appeared on the back of the left hand in January 1970.

Id. The examiner removed some vesicle tops and tested them for fungus, but found none. Id. The examiner also noted that both the appellant's palms were "hyperhidrotic[1] and there were a few scattered abrasions over his knuckles along with erythematous macules." R. at 4462, 4465. The examiner diagnosed "[c]hronic dyshidrosis (dishydrosiform dermatitis)" and stated that the condition was recurrent and that its cause was unknown, although "irritants and tension will precipitate attacks quite frequently." R. at 4465. In June 1970, a VA regional office (RO) granted benefits for chronic dyshidrosis and assigned a 10% disability rating, effective December 19, 1969, the day after the appellant's separation from service. R. at 4410. The RO noted the in-service treatment for neurodermatitis, contact dermatitis, and cysts, as well as the indication on the appellant's separation examination report that he had a fungal infection of the right hand. Id. In a November 1974 letter to VA, the appellant requested a medical appointment to have his "hand checked for a skin condition," as well as to have his back, legs, neck, and ears checked. R. at 4383. He noted that he had been prescribed a topical cream to treat his condition and stated that he wanted to file a claim for the condition. Id. VA afforded the appellant an examination in October 1975. R. at 4323-26. The examiner noted only a "few dry scaling areas" on the appellant's right palm and indicated that the extent of the lesions was "minimal." R. at 4324. The examiner determined that the appellant's chronic dyshidrosis was in remission. R. at 4326. Based on that examination, the RO continued the assigned 10% disability rating for the appellant's skin condition. R. at 4320-21. The record reflects that, as of April 1985, the appellant had filed a "timely preliminary claim to participate in the Agent Orange Product Liability Settlement." R. at 1856; see R. at 1857. By virtue of filing such a claim, the appellant was "enrolled in the Agent Orange Veteran Payment Program" and could apply for disability benefits. R. at 1856. In March 1990, VA advised the appellant that the recent decision in Nehmer v. U.S. Veterans' Administration might affect his entitlement to benefits based on exposure to Agent Orange.2 R. at 28. VA further advised that, once the Agency issued new regulations, it would

1 Hyperhidrosis is "excessive sweating." DORLAND'S MEDICAL DICTIONARY ONLINE, https:// www.dorlandsonline.com/dorland/definition?id=23821&searchterm=hyperhidrosis (last visited Jan. 28, 2021). 2 Nehmer was a class action in which Vietnam veterans and their survivors alleged that, in promulgating regulations governing compensation for diseases attributed to Agent Orange, VA failed to comply with the Dioxin

allow veterans whose claims had been denied after September 25, 1985, and those veterans whose claims were then pending, to present additional evidence and argument. Id. VA explained that, if a veteran had already filed a claim that had been finally denied—that is, all appeals exhausted— the Agency was not required under Nehmer to reopen the claim, but that the veteran could file a new claim. R. at 29. The appellant sought VA treatment in August 2004 for his service-connected skin condition. R. at 4130. He reported to the physician that he had been seen in the dermatology department at the Mayo Clinic but stated that "they really did not come up with a specific diagnosis" and instead prescribed several creams and medications. Id. A skin examination revealed "some minor healing excoriations on his neck, face, and arms, but no significant lesions." R. at 4131. The physician diagnosed "[d]ermatitis of unclear etiology." Id. In September 2004, the appellant sought an increased disability rating for his skin condition. R. at 4199. VA obtained private treatment records that revealed a sebaceous cyst on his face. R. at 4145, 4147. VA afforded the appellant a medical examination in January 2005. R. at 4095-96. The examiner noted that the appellant's claims file was not available. R. at 4095. After recounting the appellant's history of skin problems, including "burning, pruritic, papules" that cluster on his face, ears, neck, and hands, id., the examiner offered the following impression: "Skin disorder previously diagnosed as dyshidrotic eczema dating back to his military service in Viet Nam. It is, I believe, caused by or the result of his military service and has increased in frequency of exacerbations over the years," R. at 4096. In March 2005, the RO increased the appellant's disability rating for chronic dyshidrotic eczema to 30%, effective August 16, 2004. R. at 4117-22. The appellant did not appeal that decision. The appellant retained current counsel in February 2010. R. at 3805-08. Later that year, he sought an increased disability rating for his skin condition. R. at 3728. At a November 2010 VA skin diseases examination, the appellant reported that his eczema had gotten progressively

and Radiation Exposure Compensation Standards Act. 712 F. Supp. 1404 (N.D. Cal. 1989); see also Nehmer v. U.S. Veterans' Admin., 284 F.3d 1158 (9th Cir. 2002); Nehmer v. U.S. Veterans' Admin., 32 F. Supp. 2d 1175 (N.D. Cal. 1999). In 1991, the parties entered into a stipulation and order setting forth VA's ongoing responsibilities for further rulemaking and disability payments to class members. See Nehmer, 32 F. Supp. 2d at 1177 (describing the stipulation and order). One of the results of Nehmer is that Vietnam veterans may be eligible to receive effective dates for compensation earlier than the effective dates of regulatory changes that add a disease to the list of diseases presumed to be caused by exposure to Agent Orange. See 38 C.F.R. § 3.816 (2020).

worse and that it had been constant for the past year. R. at 3711. The examiner diagnosed chronic dyshidrotic eczema. R. at 3714. VA found the November 2010 examination report insufficient for rating purposes, R. at 3706, and obtained a new examination in January 2011, R. at 3696-702. The examiner determined that the appellant's skin condition affected 11% of his body, R. at 3698, but was not disfiguring, R. at 3699. Shortly after the examination, the RO increased the appellant's disability rating for chronic dyshidrotic eczema to 60%, effective October 27, 2010. R. at 3690-94. August 2011 VA treatment records document the appellant's continued complaints of an itchy skin rash. R. at 3334. The treating physician noted "mildly inflamed papules [with] excoriation from scratchin[g] in beard, forearm, and trunk." R. at 3335. Under the heading "Assessment/Plan," the physician wrote "[f]olliculitis–[c]hloracne?" Id. He indicated that the appellant should get another dermatology opinion and perhaps ask for an updated VA medical examination. Id. Later in August 2011, the appellant filed a claim for benefits for chloracne, R. at 3634, and requested "the review and re[]evaluation of a claim for Agent Orange contamination," R. at 3632. He reported that, since returning from Vietnam, he had experienced "substantial skin disorders and recently was affirmed with more than 60% disability chloracne." Id. VA provided the appellant a skin conditions examination in September 2011. R. at 3324-32. The examiner noted the following diagnostic history: dermatitis in August 2004, eczema in 1974 or 1975, and folliculitis in 2008. R. at 3324-25. The examiner determined that the appellant did not have acne or chloracne, vitiligo, scarring alopecia, alopecia areata, or hyperhidrosis. R. at 3330. Finally, the examiner diagnosed dermatitis of "unclear etiology" and offered the following assessment: [The appellant] reports his lesions have small white heads on them and then they fall off and present with oozing of a clear liquid that then crusts and becomes pruritic. By con[]trast[, c]hloracne is an acne-like eruption of blackheads, cysts, and pustules. [He] reports some of the asso[ci]ated symptoms of chloracne[,] such as frequent headaches and chronic diarrhea. I reviewed the electronic records as [the appellant] states that he recently discussed his [gastrointestinal (GI)] complaints with his [primary care provider]. I could find no evidence for complaints of diarrhea/GI problems or treatment of same. There is no current diagnosis for a chronic diarrhea problem. [The appellant] recently had a full workup at the Mayo Clinic Dermatology Dep[artment,] which diagnosed the current skin condition as folliculitis and prescribed some medications. He is currently service connected at 60% for eczema. Current lesions and general health

complaints are inconsistent with description of chloracne and Mayo Clinic workup failed to diagnose this condition as such.

R. at 3332. In October 2011, the RO denied the appellant's claim for benefits for chloracne, finding no evidence of a current diagnosis of that condition. R. at 3595-98. The appellant filed a Notice of Disagreement (NOD) with that decision. R. at 3540; see R. at 3546-56. At a December 2011 checkup with his treating VA physician, the appellant "continue[d] to complain of irritation from his rash." R. at 3319. His physician again diagnosed dermatitis, although he noted that he had compared the appellant's physical appearance "to photos of chloracne in visual diagnosis," that the appellant's skin was similar to that in the picture, and that it "would be difficult to distinguish from eczema" based on the physical examination. R. at 3320. In March 2012, the appellant underwent a VA skin diseases examination. R. at 3216-30. The examiner noted that he was not a dermatologist, but explained that he was "board[-]certified in internal medicine and infectious diseases and [was,] as such[,] competent and able to review this case." R. at 3229. The examiner indicated that the appellant had been diagnosed with dyshidrotic eczema in 1970 and folliculitis in 2010, R. at 3218, as well as prurigo and pruritis in 2010, R. at 3219. He found no evidence of acne or chloracne, vitiligo, scarring alopecia, alopecia areata, or hyperhidrosis. R. at 3225-26. He noted that the appellant's "primary care doctor thought that this might be [c]hloracne, but the dermatologist he sent him [t]o diagnosed him with chronic prurigo." R. at 3229. The examiner concluded that "it is more likely than not that the [appellant] suffers from a skin condition[,] and eczema is the best word used to describe that condition." Id. The appellant was assessed at a March 2013 VA skin diseases examination. R. at 2822-40. After reviewing the medical record and examining the appellant, the examiner stated: It is this examiner's medical opinion that[,] following careful review of the evidence of record, medical literature review, the lack of intercurrent complaints over a period of thirty-five (35) years[,] and current objective examination findings, the [appellant] does not have evidence of an acneiform skin disorder. Despite numerous consultations and dermatologic evaluations[, he] has not been diagnosed with ch[]loracne or another acneiform skin disorder associated with exposure to Agent Orange. The current findings/diagnosis are consistent with chronic and recurring folliculitis and dyshidrotic eczema.

R. at 2837.

In his June 2013 Substantive Appeal, filed through current counsel, the appellant argued that "[r]eports from physicians reflect an acne[i]form condition (cysts and pustules) as a chronic condition" since he left service. R. at 2672. In April 2014, he submitted a letter from a registered nurse at a private dermatology practice who wrote the following: "[The appellant] has a history of exposure to Agent Orange in [service], per [his] chronological documentation. His acne started after that exposure, specifically 5/9/68, with developing cystic acne on his ears that needed surgical drainage." R. at 1851. The nurse further stated that the appellant had "continued to struggle with acne throughout the years" and that his condition was now considered moderate to severe. Id. In July 2015, the Board granted the appellant's claim for benefits for chloracne. R. at 1887-900. The following year, the RO implemented the Board's decision and assigned a 30% disability rating, effective April 8, 2014, the date of the letter from the private dermatology nurse, which the RO stated was "the earliest date medical evidence shows a diagnosis of an acne[i]form eruption linked to Agent Orange exposure." R. at 1491. The appellant filed an NOD with that decision, seeking an effective date of January 1970, "the original date of claim." R. at 1454. Shortly thereafter, the appellant perfected his appeal to the Board. R. at 1089. The Board issued the decision on appeal in November 2019, assigning an earlier effective date of August 22, 2011, but no earlier, for the award of benefits for chloracne. R. at 6-8. This appeal followed.

II. ANALYSIS A. Parties' Arguments The appellant argues first that, because he filed a claim for benefits for jungle rot—"in keeping with the vernacular he learned during his discharge process"—in January 1970, the Board erred in finding that he did not file a claim for benefits for chloracne within one year of service. Appellant's Brief (Br.) at 15. He asserts that his service medical records "plainly show that [he] was being treated for cysts and lesions within the year of his departure from Vietnam." Id. He contends that his initial claim for benefits "cannot be considered fully adjudicated under the circumstances." Id. Second, the appellant argues that VA "abandoned its duty to assist" him following his January 1970 claim. Id. at 16. In that regard, he contends that VA failed to (1) further investigate his "in-service (1969) experience with lesions and cysts," id.; (2) "fully investigate the secondary

service connection when a fungal condition was rule[d] out," id.; (3) "finish processing his original claim" after providing him notice of the Nehmer decision, id. at 17; (4) provide a dermatology consult, id. at 18, 19; and (5) provide a "competent medical assessment of the claimed disability," id. at 20, an apparent reference to the board-certified internist who conducted the March 2012 VA skin diseases examination. Third, the appellant asserts that the Board's "date of manifestation is clear error" and asks the Court to "establish the proper date of manifestation." Id. at 21. He contends that the effective date for the award of benefits for chloracne should be either the date of his original claim (i.e., the day after his separation from service in January 1970) or the date of the liberalizing law (i.e., the date VA established presumptive service connection for chloracne based on herbicide exposure). Id. He argues that, although "[d]ifferent medical professionals may have different ways of describing [his] condition[,] . . . cystic acne[—]which is the foundation of a diagnosis of chloracne[—]has been constantly present," and therefore "[t]he manifestation of [his] chloracne condition is much earlier tha[n] the Board determined." Id. at 22. Finally, the appellant notes the Court's "discretion to compel action of the Secretary unlawfully withheld or unreasonably delayed." Id. at 23 (citing 38 U.S.C. § 7261(a)(2)). He requests that, pursuant to that authority, the Court "fix a retroactive date of compensation upon the facts found, or provide specific instruction for the [B]oard [to] act expeditiously to resolve his claim." Id. For his part, the Secretary disputes these arguments, asserting that the Board's determination that the appellant did not file a claim for benefits for chloracne prior to August 22, 2011, is not clearly erroneous and is supported by adequate reasons or bases. Secretary's Br. at 11-24. Accordingly, he asks the Court to affirm the Board decision. Id. at 24. B. Discussion To begin, the appellant alleges that the effective date for chloracne should be based on the claim he filed shortly after discharge from service because it has not been finally adjudicated as to that condition. Appellant's Br. at 15; see Turner v. Shulkin, 29 Vet.App. 207, 211 (2018) ("As a general matter, when an RO renders a decision on a claim and the claimant does not timely appeal, the decision becomes final."), abrogated on other grounds by Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020); Ingram v. Nicholson, 21 Vet.App. 232, 241 (2006) (per curiam) (stating that, as part of an appeal of an effective-date decision, an appellant may raise the fact that he or she filed an

original claim for the same disability at an earlier date than the claim that was subsequently granted). The parties disagree as to whether the appellant's January 1970 claim for "jungle rot" was broad enough to encompass a claim for chloracne, given the evidence in the appellant's service medical records. See Appellant's Br. at 14-15; Secretary's Br. at 14-17; Reply Br. at 4-5. The Board's discussion, however, was limited to the following: The [appellant] first filed a claim for chloracne August 22, 2011. Prior to that date, he had filed a claim for "jungle rot" in 1969, which resulted in a grant of service connection for chronic dyshidrotic eczema. At no point prior to August 22, 2011[,] did [he] challenge the characterization of that skin disability or file a claim for a separate skin disability. Therefore, an effective date prior to August 22, 2011[,] for chloracne is not warranted.

R. at 8. The Board's explanation is inadequate to permit the Court to assess the parties' arguments. The Board considered only whether the appellant expressly filed a claim for benefits for chloracne prior to August 22, 2011. It did not consider the scope of the appellant's January 1970 claim, nor did it make a finding regarding the finality of the June 1970 RO decision. The appellant, through current counsel, raised several times below the possibility that his January 1970 claim for benefits for a skin condition encompassed skin conditions for which he was treated in service and remained pending. See R. at 614-15, 617-18, 620, 623 (all June 2019 Board hearing transcript); 1088-89 (July 2016 Substantive Appeal); 1453-54 (April 2016 NOD). The Court may not resolve this factual dispute or evaluate its potential effect on the Board's findings. See Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) ("[T]he evaluation and weighing of evidence are factual determinations committed to the discretion of the factfinder—in this case, the Board."); Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) ("[A]ppellate tribunals are not appropriate fora for initial fact finding."); see also 38 U.S.C. § 7261(c). Although the Secretary argues that the January 1970 claim did not include chloracne and that the June 1970 RO decision represented a complete grant of benefits that the appellant did not appeal, see Secretary's Br. at 14-17, the Board made no such findings and the Court cannot accept the Secretary's litigating position. See Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 (1991) ("[A]gency 'litigating positions' are not entitled to deference when they are merely appellate counsel's 'post hoc rationalizations' for agency action, advanced for the first time in the reviewing court."); Evans v. Shinseki, 25 Vet.App. 7, 16 (2011) ("[I]t is the Board that

is required to provide a complete statement of reasons or bases, and the Secretary cannot make up for its failure to do so."). Remand is thus warranted. Given this disposition, the Court will not now address the remaining arguments and issues raised by the appellant. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (noting that "the Court will not ordinarily consider additional allegations of error that have been rendered moot by the Court's opinion or that would require the Court to issue an advisory opinion"); Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order). On remand, the appellant is free to submit additional evidence and argument on the remanded matter, including the specific arguments raised here on appeal, and the Board is required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to the benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court reminds the Board that "[a] remand is meant to entail a critical examination of the justification for the decision," Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and the Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112. Finally, to the extent that the appellant discusses or alleges disagreements with evidence of record relating to his claims for benefits for bilateral hearing loss, tinnitus, and syncope, see Appellant's Br. at 5-7, 17-18, those claims are not on appeal and the Court may not address them. See Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998) ("[T]he court's jurisdiction is premised on and defined by the Board's decision concerning the matter being appealed.").

III. CONCLUSION The appeal of the Board's November 6, 2019, decision denying entitlement to a disability rating in excess of 30% for chloracne is DISMISSED. After consideration of the parties' pleadings and a review of the record, the Board's decision denying entitlement to an effective date earlier than August 22, 2011, for the award of benefits for chloracne is VACATED and the matter is REMANDED for further proceedings consistent with this decision.

DATED: February 11, 2021

Copies to:

Peter F. Carroll, Esq.

VA General Counsel (027)