Citation Nr: 1314136 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 02-03 388A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a skin disability, to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran had active service from November 1965 to November 1967. He served in the Republic of Vietnam from August 1966 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the service connection claim listed on the title page of this decision was readjudicated in a February 2002 rating decision. The February 2002 decision was a reconsideration of the same service connection claims that had previously been denied in the July 2000 rating decision as not well-grounded. See Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096, 2099, §7(b); VAOPGCPREC 3-2001 (Jan. 22, 2001) (providing for reconsideration of claims, such as this one, that became final between July 14, 1999 and November 9, 2000, the date of the enactment of the VCAA, and were denied on the basis that they were not well-grounded). This matter was previously before the Board in May 2003, July 2004, December 2006, June 2008, January 2009, August 2011, and September 2012. For purposes of clarity, the record shows that the Board denied the Veteran's claims of entitlement to service connection for a skin disability, to include as due to exposure to Agent Orange, and headaches, to include as secondary to service-connected spinal meningitis, in a December 2006 decision (since this time, the claim for service connection for headaches has been granted). The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In November 2007, the Veteran's attorney and a representative of the VA Office of General Counsel, on behalf of the Secretary, filed a Joint Motion for Remand (Joint Motion). In a November 2007 Order, the Court granted the Joint Motion, vacated the Board's December 2006 decision, and remanded the matters to the Board for action consistent with the Joint Motion. Thereafter, the Board issued a decision in June 2008 that again denied service connection for a skin disability, to include as due to exposure to Agent Orange. An Order by the Court, dated in September 2008, granted an Appellee's Motion for Partial Remand that partially vacated the June 2008 Board decision and remanded for action in accordance with the foregoing motion. In January 2009, the Board again issued a decision denying service connection for a skin disability, to include as due to exposure to Agent Orange. The Veteran appealed the decision to the Court. In January 2011, the Court issued a memorandum decision which set aside the Board's January 2009 decision and remanded the claim for further proceedings consistent with the decision. In August 2011 and September 2012, the Board remanded the Veteran's claim for additional development. The case has now been returned for further review. FINDING OF FACT The most competent and probative evidence does not relate a current skin disability to active service to include as due to herbicide exposure. CONCLUSION OF LAW A skin disability was not incurred in, or aggravated by, active service and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, it will assist in substantiating or that is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In correspondence to the Veteran in July 2004 and September 2011, VA informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board acknowledges that the letters were sent after the initial adjudication of the Veteran's claim. However, the claim was readjudicated by July 2005 and July 2012 supplemental statements of the case. Therefore, any defect in the timing of the notice of this information was harmless. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. 396 (2009). The VCAA requires that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds the VCAA notice requirements have been met in this case. Duty to assist With regard to the duty to assist, the claims file contains the Veteran's service treatment records (STRs), VA medical records, and the Veteran's statements in support of his claim. VA medical records were obtained in accordance with the Board's August 2011 remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a further duty to obtain. VA examinations were provided in September 2001, March 2003, October 2003, November 2011, and an addendum opinion was provided in October 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that the January 2011 Court's memorandum decision found that the Board erred in its reliance on the March 2003 and October 2003 examination reports as the March 2003 VA examiner limited the inquiry to the Veteran's rosacea and the October 2003 VA examiner provided a conclusory analysis and gave no credence to the Veteran's lay statements. In August 2011, the Board remanded the Veteran's claim for a new VA examination. A VA examination was provided in November 2011. The examiner listed the diagnoses, noted that the Veteran's diagnosed disabilities were not conditions associated with Agent Orange exposure, the records available did not document a chronic skin condition since military discharge in 1967, and his service records failed to document a skin rash or treatment in the service. The examiner noted that most significant was the report of medical history completed by the Veteran that he completed at the time of his separation examination that was negative per the Veteran for any skin condition. In September 2012, the Board remanded the Veteran's case for an addendum opinion from the November 2011 VA examiner with regard to the Veteran's statements regarding the onset of his skin disability. In October 2012, the examiner provided an addendum opinion. The examiner explained that the Veteran's statements were reviewed and the prior opinion was unchanged. The examiner commented that the objective data did not support the Veteran's statements. Here, the Board finds that the remand instructions were substantially completed and, cumulatively, the November 2011 and October 2012 examination and opinions are adequate. The examiner explained that the extensive claims file was reviewed including the Veteran's statements, but that the objective data did not support the Veteran's assertions. In the November 2011 examination report, the examiner provided the rationale behind the expressed medical opinion by noting that the Veteran specifically denied experiencing skin disease during active service, which the examiner found significant, and that he was not treated during service and the record did not reveal objective treatment for decades after separation from active service. Thus, the Board finds that the opinions are adequate and the remands have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). In a statement dated in December 2003, the Veteran requests that the Board obtain a medical opinion under the provisions of 38 C.F.R. § 3.328. Nevertheless, after reviewing the medical evidence described above, the Board does not believe that the there are any medical questions presented in this case which warrant such an opinion. The Veteran has failed to explain how the medical history in this case involves medical complexity requiring the opinion of an independent expert. 38 C.F.R. § 3.328(a)-(b); see also 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (noting that VA does not have an affirmative duty to obtain an examination of a claimant or a medical opinion from Department healthcare facilities if the evidence of record contains adequate evidence to decide a claim). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal criteria Service connection - in general Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred, or a disease contracted, in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Also, 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, shall be presumed to have been exposed during such service to an herbicide agent (like the dioxin in Agent Orange), unless there is affirmative evidence establishing he was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f). 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, with an exception not applicable to this case. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.308(a)(6)(ii). These diseases include chloracne or other acneform disease consistent with chloracne, Type II Diabetes Mellitus, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, Parkinson's disease, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), AL amyloidosis, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010). The Secretary of VA, however, has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for the following specific conditions: cancer of the oral cavity (including lips and tongue, pharynx (including tonsils), or nasal cavity (including ears and sinuses); cancers of the pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic organs; esophageal cancer; stomach cancer; colorectal cancer (including small intestine and anus); hepatobiliary cancers (liver, gallbladder and bile ducts); pancreatic cancer; bone and joint cancer; melanoma; non-melanoma skin cancer (basal cell and squamous cell); nasopharyngeal cancer, breast cancer, cancers of reproductive organs (cervix, uterus, ovary, testes, and penis; excluding prostate); urinary bladder cancer; renal cancer; cancers of brain and nervous system (including eye); endocrine cancers (thyroid, thymus, and other endocrine; cancers at other and unspecified sites; neurobehavioral disorders (cognitive and neuropsychiatric); amyotrophic lateral sclerosis (ALS); chronic peripheral nervous system disorders; respiratory disorders; gastrointestinal immune system disorders (immune suppression, allergy, and autoimmunity); circulatory disorders (including hypertension); endometriosis; effects on thyroid homeostasis; certain reproductive effects, and, any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21, 258-21260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). In Robinson v. Shinseki, 312 Fed. Appx. 336 (2009), the Court held that, in some cases, lay evidence will be competent and credible evidence of etiology. Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance. The Court set forth a two-step analysis to evaluate the competency of lay evidence. First, Board must first determine whether the disability is the type of injury for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record-including, if the Board so chooses, the fact that the Veteran has not provided any in-service record documenting his claimed injury - to determine whether to grant service connection. The Board observes that this Federal Circuit decision is nonprecedential. However, see Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) [a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains"]. The Board believes that if Bethea applies to the utility of Court decisions, it surely applies to the utility of a decision of a superior tribunal, the Federal Circuit. 557 F.3d 1355 (Fed. Cir. 2009). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. First, the Board will address whether service connection on a presumptive basis is warranted. The record shows that the Veteran served in Vietnam during the prescribed time period. However, the Veteran's skin disorders are not among the diseases listed as presumptively service connected. Therefore, service connection on a presumptive basis is not warranted. However, the regulations governing presumptive service connection for Agent Orange do not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (1994). Therefore, entitlement to service connection is considered on this basis as well. The Veteran avers that he has a skin disability that is related to active service. In the present case, the Veteran was diagnosed with rosacea of the face at VA examinations in September 2001 and March 2003. In addition, a VA examiner diagnosed the Veteran with eczema involving the face, neck, and right lower extremity in October 2003. Based on this evidence, the Board finds a current skin disability has been clinically demonstrated, and the first element of service connection has been satisfied. In this case, the service treatment records are absent for any complaints, diagnosis, or treatment for rosacea, eczema, or any other skin disability. The Veteran's separation medical examination report reflects that his skin was examined and it was found to be normal. Further, the Veteran's report of medical history at separation does not reflect any complaints related to problems with his skin. The first post-service reference to a skin disability was in the Veteran's application for VA benefits, received in January 2000, where he noted that he had had no medical treatment since service except for self-medication with aspirin, Advil, eye drops, and Cortisone ointment/salves. The Veteran was provided a VA examination in September 2001. The examiner reviewed the claims folder and VA treatment records and the Veteran was diagnosed with rosacea of the face. The Veteran was provided another VA examination in March 2003. The Veteran was diagnosed with facial rosacea. The claims folder was noted and reviewed. The examiner opined that the facial rosacea was mild and that it could not be related to service without resorting to speculation. See 38 C.F.R. § 3.102 (2012) (noting that the Board may not award benefits when the award would be based upon pure speculation). The March 2003 VA examiner's rationale included the lack of evidence in the claims folder of a skin condition being noted in service. The VA examiner further commented, to the best of his/her knowledge, that there is no established association between facial rosacea and exposure to herbicides. Another VA examination was provided in October 2003. The examiner had the claims folder for review. The Veteran was diagnosed with eczema involving the face, neck, and right lower extremity, unlikely related to Agent Orange exposure. The VA examiner noted that he was unable to find any treatment for eczema in the service treatment records. He also stated that, if the Veteran had been treated for eczema in service, it would be likely that his current skin disability is related. However, if the Veteran was not treated for eczema in service, then it is unlikely that his current skin disability is related. The Veteran was provided a VA examination in November 2011. The entire claims file was reviewed. The examiner noted that the Veteran reported that he was seen and treated in Vietnam for a skin condition, but that his records did not document any treatment or history of a chronic skin condition. The Veteran's report of medical history per claims file was negative for any skin condition at the time of his military discharge. The Veteran also stated that his health was good at this time. No mention of any skin condition noted from his flight physical dated in January 1967. After review of all records, the examiner noted that the Veteran was diagnosed with recurrent folliculitis and recurrent eczema. It was noted that no records of treatment were available from medical discharge in 1967 until the late 1990s. The examiner noted that VA presumes chloracne as related to Agent Orange or other herbicides during military service. It was noted that chloracne is a well established, long-term effect of exposure to TCDD or dioxin, a contaminant in Agent Orange. It was the only skin disorder consistently reported to be associated specifically with Agent Orange and other herbicides. The examiner opined that the Veteran's skin conditions were not caused by or a result of military service to include exposure to Agent Orange. The rationale provided by the examiner was there was no evidence of any skin condition related to Agent Orange exposure. As per medical literature review, the skin condition recognized with Agent Orange is chloracne. The Veteran clearly did not have this condition and folliculitis and eczema are not conditions associated with Agent Orange exposure. The examiner explained that a complete review of service records failed to document a skin rash/treatment in the service. Most significant is the report that the Veteran completed at the time of his separation examination that was negative per the Veteran for any skin condition along with the negative skin examination from his physical. There were also no medical records available that document a chronic skin condition since his military discharge in 1967. No evidence after extensive review that the condition is related to military service. In the September 2012 remand, the Board requested that the November 2011 examiner provide another opinion as no apparent consideration was given to the lay evidence of the Veteran regarding the onset and course of his claimed skin disorder dating to his period of military service. In October 2012, another opinion was provided. The examiner noted that after complete review of the claims file including the credible statements from the Veteran, the opinion was unchanged from the previous opinion completed in November 2011. The examiner stated that the medical opinion was completed after complete claims file review including all service medical records and detailed review of CPRS/VISTA web. The medical literature to support the opinion was also completed at the time of this last opinion and is as noted. The objective data does not support the Veteran's statements. In an August 2012 VA treatment record, a VA physician's assistant stated that the Veteran had been suffering from a rash that started in 1966 during his Vietnam service and that other soldiers noted a rash on his face and that it has been intermittent. C.D. stated that the rash is chronic in nature and has been treated symptomatically to date. In consideration of all of the above and review of the entire record, the Board finds that the November 2011 VA examiner's opinion and the October 2012 addendum opinion are the most competent and probative evidence regarding the etiology of the Veteran's skin disability. The VA examiner reviewed the claims file including the service treatment records, examined the Veteran, and provided a supporting rationale for the conclusions reached. With respect to the Veteran's statements regarding the onset of his disability, the examiner stated that the objective data did not support the Veteran's assertions. Indeed, in the November 2011 opinion, the examiner explained that she found significant that the Veteran denied experiencing any skin diseases during active service, which is contrary to his more recent assertions. In comparison to the VA examiner's opinions, C.D., a VA physician's assistant, stated that the Veteran had been suffering from a rash that started in 1966 during his Vietnam service and that other soldiers noted a rash on his face and that it has been intermittent. C.D. stated that the rash is chronic in nature and has been treated symptomatically to date. However, the Board finds that the VA examiner's opinions are more probative. As noted above, the examiner reviewed the service treatment records, referenced relevant medical literature, the Veteran's statements, and provided a negative nexus opinion. As noted by the VA examiner, the service treatment records do not reveal any skin problems or complaints and the Veteran denied experiencing a skin disease upon separation from active service, which does not appear to have been considered by C.D. Thus, the probative value of C.D.'s opinion that the rash has been chronic since 1966 is diminished in comparison to the November 2011 and October 2012 VA opinions. Therefore, the VA examiner's opinions are more probative regarding the etiology of the Veteran's skin disability and service connection is not warranted. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Finally, the Board notes that the March 2003 examiner's opinion was not found to be adequate with respect to etiology due to the notation that the examiner was unable to resolve the issue without resorting to speculation. However, the Board still finds the examiner's opinion regarding the connection between rosacea and Agent Orange to be probative as the examiner noted that, to the best of his/her knowledge, there was no established association between facial rosacea and exposure to herbicides. The Board recognizes that the Veteran is competent to provide statements regarding his lay-observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Circ. 2006). However, the Veteran is not competent to provide an opinion as to whether any of his current skin disabilities are causally or etiologically related to active service. The origin of a skin disability is considered to be a complex medical issue. The Veteran has consistently stated that the skin disorder that he experiences now first appeared during active service and that he was treated during active service. Even if the Veteran were competent to state that the alleged rash that he experienced during service is the same skin disorder that he currently has, the Board does not find that the Veteran is credible with respect to his reports of onset. First, there is no objective evidence of treatment of a skin disorder for decades after separation from active service. This is but one factor that weighs against the Veteran's reports of onset. Further, the Veteran's current recollections are contrary to his statements made at separation from active service. In his report of medical history, he denied experiencing any skin diseases. This is inconsistent with his current statements that he had a skin disorder during service and was treated. See Curry v. Brown, 7 Vet. App. 59 (1994) (contemporaneous evidence can have greater probative value than inconsistent testimony provided by the claimant at a later date). Thus, the Board finds that the Veteran's statements regarding the onset of his disability are not credible. In addition, with respect to his belief that his disorders are related to exposure to Agent Orange during active service and otherwise related to active service, the Board assigns more probative value to that of the VA examiner's opinions provided in November 2011 and October 2012. The VA examiner also noted that the objective data did not support the Veteran's assertions, cited medical literature in noting that the Veteran's skin disorders were not associated with Agent Orange exposure, and that the Veteran denied experiencing skin diseases upon separation from active service. Therefore, service connection is not warranted. With respect to continuity of symptomatology, the Federal Circuit recently held that continuity of symtomatology under 38 C.F.R. § 3.303(b) only applies to those conditions recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's diagnosed skin disabilities are not listed as chronic conditions. Therefore, service connection based on continuity of symptomatology is not warranted. In light of the above, the Board finds that service connection is not warranted. The most competent and probative evidence is against a finding that the Veteran has a current skin disability that had its onset or is otherwise causally related to active service. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for a skin disability, to include as due to Agent Orange exposure, is denied. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs