Citation Nr: 1326011 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 09-10 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to herbicide exposure. 2. Entitlement to service connection for a rash and skin lesions, to include as due to herbicide exposure. 3. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and D.B. ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty with the United States Army from March 1962 to May 1965, to include a period of service in Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in August 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied service connection for COPD and a skin disorder, as well as denied entitlement to a TDIU. In February 2013, the Veteran provided testimony before the undersigned Acting Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. The Veteran's claims were remanded for additional development by the Board in April 2013. The requested development having been completed, the above issues again are before the Board. In addition, the April 2013 Board determination referred the issues of whether new and material evidence had been submitted to reopen a claim of service connection for posttraumatic stress disorder (PTSD) and entitlement to service connection for an acquired psychiatric disorder. In a May 2013 memorandum, the Appeals Management Center (AMC) that handled the remanded issues referred the issues to the RO in accordance with the Board's instructions. As such, no further action on these matters is required by the Board at this time. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure review of the totality of the evidence. FINDINGS OF FACT 1. The Veteran had service in the Republic of Vietnam during the Vietnam era, and he is presumed to have been exposed to Agent Orange or other herbicide agents during that time. 2. The preponderance of the evidence is against finding that the Veteran's COPD or other respiratory disability is etiologically related to a disease, injury, or event in service, to include exposure to herbicides including Agent Orange. 3. The preponderance of the evidence is against finding that the Veteran has a skin disability, to include psoriasis, that is etiologically related to a disease, injury, or event in service, to include exposure to herbicides including Agent Orange. 4. The Veteran has no service-connected disabilities. CONCLUSIONS OF LAW 1. A respiratory disability, to include COPD, was not incurred in or otherwise related to service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. A skin disability, to include psoriasis, was not incurred in or otherwise related to service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 3. The criteria for entitlement to a TDIU have not been met as a matter of law. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). VA's Duties to Notify and Assist With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 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, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. In this case, a letter dated in June 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As noted above, the Veteran also was afforded a hearing before the undersigned Acting Veterans Law Judge (AVLJ) during which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the officer who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the AVLJ fully explained the issues on appeal during the hearing and specifically discussed the bases of the prior determination, the element(s) of the claims that were lacking to substantiate the claims for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claims. Indeed, based in part on the evidence elicited during the hearing the Board remanded the Veteran's claim in an effort to obtain records from the Social Security Administration (SSA). Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of entitlement to service connection and entitlement to a TDIU. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Efforts to obtain records from SSA have proven unsuccessful. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. As to service connection claims, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claims, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Board concludes that a VA examination is not necessary for either the skin or respiratory claim. As will be discussed in greater detail below, the Board believes that there is no credible evidence suggesting an association between any alleged current skin or respiratory disability and any event, injury, or disease in service. Specifically, there is no credible evidence of continuity of symptomatology from service and no competent and credible evidence otherwise linking any current COPD, psoriasis, or other respiratory or skin disability to the Veteran's military service, to include exposure to herbicides. Thus, VA is not required to provide the Veteran with a VA examination in conjunction with these claims. Based on the attempt to obtain SSA records and subsequent readjudication of the claims, the Board finds that there has been substantial compliance with its April 2013 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). In the instant case, there is no presumed service connection because skin cancer was not medically diagnosed within one year of discharge and, indeed, the evidence of record does not indicate that skin cancer has ever been diagnosed. Alternatively, 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, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f) (West 2002 & Supp. 2012); 38 C.F.R. § 3.307(a)(6)(iii) (2012). The Veteran's service records clearly demonstrate that he served in the Republic of Vietnam during the required period. Therefore, he is presumed to have been exposed to herbicides, including Agent Orange, in service. See id. If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2012). The regulations, however, do not provide presumptive service connection for psoriasis, COPD, or any other skin or respiratory disorder with which the Veteran has been diagnosed, based on exposure to Agent Orange. 38 C.F.R. § 3.307, 3.309. The VA Secretary has determined that 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. 341-346 (1994); see also Notice, 61 Fed. Reg. 57586-57589 (1996). The Secretary 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 skin cancer or actinic keratosis. See Notice, 68 Fed. Reg. 27,630- 41 (May 20, 2003). This determination was made by the Secretary in conjunction with research and studies performed by the National Academy of Science (NAS). Conversely, the Secretary determined, based on sound medical and scientific evidence, that a positive association (i.e., where the credible evidence for the association was equal to or outweighed the credible evidence against the association) existed between exposure to an herbicide agent and the disorders listed in the statute. See 64 Fed. Reg. 59232, 592233 (Nov. 2, 1999). However, skin cancer was specifically noted as a disease which does not qualify for an Agent Orange presumption. See Update 1996. The Board notes, notwithstanding the foregoing presumptive provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). See also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 2000). In the absence of a presumptive basis to grant a claim, to establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Given the Veteran's service in the Republic of Vietnam, the Board has considered the potential application of 38 U.S.C.A. § 1154(b) (West 2002). However, the evidence of record, including the Veteran's own statements, confirms that he did not participate in combat operations during his military service. As such, the Board concludes that application of 38 U.S.C.A. §1154(b) is not warranted. As noted, the Veteran contends that he has skin and respiratory disabilities as a result of his military service, to include as a result of exposure to herbicides during his service in Vietnam. The Veteran's service treatment records indicate that he did not seek treatment for skin problems during service. The Veteran now claims that he did not seek treatment for his skin during service because other health problems were of greater priority. With respect to respiratory problems, in September 1962 he was treated for tonsillitis. The Veteran sought treatment in August 1963 for a sore throat, cough, fever, and chills. In November 1963, the Veteran was seen for a sore throat and a chest cold. In addition, he was treated for pharyngitis in December 1963, although at that time he did not report any associated respiratory problems. At the time of the Veteran's March 1965 separation examination, in a contemporaneous Report of Medical History he reported a history of chronic or frequent colds, but denied a history of asthma, shortness of breath, pain or pressure in the chest, chronic cough, boils, or any respiratory or skin problems. The separation examination itself included normal examinations of the skin, lungs, and chest. After service, in August 1975 and September 1975 the Veteran was seen for complaints of epigastric pain. At that time, the Veteran reported smoking about one pack of cigarettes per day. Following examination, his diagnoses included tinea cruris and tinea pedis. In approximately March 1976, the Veteran brought claims for entitlement to service connection for stomach ulcers and bursitis of the knees, as well as for nonservice-connected pension benefits. At this time, he did not report skin or respiratory problems. In December 1977, the Veteran was noted to have a skin scar. In another December 1977 record, examination of the Veteran's respiratory system was negative, although the Veteran reported that he had quit work two weeks previously due to weakness. In October 1980, the Veteran again was diagnosed with tinea cruris and tinea pedis. At that time, the Veteran stated that he had incurred multiple rashes in the groin and feet for the past 10 years. Following a motor vehicle accident, an undated medical record indicated that the Veteran had been coughing up "clots" of blood. The assessment was a minor lung contusion in a 20 plus per year smoker with a normal chest x-ray. In April 1990 the Veteran sought treatment for neck problems at which time he discussed treatment for an upper respiratory infection four months previously with symptoms that included a cough. In general, the infection, "ran [the] usual viral illness course." The only reported residual problem from the upper respiratory infection was ongoing neck pain. On examination, the chest was clear. During a June 2000 VA psychiatric examination, the Veteran discussed his current and past medical problems and described "some physical illnesses" that included gastrointestinal and orthopedic problems, which prevented his continued gainful employment. The reported physical problems, however, did not include skin or respiratory complaints. In March 2002, the Veteran sought treatment for a rash on his feet that was red, prickly, and itchy. The Veteran was afforded a chest x-ray in June 2003 and the resulting report noted evidence of COPD with questionable increased density seen in the left perihilar region overlying the left anterior fifth rib. Thereafter, the Veteran was given a chest CT in July 2003, at which time there was no evidence of abnormal lymphadenopathy, but there was an ill-defined density in the left upper lobe anteriorly that most likely represented an area of scar or atelectasis. A January 2004 CT scan continued to show evidence of pleural parenchymal scarring that was most likely postinflammatory in nature. An October 2007 treatment record noted a 40 year history of cigarette smoking. Treatment records during the appellate time period include diagnoses of COPD and treatment of scalp psoriasis with a special shampoo. Thus, during the appellate time period there is medical evidence documenting diagnoses of respiratory and skin disabilities. The crucial inquiry, therefore, is whether those disabilities are related to any incident of service, to include herbicide exposure. For the reasons and bases set forth below, the Board concludes they are not. The Board finds there is no credible and competent evidence of record demonstrating the onset of skin or respiratory problems in service or continuity of such symptomatology since service. Moreover, no medical professional has suggested that there is any link or relationship between current COPD, psoriasis, or other respiratory or skin disability and the Veteran's military service, to include as a result of exposure to herbicides. In that regard, the Board notes that the Veteran was not diagnosed with a chronic skin or respiratory disease as defined by VA regulations in service or within one year of service and, hence, any lay statements regarding a continuity of skin or respiratory symptoms are not sufficient to show a link between service and any current disability. Continuity of symptomatology affords a route to service connection only for specific chronic diseases. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). No listed condition is shown in service, and there is no clear diagnosis of one even now. The same applies to each claimed skin and respiratory condition. That said, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge, such as subjective complaints of skin rash and breathing problems, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Moreover, as noted above, in light of the physically observable nature of such disabilities as flat feet and skin lesions or rashes the Veteran, as a layperson, may be competent to diagnose a skin disability. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (citing Harvey v. Brown, 6 Vet. App. 390, 393 (1994) (flat feet)); McCartt v. West, 12 Vet. App. 164, 167-68 (1999) (Veteran alleged skin disorder of boils, blotches, rash, soreness, and itching since service; Court implied that this may be the type of condition lending itself to lay observation and satisfy the nexus requirement). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As to the Veteran's reported respiratory problems, however, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, linking COPD or any such respiratory disorder to in-service herbicide exposure or otherwise determining the etiology of the Veteran's current COPD that was first discussed multiple decades after separation from service falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). For these same reasons, the Board finds any attempts by the Veteran to link any current skin disorder to in-service herbicide exposure to be beyond his competence as a lay person. The Board finds any attempted link by the Veteran of his current skin and respiratory problems to his military service, including herbicide exposure, particularly problematic in light of the Veteran's explicit denial of lung problems (specifically asthma, shortness of breath, or chronic cough) at the time of his separation from service. While the Veteran was treated for a cough on multiple occasions during service, the medical records demonstrate that these symptoms were associated with acute medical problems that resolved. While the Veteran did not specifically deny skin problems on separation (other than boils), in October 1980 he reported a 10 year history of rash in the groin area and on both feet. This reported onset would have been multiple years after the Veteran's separation from service. Moreover, the Board finds it significant that while the Veteran filed for service connection for multiple disabilities and on multiple occasions, beginning about a decade after separation from service, he did not file his skin and respiratory disability claims until many years later. If the Veteran had been experiencing ongoing skin and respiratory problems from service, the Board finds it reasonable to conclude that he would have reported these problems during service, or at a minimum in March 1976 when he filed his initial claim for benefits, particularly because his claims included entitlement to nonservice-connected pension benefits that takes into account all of the Veteran's disabilities in determining entitlement. As such, the Board finds the Veteran's contemporaneous and near contemporaneous representations regarding skin and respiratory problems (or the lack thereof) of significantly greater probative value than his current statements made in pursuit of VA compensation benefits. Regardless of whether the Veteran is purposely mischaracterizing the events in service and thereafter or unintentionally doing so, the ultimate conclusion is that any statements regarding continuity of symptomatology are simply not credible evidence. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (finding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (noting that although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements); Caluza v. Brown, 7 Vet. App. 498 (1995) (holding that in weighing an applicant's credibility, the Board may consider any evidence of interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, and desire for monetary gain). In reaching that decision, the Board also has considered the case of Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), wherein the Court held that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. However, this is not a case in which the record is merely silent regarding whether he experienced skin and respiratory problems in service or continuing thereafter. Rather, this is a case in which the record includes explicit denials of skin and respiratory problems during and shortly after service and/or specific attributions of onset of such problems to some point in time after separation from service. In summary, no medical professional has attributed the Veteran's current COPD, psoriasis, or other skin or respiratory disability to his military service. The Board does not find the Veteran's contention that such skin and respiratory problems are related to service to be (competent, in the case of the respiratory claims or) credible evidence. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claims for service connection must be denied. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). TDIU The Veteran contends that his skin and respiratory disabilities (and potentially others) have rendered him unemployable and requests a TDIU. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2012). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2012). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background, including his employment and educational history. 38 C.F.R. §4.16(b). As discussed above, the Veteran does not have a single disability rated as 60 percent disabling, nor has a combined disability rating of 70 percent. In fact, the Veteran is not service-connected for any disabilities, including those he contends render him unable to work. Consequently, a TDIU rating is not warranted, and must be denied for lack of entitlement under the law. See Sabonis, 6 Vet. App. at 430. In reaching that conclusion, the Board has considered the arguments of the Veteran's representative that because the above-noted claims involving a psychiatric disorder or disorders were referred to the RO for development that the TDIU claim, if not granted, should be deferred until adjudication of the psychiatric disorder claims. However, the Board notes that the issue of entitlement to a TDIU is not "inextricably intertwined" with the aforementioned service connection issues. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding that issues are "inextricably intertwined" when a determination on one issue could have a significant impact on the outcome of another issue). To hold otherwise would mean that entitlement to a TDIU never could be adjudicated since the possibility always exists that another disability will become service-connected. As such, there is no need to defer adjudication of the Veteran's entitlement to a TDIU pending adjudication of the referred service connection issues. The Veteran is free to submit another claim of entitlement to a TDIU in the future, whether as a result of being granted service connection for one or more additional disabilities or otherwise. New findings will be made regarding whether service-connected disabilities alone render the Veteran unemployable/unable to secure and follow a substantially gainful occupation (whichever is applicable) when another claim is submitted. ORDER Entitlement to service connection for COPD is denied. Entitlement to service connection for a rash and skin lesions is denied. Entitlement to TDIU is denied. ____________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs