Citation Nr: 1619991 Decision Date: 05/17/16 Archive Date: 05/27/16 DOCKET NO. 09-45 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a skin disorder, to include as due to herbicide exposure. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1968, to include service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. It was before the Board in July 2013, when it was decided in part and remanded in part. FINDINGS OF FACT 1. The Veteran's skin disorder was not manifested in service and is not shown to be related to his service. 2. The Veteran is not service connected for any disability; therefore, it is premature to consider TDIU. CONCLUSIONS OF LAW 1. Service connection for a skin disorder is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015). 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.655, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The notice requirements have been met with regard to the Veteran's claimed skin disorder. An October 2008 letter notified the Veteran of the information needed to substantiate and complete his claim of service connection, to include notice of the information that he was responsible for providing and of the evidence that VA would attempt to obtain. He was also provided notice as to how VA assigns disability ratings and effective dates. As the RO issued this notification letter prior to the adjudication of this issue, the notice was timely. Regarding the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records, to include Social Security Administration (SSA) records, have been secured. The Veteran has not identified any additional records that could be used to support his claim for service connection for a skin disorder. The Veteran was provided a VA examination in September 2013. The Board finds the opinion provides adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. The Board finds that the examination substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). No additional pertinent evidence has been identified by the Veteran as relevant to the issue adjudicated herein. The Board is satisfied that evidentiary development is complete; VA's duties to notify and assist are met. The Veteran is not prejudiced by the process in this matter. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Legal Criteria, Factual Background, and Analysis for Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Disabilities diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Veterans who, during active 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 to an herbicide agent, to include Agent Orange, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. With regard to disabilities a veteran attributes to exposure to Agent Orange, the law provides that service connection may be presumed for certain diseases enumerated by statute and regulations that become manifest within a particular period, if any such period is prescribed. The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claim. The Veteran asserts he is entitled to service connection for a skin disorder related to Agent Orange exposure in Vietnam. The Veteran's STRs do not reflect complaints of a skin disorder. His June 1968 Report of Medical Examination at separation did not indicate any skin problems, and he denied any skin complaints or boils on his June 1968 Report of Medical History. Post-service medical records show January 2000 and February 2000 complaints of subcutaneous lesions on the left forearm, abdomen, back, and tip of the nose. His records also include a diagnosis of dermatitis. It is not in dispute that the Veteran served in Vietnam, and is entitled to a presumption that he was exposed to herbicides therein. The regulations, however, do not provide presumptive service connection for subcutaneous lesions or dermatitis. 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 59 Fed. Reg. 341 -346 (1994); see also 61 Fed. Reg. 57586 -57589 (1996). Accordingly, presumptive service connection for the Veteran's variously diagnosed skin disorder based on exposure to Agent Orange is not warranted. Notwithstanding, the Board will still consider whether the Veteran is entitled to service connection for his skin disorder on a direct basis. The Veteran was afforded a VA examination in September 2013. The examiner noted the Veteran had diagnoses of dermal inclusion cysts on the back and abdomen, solar dermatitis on the arms, and recurrent derma abscesses. The Veteran reported he had skin boils during service and was exposed to Agent Orange. He said the skin boils had not recurred recently but that he had been seeing doctors for years for skin problems. The examiner opined that the claimed disorder was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, even, or illness. The examiner noted that the current examination and a review of the medical records did not show a skin disorder presumptively related to Agent Orange exposure, to include chloracne. The examiner also noted that there was no evidence of a skin disorder during service and the Veteran denied a history of boils on his June 1868 separation examination. The Board finds that the evidence of record does not support a finding of service connection for a skin disorder. The Board finds the VA examiner's opinion to be the most probative evidence of record regarding the relationship between the Veteran's current skin disorder and his military service. The examiner expressed familiarity with the record and provided a clear explanation of rationale. He outlined the Veteran's medical history and he found it less likely than not that the Veteran's skin disorder was related to his service. The opinion is fully articulated with clear conclusions based on an accurate factual foundation and supported by sound reasoning. The Board finds no reason to question the provider's expertise or the rationale given. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for a skin disorder, based on both direct and presumptive theories of service connection. Accordingly, the benefit-of-the-doubt standard of proof does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b). TDIU Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran currently has no service-connected disabilities; therefore, he does not meet the criteria for TDIU. As the law is dispositive, the claim must be denied for lack of legal merit. See 38 C.F.R. § 4.16(a); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to service connection for a skin disorder is denied. Entitlement to TDIU is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs