Citation Nr: 20056744 Decision Date: 08/27/20 Archive Date: 08/27/20 DOCKET NO. 11-28 928 DATE: August 27, 2020 ORDER Entitlement to service connection for a skin disability, due to Agent Orange exposure in South Korea, is denied. FINDING OF FACT The Veteran does not have a skin disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a skin disability have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1971 to March 1974. He served in South Korea from December 1971 to August 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a July 2019 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. This matter was previously before the Board in September 2016. The claim was remanded for the RO to schedule the Veteran for a Board hearing. The Veteran attended a Board videoconference hearing in July 2019. Thus, the Board finds that the RO substantially complied with the September 2016 Board remand directive and that the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran claims his skin condition is related to an in-service injury. Specifically, he alleges as a result of an Article 15 violation, he was required to spray agent orange herbicide on the ground at the motor pool. Afterwards, while in the sun, he developed blisters on his arms, legs, and neck. For the reasons discussed below, the Board finds the evidence weighs against a finding that the Veteran has a current disability. Therefore, service connection is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for certain chronic diseases a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. §§ 3.303(b), 3.309(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii). Additionally, a presumption of service connection arises when certain diseases with a relationship to herbicide exposure, manifests to a degree of 10 percent or more following service in areas with known exposure, including in or near the Korean Demilitarized Zone (DMZ) at any time during the period from April 1, 1968 to August 31, 1971. 38 U.S.C. §§ 1116; 38 C.F.R. §§ 3.307(a)(6)(iv), 3.309(e). There are specific units determined by VA or the Department of Defense (DOD), listed in VA Adjudication Procedure Manual, M21-1 (M21- 1), as being at or near the Korean DMZ during that time period. 38 C.F.R. §§ 3.307; M21-1, Part IV, Subpart ii, 1.H.4.a. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. §§ 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of §3.307(d) are also satisfied. AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. §§ 3.309(e). 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Turning to the evidence, service treatment records (STRs) do not reflect any symptoms, diagnosis, or treatment for a skin disability. A September 1972 letter regarding certificate for unsuitability, indicated the Veteran had one Article 15 violation. The recommendation was to bar reenlistment due to the Veteran’s failure to report to his assigned place of duty, failure to respond to attempts to counsel him, substandard appearance, disinterest in work, and marginal work. A January 1974 separation examination revealed normal clinical findings for the skin. In the concurrent report of medical history, the Veteran denied skin disease. In a March 1974 statement of medical condition, the Veteran acknowledged he underwent a separation examination more than 3 days prior to separation, however, there is no change in his medical history. Post service, in an August 2011 statement, the Veteran alleged as a result of an Article 15 violation, he was given extra duty. The duty consisted of spraying agent orange herbicide on the ground at the motor pool. Afterwards, while in the sun, he developed blisters on his arms, legs, and neck. During the July 2019 Board hearing the Veteran testified to using over-the-counter cream regularly for bumps he has developed on his nose and feet. There are no private or VA treatment records for blisters or any skin related disability. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the Veteran does not have a current disability. First addressing the current disability requirement, the Board notes that, under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Allen v. Brown, 7 Vet. App. 439 (1995): Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). The requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) the Federal Circuit held that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The Federal Circuit did emphasize that they were not holding a veteran could demonstrate service connection “simply by asserting subjective pain. To establish the presence of a disability, the veteran will need to show that his pain reaches the level of functional impairment of earning capacity.” In other words, subjective pain in and of itself will not establish a current disability. In this case, the medical record contains no complaints of, treatment for, or diagnosis of a skin condition. While the Veteran reports blisters on his arms, legs, and neck, as well as bumps on his nose and feet, there is no medical record of a current diagnosis or chronic disability. Moreover, there is no indication that the Veteran’s claimed symptoms reached the level of a functional impairment of earning capacity necessary to establish the presence of a disability. Saunders, Supra. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, 3 Vet. App. at 225. As such, the Board finds that the evidence weighs against a finding of a current disability for a skin condition. The Board does not need to address an in-service incurrence or a causal relationship as required for service connection because the Veteran has not demonstrated he suffers from a present disability. See Shedden, 381 F.3d at 1167. The Board acknowledges that the Veteran has not been afforded a VA medical examination. The VA Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be “medically competent” evidence of a current disability, “medically competent” evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being “routinely and virtually automatically” provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, the Veteran has asserted he suffers from a skin disability. It is acknowledged that the Veteran is competent to relate the identification of a disease with unique and readily identifiable features that are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). To the extent the Veteran is competent to relate he experiences intermittent skin eruptions or blisters, these assertions are vague as to their actual extent, nature, and frequency; nor are the assertions supported by credible evidence of a current disability or persistent or recurrent symptoms of a disability. During the July 2019 Board hearing the Veteran testified to refusing VA care due to an unrelated incident. The record remained open an additional 90 days from the hearing to give the Veteran time to establish VA care. As the Veteran has not taken sufficient action to substantiate the vague description of the alleged skin ailment, the Board does not find his assertions “medically competent” to relate the existence of chronic symptoms of a skin disability; or that such symptoms may be related to service. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the duty to assist is not a one-way street). To date, no competent or credible lay or medical evidence of a current disability indicating a relation to service has been submitted. Therefore, the threshold element of McLendon is not met. Accordingly, service connection for a skin disability is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.§5107(b); 38 C.F.R.§ 3.102; see also Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.