Citation Nr: 21064291 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-10 767 DATE: October 19, 2021 ORDER Entitlement to service connection for tinea versicolor of the back (claimed as skin condition) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's tinea versicolor was incurred in, or is otherwise related to, his honorable period of active duty service. CONCLUSION OF LAW The criteria for service connection for tinea versicolor of the back (claimed as skin condition) have not been met. 38 U.S.C. §§ 1101, 1112-13, 1131, 1137; 38 C.F.R. §§ 3.12, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable, active duty service from October 14, 1970 to October 19, 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a VA RO in September 2013. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a March 2021 Board hearing. A copy of the hearing transcript has been reviewed and associated with the claims file. This matter was previously before the Board in July 2021, at which time it was remanded for a VA examination. In correspondence received in September 2021, the Veteran alleged clear and unmistakable error (CUE) in the Board's July 2021 decision. Effective March 24, 2015, VA no longer recognizes informal claims. See 79 Fed. Reg. 57, 660 (Sept. 25, 2014). In their place, VA recognizes an "intent to file a claim," which may be submitted electronically, on a prescribed intent-to file-a-claim form, or through an oral communication to certain VA employees that is later recorded in writing. 38 C.F.R. §§ 3.155(b)(1)(i)-(iii). If VA receives a complete application form as defined in 38 C.F.R. § 3.160(a) within one year of receipt of an intent to file, VA will consider the complete claim filed as of the date the intent to file was received. 38 C.F.R. § 3.155(b). Thus, if the Veteran seeks to claim CUE in a prior decision, such must be done on a prescribed application form. Moreover, the CUE claim would not apply to the issue presently before the Board, as no final decision was rendered on it in the July 2021 Board decision. Entitlement to service connection for tinea versicolor of the back (claimed as skin condition) Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) 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). VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). A Veteran 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 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 C.F.R. § 3.307(a). 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. The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. Further, in certain circumstances, veterans who served in vessels in the inland waterways of Vietnam were exposed to herbicides. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Generally, a veteran is entitled to receive VA disability benefits only for claims that are based on periods of active duty service that were terminated under conditions other than dishonorable. 38 C.F.R. § 3.12(a). In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). Lay evidence can be competent and sufficient to establish a diagnosis of a condition where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran has claimed entitlement to service connection for a skin disability, to include as caused by exposure to herbicide agents. During an August 2021 VA medical examination, he was diagnosed with tinea versicolor of the back. Thus, a current disability has been established by the record. Thus, the remaining question before the Board is whether his disability is related to an in-service injury, illness, or event. See Shedden, 381 F.3d at 1167. At the outset, the Board notes that the Veteran had additional active duty service from October 20, 1970 to May 1973, including service in Vietnam, and was issued a discharge under conditions other than honorable for this period of service. in a VA administrative decision issued in April 1974, it was determined that the Veteran's May 1973 discharge was under dishonorable conditions. Accordingly, the character of his discharge is a bar to all VA benefits for his service period from October 20, 1970 to May 1973. 38 C.F.R. § 3.12(a). However, he is still eligible for VA benefits for claims related to his period of honorable service. During his March 2021 hearing, the Veteran testified that he experiences a seasonal rash during the summer. He indicated that he was unsure of when it first began but testified that he remembers experiencing the rash in service and believes it may have begun during his basic training. The Veteran's September 1970 entrance examination report does not note any skin abnormalities. Because he immediately reenlisted on October 20, 1970, there is no separation examination for the period of service from October 15 to 19, 1970 to show whether or not he had a skin problem during his period of honorable, active duty service. However, the Veteran reported having hives or a skin rash on a November 1972 health questionnaire and endorsed a history of a rash on his hands in January 1973. The Veteran's VA treatment records show that he was assessed with seborrheic keratosis of the suprapubic area and left cheek in October 2012. A January 2015 VA treatment note indicates that he complained of itching, dry skin, lesions, and discoloration. The Veteran underwent a VA examination in August 2021, wherein the examiner diagnosed tinea versicolor on the back. The examiner stated that she could not confirm a diagnosis of seborrheic keratosis of the left cheek or verruciform keratosis of the suprapubic area because the examination revealed no evidence of those diagnoses and the Veteran did not report keratosis of the left cheek or suprapubic area. She also stated that the Veteran reported occasional dry and flaky skin on his hands and feet, but the examiner could not render a diagnosis because there were no visible lesions upon examination and no treatment records showing a diagnosis or treatment for a hand and foot skin condition. The examiner opined that the Veteran's tinea versicolor is less likely than not related to his period of honorable, active duty service. In support of her opinion, she stated that although the Veteran reported experiencing a rash during service, there is no evidence of a diagnosis of, or treatment for, a back rash during his period of honorable service or for years following his discharge. The Board finds that the preponderance of the evidence is against finding that the Veteran's tinea versicolor is related to his honorable period of active duty service. In this regard, there is insufficient medical evidence showing that his current tinea versicolor began during service or is related to any incident, injury, or illness occurring during his honorable service period from October 15 to 19, 1970. See 38 C.F.R. § 3.303. The Veteran has asserted that his skin disability may be caused by exposure to herbicide agents. However, the Board finds that the evidence weighs against finding that the Veteran was exposed to herbicide agents during his period of honorable active duty service. Although the Veteran is presumed to have been exposed to herbicide agents during his service in Vietnam, his Vietnam service occurred during a period of service that was terminated by a dishonorable discharge. Because a dishonorable discharge presents a bar to all VA benefits related to the period of dishonorable service, service connection cannot be granted based on presumed exposure to herbicide agents. See 38 C.F.R. § 3.12(a). Further, the Veteran's Form DD 214 for the period from October 15 to 19, 1970 indicates that he was stationed at Fort Jackson, South Carolina, and he has not claimed exposure to herbicide agents during this period. Therefore, the preponderance of the evidence weighs against finding that he was exposed to herbicide agents during his honorable period of active duty service. In reaching this conclusion, the Board has considered the Veteran's testimony that his skin rash may have begun during basic training. However, his service treatment records do not show any complaints of, treatment for, or diagnosis of, any skin problems during his period of honorable active duty service. The absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, here, the evidence is insufficient to conclude that the Veteran's tinea versicolor began during service based on his subjective statements about a rash. While the Veteran is competent to report his symptomatology, he has not been shown to have the medical knowledge necessary to render an in-service diagnosis of tinea versicolor or give an opinion as to the etiology of his current tinea versicolor. See Jandreau, 492 F.3d at 1376-77; see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). In denying the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the Board finds that service connection for tinea versicolor of the back is not warranted. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.