Citation Nr: 21065311 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-51 349 DATE: October 25, 2021 ORDER Entitlement to service connection for skin lesions (skin disability) due to herbicide exposure is denied. REMANDED Entitlement to service connection for hypertension due to herbicide exposure is remanded. FINDING OF FACT The probative medical evidence of record does not reflect that the Veteran has ever been treated for or diagnosed to have any skin disability. CONCLUSION OF LAW A skin disability was not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1958 to July 1979. The Veteran has verified service in the Republic of Vietnam from August 1967 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In his September 2016 VA Form 9 (Substantive Appeal), the Veteran had elected to have a hearing before a member of the Board. On September 2021, the Veteran's attorney contacted the RO to relay that the Veteran would be unwilling and unable to attend a Board hearing and to proceed with adjudication accordingly. As such, the Board is satisfied that the Veteran has knowingly and with the advice of counsel chosen to withdraw his hearing request. Accordingly, adjudication shall proceed without a hearing in this matter. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be warranted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, the evidence 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. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such service as shown by the service record, the official history of each organization in which the Veteran served, his or her treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154 (a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107 (a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he currently suffers from a skin disability, manifested by lesions and scars on the lower extremities. In this regard, the Veteran has attributed the condition to his service in the Republic of Vietnam and exposure to agent orange. A review of the Veteran's service treatment records is negative for any showing of complaints, treatment, or diagnoses of any skin disabilities. A review of the Veteran's post-service outpatient treatment records does not reveal any complaints, treatment or diagnoses of any skin disabilities. In fact, any such references to skin in the Veteran's treatment records have been to indicate that there are and have been no complaints. The threshold requirement for the granting of service connection is evidence of a current disability. In the absence of evidence of a current disability, in this matter a diagnosis of a skin disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement in a claim of service connection of current disability "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." See McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, the totality of the competent evidence does not reflect that the Veteran has or has had a diagnosis of a skin disability during the relevant period on appeal. Rather, the Veteran has shown normal skin findings in treatment records throughout the appeal period. Last, the Board notes that the Veteran is competent to relate the presence of skin lesions. However, the Board considers medical records to be more probative as to whether any lesions are actually present since their purpose is to document the presence of ailments. Here, the records do not show the presence of any skin disability. Therefore, the preponderance of evidence is against the Veteran's claim. The most probative evidence of record reflects that the Veteran lacks a diagnosis of a disability manifested by a skin disorder during the appeal period. Absent the required diagnosis of the claimed disability at any time during the appeal period, there is no current disability to attribute to the Veteran's military service. Brammer, 3 Vet. App. at 223. For the reasons provided above, the preponderance of evidence is against the Veteran's claim. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulation. Gilbert, 1 Vet. App. at 49 ; 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran claims that he is entitled to service connection for hypertension due to herbicide exposure. In this regard, it is noted that the Veteran does have confirmed service in the Republic of Vietnam during the requisite presumptive period as indicated in the introduction above. Therefore, exposure to herbicides is conceded. Additionally, it is noted that the Veteran has been shown as diagnosed with hypertension since May 2008 at the earliest. Therefore, a current disability is established. At the outset, the Board notes that hypertension is not currently one of the disabilities contemplated by the rating schedule for presumptive consideration of herbicide exposure. See 38 C.F.R. §§ 3.307 and 3.309. However, the inquiry does not end there. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran who does not meet the requirements of 38 C.F.R. § 3.309 is not precluded from establishing service connection by way of proof of actual direct causation. Combee v. Brown, 34 F.2d 1039, 1041-42 (Fed. Cir. 1994). Here, the Veteran has a current disability and in-service herbicide exposure. A medical opinion regarding whether any relationship exists between the two would be useful. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Associate any pertinent treatment records related to the Veteran's hypertension, which are not already of record, with the claims file. 2. Provide the Veteran's claims file to an appropriate clinician to determine the nature and etiology of any hypertension disability. After reviewing the file, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that this Veteran's hypertension disability was caused by or related to active duty service, including his conceded exposure to herbicide agents. If it is necessary to examine the veteran to obtain the requested opinion, that should be arranged. The rationale for any opinions must be provided. (Continued on the next page) 3. Thereafter, readjudicate the appeal. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.