Citation Nr: 21074242 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-52 361 DATE: December 14, 2021 ORDER Service connection for a skin disability, to include as due to herbicide agent exposure, is denied. FINDING OF FACT A skin disability did not have its onset in service, and is not related to service, including the Veteran's presumed exposure to herbicide agents in the Republic of Vietnam. CONCLUSION OF LAW The criteria for service connection for a skin disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1969 to October 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). The claim was previously remanded by the Board in December 2018, August 2020, April 2021, and September 2021 for additional evidentiary development. Service Connection for a Skin Disability Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38. C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). 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). 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, unless there is affirmative evidence of non-exposure. 38 U.S.C. §§ 1116; 38 C.F.R. § 3.307. The law provides that, if a veteran was exposed to an herbicide agent during service, certain listed diseases shall be service-connected if the requirements of 38 U.S.C. § 1116; 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. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. The list of diseases afforded this presumption does not include the Veteran's diagnosed skin disabilities, seborrheic dermatitis and psoriasis. Consequently, the herbicide agents exposure presumptive provisions of 38 U.S.C. § 1116 do not apply in this claim. Notwithstanding the foregoing presumption provisions, the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Thus, presumption is not the sole method for showing causation. 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. § 5107(b); 38 C.F.R. § 3.102. When all 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 Veteran seeks service connection for a skin disability, which he maintains is due to his exposure to herbicide agents in service. See August 2014 VA Form 21-526EZ and September 2015 Notice of Disagreement. The Veteran's service treatment records are silent for any complaints, findings, treatment or diagnoses related to a skin disability. Following service, the Veteran submitted claims seeking service connection for various disabilities in October 2009, March 2012, and May 2013; he did not mention a skin disability in these claims. The current claim was received in August 2014. Records during the appeal period notes diagnoses of seborrheic dermatitis and psoriasis. A February 2014 VA treatment record notes the Veteran's symptoms of seborrheic dermatitis were controlled. In January 2019, the Veteran was afforded a VA skin diseases examination. Seborrheic dermatitis and psoriasis were shown on examination; date of onset was unknown. The Veteran was afforded another VA skin diseases examination in September 2020. After examining the Veteran and reviewing the claims file, the examiner documented a finding of psoriasis and concluded that it was less likely than not that the psoriasis was incurred in or caused by service, to include herbicide agents exposure therein. The examiner explained: Psoriasis is a common chronic inflammatory skin disease that may exhibit a variety of clinical manifestations. There are multiple proposed risk factors for psoriasis. Genetic predisposition is considered a key contributor, and environmental and behavioral factors may also play roles. In particular, elevated rates of smoking, obesity, and alcohol use are found among individuals with psoriasis. Medications and infections have also been identified as potential triggering or exacerbating factors for psoriasis. But exposure to herbicides is not listed as one of the proposed risk factors for psoriasis. In May 2021, a VA examiner reviewed the claims file and opined it was less likely than not that the Veteran's skin disabilities were incurred in or are otherwise related to his military service, noting that STRs and treatment records for many years after service were silent for any skin disability. An additional VA medical opinion was obtained in October 2021. After reviewing the claims file, the VA examiner opined that the Veteran's seborrheic dermatitis was less likely than not caused by or related to his active duty service, to include Agent Orange exposure therein. The examiner explained that this disability was a skin disability that presented in areas where there were a lot of oil producing sebaceous glands, and had no specific link to the Veteran's in-service herbicide agent exposure. Based on the foregoing, there is no evidence that a skin disability was manifested in service. As noted above, the Veteran's STRs, including an October 1971 separation examination report, are negative for any skin disabilities. In fact, no such complaints or findings were noted in service or for years thereafter. Finally, the May 2021 VA medical opinion is against direct service connection, as noted above, and there is no medical opinion (or other competent evidence) to the contrary. Regarding whether the Veteran's seborrheic dermatitis or psoriasis are related to herbicide agent exposure, his service personnel records show that he served in the Republic of Vietnam from December 1970 to October 1971. Therefore, it is presumed that the Veteran was exposed to herbicide agents in service. Seborrheic dermatitis and psoriasis, however, are not listed among the diseases enumerated under 38 C.F.R. § 3.309(e). Consequently, the herbicide presumptive provisions of 38 U.S.C. § 1116 do not apply as to those disabilities. A claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to Agent Orange may still establish service connection for such disability as due to Agent Orange exposure with proof of direct causation. The September 2020 and October 2021 VA medical opinions address this medical question. The VA examiners opined the Veteran's seborrheic dermatitis and psoriasis were less likely as not related to his herbicide agent exposure in service, as noted above. The Board finds these VA medical opinions to be probative as they are well-explained and supported by the record. Furthermore, there is no competent evidence to the contrary; thus, the opinions are persuasive. The Veteran's own contention relating his skin disabilities to herbicide agent exposure in service is not competent evidence, as he is a layperson, and lacks the training to opine regarding medical causation in this matter; whether a disease/condition is related to Agent Orange exposure is a complex medical question, and is not capable of resolution by lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court). (Continued on the next page) In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a skin disability, to include as secondary to herbicide agent exposure. Accordingly, it must be denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fletcher, Kathleen 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.