Citation Nr: 21013726 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 06-14 115 DATE: March 10, 2021 REMANDED Entitlement to service connection for skin disabilities, to include as secondary to service-connected disability or due to herbicide agent exposure is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from April 1965 to March 1969. He died in February 2010. The appellant is his surviving spouse who has been substituted as the appellant in this appeal. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2003, which denied service connection for skin disabilities. After a lengthy procedural history, a Supplemental Statement of the Case (SSOC) was issued by the Department of Veteran Affairs (VA) Regional Office (RO) in October 2020, denying the Veteran’s claim for service connection for skin disabilities, to include secondary to his service-connected diabetes. When this case was last before the Board in February 2019 and October 2020, it was remanded for additional development. The case has now been returned to the Board for further appellate consideration. The Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ) of the Board in June 2009. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. However, the VLJ who conducted the June 2009 Board hearing is no longer employed by the Board. In January 2021, the appellant and her representative were sent a letter notifying them that the VLJ who presided over the June 2009 hearing is no longer employed by the Board, and offering another hearing before a different VLJ. The letter notified the appellant that she had 30 days from the date of letter to respond and that if no response was received the Board will assume the appellant does not want another hearing and the Board will proceed accordingly. The appellant did not respond to the letter. As such, the Board will consider the case on the evidence of record. Although further delay is regrettable, the Board finds that a remand for additional development is required before the appellant’s claim can be adjudicated. Prior to his death, the Veteran contended that his skin disabilities were related to exposure to herbicide agents during his service in Vietnam, or secondary to his service-connected diabetes. Service in Vietnam is confirmed by the military personnel records. As such, exposure to herbicide agents is conceded. Although VA has established a presumption of service connection due to herbicide agent exposure for some disorders, none of the Veteran’s claimed diagnosed skin disabilities are on the list. 38 C.F.R. § 3.309 (e). Nevertheless, a Veteran is not precluded from establishing service connection on a direct incurrent basis if the most probative evidence supports an etiological nexus between their current disability and herbicide agents. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran was afforded VA examinations in August 2018 and January 2020. Unfortunately, neither examination contained a medical opinion discussing the possibility of a nexus between the Veteran’s skin disabilities and military service, to include exposure to herbicide agents. This matter is REMANDED for the following action: 1. Forward the Veteran’s claims file to a VA examiner to determine the nature and etiology of his skin disabilities. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran’s service treatment records, post-service medical records, hearing testimony and other statements. After considering the Veteran’s pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: Whether it is at least as likely as not (50 percent probability or more) that any skin disability is related to active service, to include, but not limited to exposure to herbicides? The examiner must note that applicable VA law establishes that the legal provision for presumptive service connection does not otherwise preclude an appellant from establishing service connection with proof of actual direct causation on a nonpresumptive direct incurrence basis. A complete rationale should be provided for the opinion. The clinician is encouraged to cite to medical/scientific information to support the opinion as appropriate. The clinician is advised that a rationale that service connection for the Veteran’s skin disabilities is not appropriate because VA has not established a presumption for the disorder is insufficient and may require further development. B. G. LeMoine Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Townsend, 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.