Citation Nr: 21020892 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 20-05 967 DATE: April 8, 2021 ORDER Entitlement to service connection for a skin disability, to include hypomelanosis, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s a skin disability, to include hypomelanosis, is etiologically related to a chemical spill in active service. CONCLUSION OF LAW The criteria to establish service connection for a skin disability, to include hypomelanosis, have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1954 to October 1954 and May 1969 to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran service connection for a skin disability. Additionally, a September 2018 rating decision is before the Board, which denied entitlement to a TDIU rating. In July 2020, the Board remanded the Veteran’s claims to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. Specifically, the Board instructed the AOJ to make attempts to acquire relevant social security administration (SSA) records, verify an alleged herbicide exposure, and to afford the Veteran a VA examination. The claims are back before the Board for further appellate proceedings. SSA records were found unavailable as they were destroyed. See August 2020 SSA-L1103. The Veteran was informed of their unavailability and provided an opportunity to supplement the record with the same. Attempts were made as requested to verify the Veteran’s herbicide exposure in August and October 2020. Finally, the Veteran was afforded a VA examination in January 2021. Thus, the Board finds there has been substantial compliance with its remand directives, and the claims are ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the July 2020 remand sought development to verify the Veteran’s alleged herbicide exposure. Relevantly, the Veteran alleged that a chemical, colloquially known as “leaf killer,” spilled and caused his skin disability when unloading an aircraft. See September 2017 Veteran’s correspondence. The Board remanded the claim for development in consideration of 38 C.F.R. §§ 3.307, 3.309. August and October 2020 correspondence show that there was no tactical herbicide at the alleged military base. Regardless, as the Board finds that service connection is warranted, further development is unnecessary at this time. A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran has a skin disability described as itching, burning, and tingling. See December 2019 private medical records. He has been diagnosed with hypomelanosis. See January 2021 VA examination report. Thus, the first Shedden element is met and not in dispute. The Veteran contends that his skin disability was caused by a chemical spill from a 55-gallon drum. See September 2017 Veteran’s correspondence. The Board notes that the Veteran has service in the Army Reserve following his active service. In the Army Reserve, the Veteran qualified for and worked as a chemical operations specialist. See military personnel record. Such qualification likely makes him uniquely informed as to chemical burns and their effects. Thus, the Board finds the Veteran probative as to the occurrence of the chemical spill and his symptoms thereafter. Therefore, the second Shedden element is met. The Veteran’s private physician, Dr. M.S., opined that the Veteran’s skin disability was as likely as not caused by the chemical spill in service. See December 2019 private medical records. Dr. M.S. is a medical professional who reviewed the Veteran’s medical history, lay statements, and the claims file in developing his opinion. The Board finds his opinion probative. Thus, the third Shedden element is met. Accordingly, the Board finds that the Veteran’s skin disability, to include hypomelanosis, is etiologically related to service. Therefore, the criteria for service connection for the Veteran’s skin disability, to include hypomelanosis, have been met. See 38 C.F.R. §§ 3.102, 3.159, 3.303; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). REASONS FOR REMAND The Veteran contends his service-connected lumbar spine disability prevents him from working. See June 2018 VA Form 21-8940. TDIU may be assigned, where the schedular rating is less than total, when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system; multiple injuries incurred in action; or multiple disabilities incurred as a prisoner of war. Id. The Veteran does not meet the threshold requirement for a TDIU rating. The Veteran currently has a combined rating of 60 percent with one disability, as defined in § 4.16(a), ratable at 50 percent combined with a bilateral factor of 3.6 percent. However, the Board notes that the Veteran may meet the threshold requirements after the AOJ assigns a rating for his skin disability. Thus, the TDIU issue on appeal is inextricably intertwined with the grant of service connection and the assignment of an initial rating for his skin disability. See Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, the TDIU issue must be deferred pending the AOJ’s assignment of an initial rating for the skin disability. The matter is REMANDED for the following action: 1. Implement the grant of service connection for the skin disability. 2. Then readjudicate the claim for TDIU. If any benefit sought is not granted, the Veteran and his representative should be furnished an SSOC and given the requisite opportunity to respond before the case is returned to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.