Citation Nr: 21021429 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-23 029A DATE: April 13, 2021 ORDER Entitlement to service connection for a skin condition is denied. FINDING OF FACT The Veteran’s current dermatitis and hypo-pigmentation of the skin is less likely than not related to active duty service, including as due to exposure to Agent Orange. CONCLUSION OF LAW The criteria for entitlement to service connection for a skin disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1967 to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In an October 2020 Board decision, the case was remanded back to the Agency of Original Jurisdiction (AOJ) for further development. That development having been completed to the extent possible, the matter is again before the Board for further appellate review. Stegall v. West, 11 Vet. App. 268, 271 (1998). Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra Service Connection Establishing service connection generally requires competent evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. 38 C.F.R. § 3.303; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year from separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. Id. Moreover, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a skin condition The Veteran contends he has a diagnosis of dermatitis and hypo-pigmentation of the skin that he attributes to Agent Orange exposure while serving in the Republic of Vietnam. Service connection established on a direct basis requires competent evidence of a current disability, a precipitating in-service event, and a nexus between such an event and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). There are also numerous ways to establish a presumptive service connection. For instance, “[i]n 1991, Congress passed the Agent Orange Act, codified at 38 U.S.C. § 1116, granting a presumption of service connection for certain diseases to veterans who served in... Vietnam” during the Vietnam era. Procopio v. Wilkie, 913 F.3d 1371, 1373 (Fed. Cir. 2019). In such cases, Veterans may obtain service connection for certain diseases when the evidence might otherwise not indicate that service connection is warranted. See 38 C.F.R. § 3.303(d). Specifically, 38 C.F.R. § 3.307 provides that a Veteran who served in Vietnam from January 9, 1962, to May 7, 1975, is presumed to have been exposed to a tactical herbicide agent, to include Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during his/her service. See 38 C.F.R. § 3.307(a)(6)(iii). However, here, service connection for the Veteran’s dermatitis or hypo-pigmentation of the skin cannot be awarded based on a theory of presumptive exposure to tactical herbicides because this particular disability is not one of the enumerated chronic diseases amenable to a presumptive service connection under 38 C.F.R. § 3.309(e). The Board will also consider whether service connection can be granted on a direct basis. The Veteran was afforded VA examinations in August 2019 and December 2020 to access the nature and etiology of his currently diagnosed skin condition. Each examiner provided a medical opinion as to whether the Veteran’s skin condition is at least as likely as not (50 percent or greater probability) incurred in or caused by active duty service, to include exposure to Agent Orange. The August 2019 examiner opined that the Veteran’s skin condition was less likely than not incurred in or caused by service. The rationale was that there is no evidence of a diagnosis or treatment for a skin disorder in service or shortly after separating from service. The examiner noted an acute ringworm condition that has resolved without ongoing complications. The December 2020 VA examiner opined that the Veteran’s skin disorder is less likely than not (less than 50 percent probability) incurred in or caused by active duty service, to include exposure to Agent Orange. The rationale was that the Veteran does not have a diagnosed skin condition that is linked to exposure to herbicides. The examiner stated that there is no evidence a qualifying skin condition having manifested within 1 year of last exposure to herbicide agents, and there is no chronicity or continuity of care associated with any skin conditions. The Board finds that the opinion of the August 2019 VA examiner is probative, although part of the opinion mentions an incorrect year (1976) when referencing ring worm when the service treatment records indicate ring worm occurred in 1967. Nonetheless, the December 2020 VA examiner’s opinion bolsters this previous opinion that it is less likely than not that the Veteran’s claimed condition was incurred in or caused by service. The December 2020 opinion contains significant probative value. The examiner’s analysis shows a careful review of the STRs, including those related to skin conditions, and the post-service records, including the complaints of skin lesions and diagnoses of dermatitis and hypo-pigmentation of the skin at the December 2020 VA examination. The Board finds the opinion of the VA examiner probative in that the examiner reviewed the pertinent medical records, conducted a personal examination of the Veteran, and provided a clear conclusion with a reasoned medical explanation. The Board notes that the Veteran is indeed competent to testify as to such observable symptomatology, such as noticing little white spots on his chest and neck when the weather became hot outside. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, lay assertions do not constitute a competent clinical diagnosis of an existing disability nor are they adequate to establish a positive nexus with military service. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). The issue is medically complex, as it requires specialized medical knowledge of the interpretation of signs and symptoms as well as diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran has not been shown to possess such specialized medical knowledge, nor has he claimed to possess such knowledge. As a result, these lay assertions cannot constitute competent medical evidence in support of the claim, and the Board most heavily weighs the VA examiners’ opinions that there is no causal relationship between the Veteran’s current skin condition and active duty service, including herbicide agents. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of service connection for dermatitis or hypo-pigmentation of the skin. In reaching this conclusion, 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. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, 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.