Citation Nr: 21024274 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 12-14 480A DATE: April 22, 2021 ORDER Service connection for a skin disorder, to include as due to exposure to herbicide agents is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s skin disability began during active service. CONCLUSION OF LAW The criteria for service connection for skin disability are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Army from November 1968 to August 1970 including service in the Republic of Vietnam. He was awarded the Army Commendation Medal with “V” and the Air Medal. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These issues were previously before the Board in March 2015 and June 2018 and on appeal to the U.S. Court of Appeals for Veterans Claims (Court) that vacated the June 2018 decision and ordered compliance with an October 2019 Joint Motion for Partial Remand. In February and again in November 2020, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to 1) obtain medical records pertinent to his claimed skin condition and hypertension, 2) ask the Veteran to identify all private providers from which he received evaluations or treatment for skin condition and hypertension, 3) obtain an addendum opinion regarding the likely etiology of his skin disorder, and 4) adjudicate the claim for TDIU. The AOJ has since notified the Veteran and obtained relevant private medical records from providers identified by the Veteran. The AOJ has also added up to date VA Medical Center treatment records. Then, in January 2021, an addendum opinion regarding the etiology of the claimed skin condition was obtained. Thus, the Board finds that the AOJ substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. Id.; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran.” Gilbert, 1 Vet. App. at 54. Service connection for a skin disorder, to include as due to exposure to herbicide agents The Veteran contends that he has had a skin disorder intermittently since service and claims that it was caused by his exposure to herbicide agents during service. In December 2014, the Veteran testified that skin problems started while deployed in the Republic of Vietnam and that the outbreaks would disappear and appear since that time. The evidence is in equipoise as to whether the current disability onset during active duty or was caused by some aspect of active duty including exposure to herbicide in Vietnam. In January 2021, the AOJ obtained an addendum opinion for the Veteran’s claimed skin disorder. The VA examiner identified three skin disorders from the Veteran’s medical record, specifically actinic and seborrheic keratosis, resolved basal cell carcinoma, and rosacea. After observing that the diagnoses were made “30 plus years after service,” the examiner opined that each are directly related to sun exposure and progression of the Veteran’s age, and that it was less likely than not that they are directly related to or manifested during active service. The examiner also added that there is no medical literature showing a correlation between exposure to herbicide agents and formation of the diagnosed skin disorders. The amount of time passed between the Veteran’s discharge and the diagnosis was also noted by the examiner. Further, the examiner stated that the skin disorders can resolve on their own, but could recur after further sun exposure, scratching, or being picked off, with chronic exposure to the sun being the leading cause. Contrary to the January 2021 VA examiner’s review of the record, however, the Veteran’s service treatment records do show that the Veteran was diagnosed as having “[possible] seborrheic dermatitis” during active service, in May 1969. The Veteran was prescribed topical medication. Although his discharge examination did not note any skin abnormalities, the Board finds that the lack of documentation at the time of discharge is explained by the January 2021 VA examiner’s statements of the skin disorders resolving then recurring after further sun exposure, scratching, or being picked off. The Veteran also testified to the same effect during the December 2014 hearing. Moreover, the Veteran likely experienced substantial sun exposure in the jungle environment of Vietnam. Thus, the evidence is at least in equipoise as to whether the Veteran’s skin disorder was onset or was caused by service. As there is credible evidence of the onset of some form of seborrheic dermatitis in service and credible evidence of subsequent waxing and waning or recurrent episodes, the benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board makes no finding of causation by exposure to herbicide. Reasonable doubt will be resolved in the Veteran’s favor and thus service connection for skin disorder is granted. See 38 U.S.C. § 5107. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) As indicated above, service connection for skin disability has been granted herein; thus, the awards have not yet been implemented. Since the issuance of the January 2021 SSOC denying TDIU, the AOJ subsequently issued a rating decision in March 2021 granting service connection for chronic obstructive pulmonary disease (COPD) with an evaluation of 60 percent effective November 17, 2020. The grant increased the Veteran’s combined disability rating from 80 percent to 90 percent effective November 17, 2020. Therefore, a decision as to the issue of a TDIU is potentially premature, until the Agency of Original Jurisdiction implements the grants of service connection for depression. Therefore, the issue of a TDIU is remanded as it is inextricably intertwined with the other issue. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matter is REMANDED for the following action: Readjudicate the Veteran’s TDIU claim. If the claim is not granted in full, issue a supplemental statement of the case and allow appropriate time for response. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun, 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.