Citation Nr: 21027113 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 13-31 042A DATE: May 4, 2021 ORDER Entitlement to a skin disability is granted. Entitlement to total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The evidence of record supports finding that the Veteran's skin disability occurred in his period of active duty service. 2. The Veteran has not participated in the development of his claim for TDIU, and the Board otherwise is unable to determine if his service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a skin disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1992 to February 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. These claims most recently were the subject of a December 2019 Board decision. The Board remanded these claims so that VA could make attempts to obtain private treatment records for the Veteran's skin condition and so that an updated medical opinion could be obtained, as the Veteran submitted a letter from his private dermatologist, who stated that the Veteran's skin condition could be related to chemical exposure during service. While the issue of TDIU never was claimed by the Veteran, the Board took jurisdiction of it in conjunction with other increased rating claims decided in its decision. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Remand was required, however, so that the Veteran could complete a VA Form 21-8940 to determine his work history, education, and training. Thus, it is against this backdrop that the Board now readdresses these claims. Service Connection For his skin condition, the Veteran contends that he experienced blisters on his hands and feet during service as a result of handling chemicals as an airplane mechanic. February 13, 2020, Compensation and Pension Examination, Section IIMedical History. For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1110. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. The Veteran's DD-214 shows that he served for more than eighteen years as a tactical aircraft mechanic. Thus, the Board finds credible the Veteran's assertions that he frequently would have come into contact with various chemicals, as indicated by his private dermatologist's letter. ("He worked in aviation and was chronically exposed to multiple caustic chemicals such as jet fuel, hydraulic acid, LCS fluid, and jet oils."). What seems to be missing from previous Board decisions that addressed this claim is a thorough review of the service treatment records (STRs). Through much of 2006, and even in 2010, under the Veteran's list of medical problems is a documented "rash." The notation, however, does not indicated where the rash is located, and it does not confirm a diagnosis of eczema or any other specific skin condition. The medical examination afforded upon remand to the Veteran was in February 2020. The examiner diagnosed the Veteran with eczema of the hands and feet since approximately 2000. While all the VA medical opinions of record provide a negative nexus opinion, their bases are a lack of treatment for a skin condition during service or any evidence of continuity of care since separation from service. The Board recognizes that it previously failed to draw to the attention of the medical examiners the fact that the Veteran's STRs do contain documentation of a "rash" for large periods of time. Given that shortcoming, the examiners believed that the Veteran's STRs were silent for any skin issues during service, and that belief formed that basis for the opinions. Thus, all the medical opinions are based upon an inaccurate factual premise, and the Board can afford them no probative value on appeal. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). This places the Board back at square one; however, this time, service connection may be awarded without the need for a medical nexus opinion. A rash is a common symptom of eczema and is capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran, therefore, is competent to report both the symptoms and a diagnosis of eczema. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Board also finds credible the Veteran's allegations. He reported that these symptoms began during service, and the STRs document that the was experiencing a rash. The Veteran's DD-214 also corroborates his assertions that he was exposed to many chemicals as an airplane mechanic. While there is a lack of evidence documenting continuity of treatment for this condition since separation from service, the Board nevertheless finds credible the Veteran's contentions, as he indicated to the February 2020 examiner that he does not use creams because he finds them to be ineffective. The Veteran's belief that treatment is ineffective would substantiate the lack of evidence documented in his claims file. Thus, as both a competent and credible source of evidence, the Board finds that the Veteran experienced eczema during service, continuing into the present. Thus, the elements of service connection have been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Because the evidence of record supports the Veteran's claim for entitlement to service connection for a skin disability, the Veteran's appeal is granted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a). TDIU Recall above that the Veteran himself never claimed entitlement to TDIU but that the Board nevertheless found that the issue was raised by the record. See December 12, 2019, Board Decision at 23. On December 26, 2019, VA sent to the Veteran a VA Form 21-8940 so that it could ascertain his periods of employment, earnings, education, and training during the relevant appellate period. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A finding of total disability is appropriate when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15, 4.16. A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 3435 (1994). Where the schedular rating is less than total, a total disability rating for compensation may be assigned when the disabled person is, in the judgment of the rating agency, 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, that disability shall be ratable at 60 percent or more. If there are two or more disabilities, then there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. Marginal employment, however, is not considered substantially gainful employment. Marginal employment includes situations in which an individual's annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual's earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Because VA has failed to define them, the United states Court of Appeals for Veterans Claims has offered guidance on what it means to secure or follow substantially gainful employment. This phrase includes both an economic and non-economic component. Ray v. Wilkie, 31 Vet. App. 58, 72 (2019). The economic component requires that a veteran's income be lower than the federal poverty threshold. The non-economic component includes assessing a veteran's education, training, and work history, with the ultimate question being whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Ibid. To date, the Veteran has not sent a completed VA Form 21-8940 to the Board. Without this information the Board is unable to discern either the economic or non-economic component of the Veteran. That is, the Board has no way of determining whether the Veteran ever was earning during the appellate period less than the federal poverty threshold at that time, nor is it able to evaluate his education, training, and overall work history to determine if he is capable of the physical and mental acts of employment. While VA has a duty to assist the Veteran, that duty is not a one-way street; the Veteran must provide the Board with the necessary information to help substantiate his claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); cf. 38 C.F.R. § 3.156(c)(2) (stating that VA's obligation to reconsider a previously denied claim when new service department records not available during the initial adjudication later are associated with the claims file is not applicable where the claimant failed to provide sufficient information for VA to identify and obtain the records; § 3.159(c)(1)(i) (stating that a claimant must cooperate fully with VA's efforts to help obtain non-federal records by providing sufficient information). Because the Veteran's lack of participation has frustrated the Board's review of this claim, it hereby is denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.