Citation Nr: 23039167 Decision Date: 07/14/23 Archive Date: 07/14/23 DOCKET NO. 16-00 851 DATE: July 14, 2023 ORDER Entitlement to service connection for a skin rash on the legs, arms, and buttocks (hereinafter skin rash), other than bilateral tinea pedis, to include as due to exposure to herbicide agents is denied. FINDING OF FACT The Veteran's skin condition did not have its clinical onset in service and is not otherwise related to service, to include conceded herbicide agent exposure. CONCLUSION OF LAW The criteria for service connection for skin rash, to include as due to exposure to herbicide agents, have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.655. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active-duty service with the United States Marine Corps from November 1965 to September 1969. Among other commendations, the Veteran was awarded the Vietnam Service Medal, Vietnam Campaign Medal, Vietnamese Cross of Gallantry, and Combat Action Ribbon. We thank him for his service. This matter is before the Board of Veterans' Appeals (Board) from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a Skin Diseases VA examination in May 2014. The examiner diagnosed the Veteran with onychomycosis and noted that there were no skin rashes present on his extremities or buttocks during the examination. The Board noted that the Veteran was already service-connected for tinea pedis. Additionally, the examiner did not address any post-service treatment records documenting the lengthy history of the Veteran's chronic skin rashes and other skin diagnoses The appeal was remanded by the Board in January 2020 to obtain personnel records and a schedule a VA skin examination. Personnel records were added to the record in July 2021. The appeal was remanded by the Board again in August 2022 to schedule a VA skin examination. The Board noted that the AOJ had attempted to schedule multiple VA examinations for the Veteran's skin disease. Notice and reminders were given via telephone and through mail delivered by a courier on August 30, 2021, September 2, 2021, and September 22, 2021, in advance of various appointments. The Board noted that there are no copies of these letters in the electronic record and although there is a tracking number associated with the courier delivery service, there is no indication as to which courier service was used to confirm delivery. Ultimately, an examination request was cancelled after the Veteran was deemed a no-show for a VA examination scheduled for January 27, 2022. As there is no demonstration that the Veteran received notification of his scheduled VA examination, the Board found good cause for the Veteran missing his scheduled VA examination, and ordered that another one be scheduled. The efforts since the last prior Board remand in August 2022 include a letter sent via courier on October 13, 2022, for a VA examination scheduled for November 2, 2022. This was confirmed as delivered with submitted documentation on November 26, 2022. The contractor attempted to contact the Veteran on November 1, 2022, and the Veteran was a no-show on November 2, 2022. A letter was sent to the Veteran on November 7, 2022, to see if he was willing to attend an examination. No response was received. Another letter was sent to the Veteran via regular mail for an examination scheduled January 13, 2023. The Veteran was a no-show for that examination. On March 14, 2023, the RO attempted to contact the Veteran via phone with no response. An additional letter was sent to the Veteran on March 15, 2023, to see if he was willing to attend an examination. No response was received. The Board finds that good cause has not been shown for missing the scheduled VA examinations. See 38 C.F.R. § 3.655. The Veteran has had ample opportunity to attend an examination. He has provided no explanation for missing the examinations scheduled and has not responded to the AOJ's attempts to contact him. The duty to assist is not a one-way street. If a claimant wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Under these circumstances, the Board finds that further remand would be futile and that there has been substantial compliance with the prior remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). When a veteran fails to report for an examination without good cause, the claim "shall be rated based on the evidence of record." 38 C.F.R. § 3.655. Thus, the Veteran's claim for service connection for a skin rash will be decided based on the evidence of record. Entitlement to service connection for a skin rash, to include as due to exposure to herbicide agents The Veteran contends he is entitled to service connection for a skin rash located on his arms, legs, and buttocks. He specifically contends that the skin rash is due to exposure to herbicide agents. Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. For certain chronic diseases, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303 (b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 C.F.R. § 3.307 are met, even though there is no record of such disease during service. The enumerated diseases associated with exposure to herbicide agents do not include a skin disorder, notwithstanding chloracne or other acneform disease consistent with chloracne, which is not present in the instant case. 38 C.F.R. § 3.309 (e). Nevertheless, when service connection cannot be granted on a presumptive basis, the Veteran may still establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039,1042 (Fed. Cir. 1994). The Secretary shall consider all information and lay and medical evidence of record in a case and make appropriate determinations as to competence, credibility, and weight. 38 U.S.C. § 5107; 38 C.F.R. § 3.303; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience, if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. When there is an approximate balance between positive and negative evidence, equipoise, the benefit of the doubt doctrine must apply in favor of the Veteran. But when the evidence persuasively favors one side, the claim will be decided on its merits and the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). The Board finds the Veteran has multiple diagnoses of skin conditions and has met the first element of service connection. The Veteran has the met the requirement of having service in the Republic of Vietnam during the applicable period and exposure to herbicide agents is conceded. See 38 C.F.R. § 3.307(a)(6). Service treatment records are silent as to any complaints, treatment, or diagnosis of a skin condition beyond his service-connected tinea pedis. The Veteran submitted his application for Social Security disability benefits and received a mental status examination by a specialist, a Dr. F.T. in June 1990 that noted the Veteran had acne on his skin and noted he took medication. In 1991 the Veteran was diagnosed with keratosis pilaris and dermatitis on his arms and legs. He was also noted with chronic skin rash in June 1993. The Veteran's general medical examination from April 1995 found a history of chronic skin rash with multiple skin rashes involving the extremities, buttocks, head, and face. He was noted with pruritis in the rash areas, and chronic tinea of both feet and history of immersion foot. He was noted with prescribed medications that gave some resolution of skin rashes but they kept recurring. The examiner found pigmented blackish papular lesions of 2 to 3 millimeters over the head, face, buttocks, and feet, mainly right foot. No etiology opinion was provided. The Veteran's VA treatment records from January 2011 indicated red raised nodules in the pubic area with hyperpigmented skin, and inner thigh rash from old jock rash. He was also noted with a diagnosis of dermatitis rash on his left thigh and groin with prescribed medication treatment. The Veteran was found with diffuse hyperpigmented lesions on the left thigh in April 2011. The Veteran received a skin disease VA examination in March 2014 in which he was diagnosed with onychomycosis. The examiner found no rashes present on his extremities or buttocks. The examiner noted that the Veteran debilitating episodes due to toxic epidermal necrolysis, which was based on the Veteran's description of episodes of open sores and nodules. The examiner also noted non-debilitating episodes of urticaria, which was based on the Veteran's description of rashes on both shoulders that was treated with antibiotics. The Veteran was found not to have any acne or chloracne. The examiner found "For the claimant's claimed condition of SKIN RASH LEGS, ARMS, BUTTOCKS, there is no diagnosis because there is no pathology to render a diagnosis." As noted in the August 2022 Board remand, the examiner did not address any post-service treatment records documenting the lengthy history of the Veteran's chronic skin rashes or other skin diagnoses beyond onychomycosis. The Board finds that the Veteran has not shown chronicity of a skin rash beginning during service and occurring after, nor did it manifest to a compensable degree within one year of separation from service. Additionally, the Board finds that there is a lack of continuity of symptomatology, as there has not been shown any evidence of a condition of a skin rash in service, nor evidence of post-service continuance of the same skin rash, and no evidence of a causal connection between the present disability and post service symptomatology. 38 C.F.R. §§ 3.303(b), 3.309(a). The earliest mention of a skin condition in the Veteran's file is in June 1990, which is more than two decades after his separation from service. This long period without problems is one factor that weighs against finding continuity of symptoms. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-7. Critically, there is no competent medical opinion to the contrary. The Board recognizes that the Veteran believes his skin rash is due to his active-duty service and exposure to herbicide agents. However, he is not competent to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Thus, these lay statements do not have probative value. The Board observes that as a result of the Veteran's failure to report for a scheduled VA examination, VA has been unable to obtain potentially favorable evidence corroborating the Veteran's claim. See Wood, supra. Here, the evidence is persuasively against the claim of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Therefore, the Veteran's claim for a service connection for a skin rash to include as due to exposure to herbicide agents is denied. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teich, 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.