Citation Nr: 0633764 Decision Date: 11/01/06 Archive Date: 11/16/06 DOCKET NO. 04-20 207A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for end-stage renal disease, including as due to exposure to jet fuel and benzene. 2. Entitlement to service connection for congestive heart failure, including as due to exposure to jet fuel and benzene. 3. Entitlement to service connection for diabetes mellitus, including as due to exposure to jet fuel and benzene. 4. Entitlement to service connection for hypertension, including as due to exposure to jet fuel and benzene. 5. Entitlement to service connection for cellulitis of the right leg, including as due to exposure to jet fuel and benzene. 6. Entitlement to service connection for cellulitis of the left leg, including as due to exposure to jet fuel and benzene. 7. Entitlement to service connection for peripheral neuropathy of the right lower extremity, including as due to exposure to jet fuel and benzene. 8. Entitlement to service connection for peripheral neuropathy of the left lower extremity, including as due to exposure to jet fuel and benzene. 9. Entitlement to service connection for depression, including as due to service-connected disabilities. 10. Entitlement to an increased (compensable) rating for residual burn scar, right ankle. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The veteran served on active duty from February 1976 to December 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO). In a July 2003 rating decision, the RO denied a claim for an increased (compensable) disability rating for residual burn scar, right ankle. The veteran perfected an appeal as to that decision. In a May 2005 rating decision, the RO denied claims for service connection for end-stage renal disease; congestive heart failure; diabetes mellitus; hypertension; cellulitis of the left and right legs; peripheral neuropathy of the right and left extremities; and depression. The veteran initiated an appeal by filing a notice of disagreement in July 2005. The RO provided a statement of the case on this matter in October 2005. During a June 2006 Travel Board hearing before the undersigned, it was determined that a VA Form 9 was submitted on May 22, 2006 thereby perfecting these claims on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board has determined that additional development is necessary prior to completion of its appellate review of the veteran's claims on appeal for the following reasons. First, the veteran is claiming entitlement to service connection for the following claimed disorders on the basis that they are due to exposure to toxic hydrocarbon chemicals, specifically jet fuel J-P4 and benzene while serving as a fire-fighter in service: end-stage renal disease; congestive heart failure; diabetes mellitus; hypertension; cellulitis of the left and right legs; and peripheral neuropathy of the right and left extremities. The veteran states that he was a firefighter in the U.S. Air Force and had to standby on the runway while came in from Vietnam. In this role he was exposed to jet fuel J-P4 and benzene. Also, on one occasion a jet crashed and his group put the fire out. At that time he was burned and exposed to substances from the fire. Service medical records do show that he was treated for burns received while fighting a fire. Review of the claims file shows that the U.S. Air Force certified to VA that the veteran served in that branch of service, and verified-as requested by VA-that there was nothing in the veteran's record to indicate any Vietnam service. The claims file does not, however, contain any service personnel records or other service records needed to substantiate whether the veteran had a military occupational specialty of firefighter or otherwise was exposed to such chemicals as claimed in performing his regular duties in service. Such claimed duties would indicate that the veteran may have been exposed to such hazardous materials on a regular basis. These duties would appear to be consistent with his claim regarding such exposure and with service medical records showing that he was injured while fighting a fire at a fire pit. The AOJ should obtain the veteran's personnel records from the National Personnel Records Center (NPRC); determine the veteran's military occupational specialty; and contact the Air Force to obtain any relevant information to assist in determining whether the veteran was likely exposed to hazardous chemicals including jet fuel J-P4 and benzene, when he was performing duties associated with his military occupational specialty. On remand, the RO also should refer the claims file to an appropriate specialist for a medical opinion to discuss the onset, nature, and etiology of the veteran's end-stage renal disease; congestive heart failure; diabetes mellitus; hypertension; cellulitis of the left and right legs; and peripheral neuropathy of the right and left extremities. The specialist should specifically provide an opinion as to the relationship, if any, of these conditions to exposure to toxic chemicals while in service. The veteran has reported that he received treatment for over 35 years from Neil S. Millman, D.O., P.C for claimed disorders. He has completed and submitted VA Forms 21-4142 (Authorization and Consent to Release Information to VA), dated in April 2003, May 2004 and September 2004, indicating such treatment from Dr. Millman. Other than two statements provided by Dr. Millman in January 2000 and October 2003, however, the claims file does not contain any clinical records from him or indications that VA requested the cited records. Further, in a note received in October 2003, Dr. Millman stated that he had not received a request for records from VA. The RO should take appropriate action to request treatment records from 1970 to the present from Dr. Millman. The RO should also ensure that appropriate action has been taken to obtain any other treatment records identified by the veteran. The veteran is claiming entitlement to service connection for depression as secondary to both his service-connected residual burn scar of the right ankle and his claimed but not service-connected disorders which are the subject of this remand. The Board finds that the claim for service connection for depression is inextricably intertwined with the other service connection issues on appeal. Therefore a decision by the Board on the veteran's depression claim would at this point be premature. See Harris v. Derwinski, 1 Vet. App 180, 183 (1991) (two issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue); Parker v. Brown, 7 Vet. App. 116, 118 (1994). See also Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (Where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together). Thus, the Board's resolution of the depression claim at the present time would be premature. That determination must be adjudicated in connection with the other claims for service connection on appeal. The veteran is also claiming entitlement to an increased rating for his residual burn scar of the right ankle. VA last examined the veteran's burn scar of the right ankle for compensation purposes in May 2003, over three years ago. During the recent hearing in June 2006, the veteran testified indicating that the scar disability had worsened. At that time, visual examination of the scar was made by the undersigned, however, an examination is necessary in order to obtain pertinent medical findings and distinguish any manifestations of the service-connected residual burn scar of the right ankle from unrelated pathology there. In this connection, there is medical evidence of cellulitis and lesions involving both legs. Further, the above indicates that the veteran's symptoms associated with his residual burn scar of the right ankle may have worsened. The veteran is entitled to a new VA examination where there is evidence (including statements by the veteran) that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The fulfillment of the VA's statutory duty to assist the appellant includes providing additional VA examination by a specialist when indicated, and conducting a thorough and contemporaneous medical examination, and providing a medical opinion, which takes into account the records of prior medical treatment, so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Board determines that a VA examination would be useful in determining the current status of the appellant's residual burn scar of the right ankle. (The duty to assist requires medical examination when such examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4).) Accordingly, the case is REMANDED for the following action: 1. The AOJ should ask the veteran to detail in a statement the names of chemicals he was exposed to in service and to describe both in-service and any post- service chemical exposure. The RO should ask the veteran for corroborating statements from alternative sources (including fellow servicemen or relatives). 2. The veteran should be asked to identify all medical care providers who evaluated or treated him since his release from service for end-stage renal disease; congestive heart failure; diabetes mellitus; hypertension; cellulitis of the left and right legs; peripheral neuropathy of the right and left extremities; depression; and/or residual burn scar of the right ankle. The AOJ should attempt to obtain copies of medical records from all sources identified which are not of record; including but not limited to clinical records from Neil S. Millman, D.O., P.C. dated from approximately 1970 to the present. 3. The AOJ should contact the National Personnel Records Center (NPRC) and the service department (Air Force) to obtain copies of all available service personnel records, showing the veteran's assignments and duties during active duty from February 1976 to December 1986. If records are unavailable, the provider should so state. 4. The AOJ should request the Department of Defense (DOD) or the U.S. Air Force to provide information about the duties of the veteran's military occupational specialty as determined after completing actions in action #2 above. Inform them of any duties indicated by the service records consistent with the veteran's claim of exposure to chemicals such as jet fuel and benzene. They should be requested to provide information as to the likelihood that the veteran, given his military occupations, was recurrently exposed to jet fuel J-P4 and/or benzene (or related hydrocarbon chemicals) while performing his military duties. 5. After completion of the above, the RO should refer the veteran's claims file to an appropriate specialist (such as in toxicology due to occupational and environmental exposures) for a medical opinion. The specialist should review the entire claims file, and must indicate in the examination report that such review was performed. The examiner should discuss the history, onset, and etiology of the veteran's end-stage renal disease; congestive heart failure; diabetes mellitus; hypertension; cellulitis of the left and right legs; and/or peripheral neuropathy of the right and left extremities. The specialist should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disorder was incurred in, caused by, or was aggravated (worsened), as the result of some incident of active service, to include toxic chemical exposure; or if not directly related to such injury or disease in service, was etiologically related to a disease that was so related to some incident in service to include exposure to toxic chemicals. The complete rationale should be provided for any opinion given. If any requested medical opinion cannot be given, the examiner should state the reason why. 6. The RO should also schedule the veteran for a VA examination to determine the severity of impairment due to the service-connected residual burn scar of right ankle. The claims folder must be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. The rationale for any opinion expressed should be included in the examination report. If the examiner determines that it is not feasible to respond to any of the inquiries below, the examiner should explain why it is not feasible to respond. The examiner should distinguish any non- service-connected skin manifestations of the right ankle from those associated with the service connected burn scar. For the service-connected skin disorder including any residuals thereof, the examiner must provide specific findings as to each of the following: A. The nature of the service-connection skin disorder and resulting residuals including any scarring, cystic nodules, exudation, pruritis, and any other manifestations. B. The location and measurement, in square inches or square centimeters, of the area or areas encompassed by residual scarring; C. Note whether any associated scarring includes any of the following manifestations: extensive lesions, poorly nourished, repeated ulceration, unstable, tender, and/or painful symptoms; and D. Note whether the associated scarring produces limitation of function of the affected part. 8. Following any additional development deemed appropriate by the RO (including examination of the veteran regarding his depression claim if warranted by the record as developed pursuant to the actions above), the RO should readjudicate all issues on appeal. If a determination remains unfavorable to the appellant, he and his representative should be furnished a supplemental statement of the case and be afforded the applicable time period in which to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2006).