Citation Nr: 0910943 Decision Date: 03/24/09 Archive Date: 04/01/09 DOCKET NO. 03-09 172 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for claimed malignant melanoma. 2. Entitlement to service connection for claimed Persian Gulf War syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from September 1988 to January 1993. This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 2002 RO decision. The Veteran offered testimony at a hearing at the RO before a Hearing Officer in March 2004. In June 2006, the Board granted service connection for an acquired psychiatric disability manifested by anxiety and depression, denied service connection for sinusitis, and remanded the claims of service connection for malignant melanoma and claimed Persian Gulf War syndrome for further development. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND After a careful review of the claims folder, the Board finds that the Veteran's claims must be remanded for further action. Here, the Board notes that the Veteran was afforded a VA examination in October 2008 in connection with her claims. The examiner stated that the Veteran had no Gulf War syndrome manifested by multisystem disorder or undiagnosed illnesses. The examiner, however, did not address the Veteran's various complaints, but merely stated the conclusion without any discussion. In this regard, the Board notes that the Veteran, in a January 2009 statement submitted to VA, indicated that she had various signs and symptoms that might be manifestations of an undiagnosed illness and had experienced them since her service in the Gulf War. These include: fatigue, skin disabilities (including cold sores, rash, skin cancer), headaches, muscle pain, joint pain, respiratory conditions (including sinus allergies and bronchitis), sleep disturbance, gastrointestinal problems and gastroesophageal reflux disease, memory and concentration problems, fine motor tremors, photosensitivity, hair loss in clumps, metallic taste in mouth, cardiovascular symptoms, and unspecified neurological and neuropsychological symptoms. Here, the Board also notes that the Veteran has been service connected for chronic fatigue syndrome, dermatitis, and a psychiatric disability manifested by anxiety and depression, and that some of the symptoms may be related to these service-connected disabilities. Based on the forgoing, the Board finds that an additional VA examination is necessary in order to determine whether the Veteran has symptoms, that are not related to her service- connected disabilities, that may be due to an undiagnosed illness. The October 2008 examiner also noted the Veteran's history of skin cancer and, after examination, diagnosed the Veteran with a history of malignant melanoma, status post topical treatment with Aldara, history of basal cell carcinoma, status post surgical removals, and dysplastic nevi, status post surgical removals. The examiner also opined that the Veteran's malignant melanoma and basal cell carcinoma were "at least as likely as not due to exposures while in the Persian Gulf. By history, [the] Veteran had mustard gas exposure and mustard gas is known to cause skin cancers including malignant melanoma and basal cell carcinoma." Afterwards, the RO, in a November 2008 Supplemental Statement of the Case, denied the Veteran's claims. With respect to the Veteran's skin cancer, the RO noted that it had consulted with the Department of Defense (DoD) and found that, while the Veteran might have been exposed to propellant used to fire scud missiles, no chemical or biological weapons were used against coalition troops. The RO then found that the October 2008 VA examiner's opinion could not be correct, since the Veteran had not been exposed to mustard gas. An official response from the DoD regarding the Veteran's exposure to chemical agents, including mustard gas, however, was not associated with the Veteran's claims file. Based on the foregoing, the Board finds that this matter should be remanded, and upon remand the RO should request documentation from the appropriate sources, to include the DoD, in order to determine what, if any, chemical or biological agents the Veteran was exposed to during her service in the Gulf War and in what amounts. The RO should then arrange for the Veteran's claims file to be reviewed by the physician who prepared the October 2008 VA examination report (or a suitable substitute if that physician is unavailable), for the purpose of preparing an addendum that addresses whether the Veteran's malignant melanoma had its onset in or was caused by any confirmed exposure to chemical or biological agents in service. If the Veteran is not found to have been exposed to mustard gas in service, the examiner must specifically comment on whether this changes the opinion offered in the October 2008 examination report. Prior to affording the Veteran an updated VA examination, the Veteran should be afforded an opportunity to submit any recent medical records or opinions pertinent to the claim that have not already been associated with the Veteran's claims file. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the Veterans Claims Assistance Act, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b)-(c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to contact the Veteran and request that she identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated her since service for her claimed disabilities. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 2. The RO should also contact the appropriate sources, to include the Department of Defense, and request documentation of what, if any, chemical or biological agents, to include mustard gas, the Veteran was exposed to during her service in the Gulf War and in what amounts. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. 3. After associating with the claims folder all available records received pursuant to the above-requested development, the RO should schedule the Veteran for an appropriate VA examination in order to determine the nature and likely etiology of any disabilities related to the Veteran's complaints of fatigue, skin disabilities (including cold sores, rash, skin cancer), headaches, muscle pain, joint pain, respiratory conditions (including sinus allergies and bronchitis), sleep disturbance, gastrointestinal problems and gastroesophageal reflux disease, memory and concentration problems, fine motor tremors, photosensitivity, hair loss in clumps, metallic taste in mouth, cardiovascular symptoms, and unspecified neurological and neuropsychological symptoms. All necessary special studies or tests should be accomplished. It is imperative that the examiner who is designated to examine the Veteran reviews the evidence in the claims folder, including a complete copy of this REMAND, and acknowledges such review in the examination report. The report of examination should contain a detailed account of all manifestations of any disabilities related to the Veteran's reported symptoms, noted above, found to be present. If the examiner diagnoses the Veteran as having a disability or disabilities manifested by any of the Veteran's complaints or symptoms, the examiner should specify a diagnosis and offer an opinion as to whether it is at least as likely as not that such disability was caused by or had its onset during service or within one year of service. The examiner is also specifically asked to determine whether any of the Veteran's symptoms are related to her service- connected disabilities of chronic fatigue syndrome, dermatitis, and a psychiatric disability manifested by anxiety and depression. If no diagnosis is offered with respect to the Veteran's reported symptoms, noted above, the examiner is requested to comment on (i) whether there are nevertheless objective indications of a chronic disability (lasting six months or more) related to any such complaints or symptoms, (ii) at what point did such objective indications of a chronic disability became manifest, and (iii) whether such objective indications of a chronic disability cannot be attributed to any known clinical diagnosis by history, physical examination, and laboratory tests. If no chronic disorder is present, regardless of etiology, the examiner should so state. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached, in a legible report. 4. After associating with the claims folder all available records received pursuant to the above-requested development, the RO should arrange for the Veteran's claims file to be reviewed by the physician who prepared the October 2009 VA examination report (or a suitable substitute if that physician is unavailable), for the purpose of preparing an addendum that addresses whether the Veteran currently has any residuals of malignant melanoma and, if so, whether the Veteran's condition had its onset in service, within one year of service, or is related to her military service or a service-connected disability. All necessary special studies or tests should be accomplished. 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 report of examination should contain a detailed account of all manifestations of any right hip disability found to be present. The examiner is specifically asked to comment on findings related to the Veteran's confirmed exposure, if any, to chemical or biological agents during her service in the Gulf War. If exposure to mustard gas in service in not confirmed, the examiner is asked to comment on whether this changes the opinion offered in the October 2008 examination report. If the examiner is unable to provide the requested information with any degree of medical certainty, the examiner should clearly indicate that. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached, in a legible report. 5. After completion of the above development (and after undertaking any additional development deemed warranted by the record), the RO should review the Veteran's claims in light of all relevant evidence and governing legal authority and precedent. In the event any decision remains adverse, the Veteran must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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. 2008). _________________________________________________ STEPHEN L. WILKINS 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) (2008).