Citation Nr: 0410275 Decision Date: 04/21/04 Archive Date: 04/30/04 DOCKET NO. 00-08 205 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for skin disease, classified as angioedema/urticaria (including claimed as secondary to service-connected sinusitis or due to Agent Orange exposure). 2. Entitlement to service connection for tinea pedis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R.P. Harris, Counsel INTRODUCTION The appellant had active service from August 1965 to August 1968 (including Vietnam service from March 1967 to March 1968) and February 1970 to January 1978. He apparently had other period or periods of active/inactive service (which will be addressed in the REMAND section below). Historically, a March 1994 rating decision denied service connection for skin disease, classified as angioedema/urticaria and tinea pedis (including claimed as due to Agent Orange exposure). Tinea was not listed as an issue, but was considered in the discussion. After appellant was provided notification of that rating decision, he did not file a timely Notice of Disagreement therewith. That March 1994 rating decision represents the last final decision with regards to the service connection issues. Evans v. Brown, 9 Vet. App. 273, 285 (1996). This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 1999 rating decision by the Nashville, Tennessee, Regional Office (RO), which denied reopening of the skin disease service connection claim and denied service connection for a sinus disorder. Although appellant requested an RO hearing and such hearing was scheduled, he subsequently cancelled it. An August 2002 rating decision granted service connection for diabetes mellitus based on presumptive herbicide exposure and denied service connection for urticaria secondary to diabetes. A March 2003 rating decision granted service connection for sinusitis (thereby rendering that granted service connection issue moot). In a March 2003 Supplemental Statement of the Case, the RO determined that new and material evidence had been submitted to reopen the skin disease service connection claim, insofar as angioedema/urticaria was concerned, and denied the claim on the merits. It was also noted that the Agent Orange law had changed since the prior disallowed claim and so these were considered as part of the new claim. However, in that March 2003 Supplemental Statement of the Case, the RO also determined that the skin disease service connection claim, insofar as tinea pedis was concerned, was a new claim, incorrectly stating that a "specific claim for service connection for tinea pedis has not been adjudicated." This determination apparently stems from the fact that tinea was not listed in the issue. As this presents the broadest possible review, the Board will also consider the issue de novo and as such the issues are as listed on the title page. A November 2003 Travel Board hearing was held before the undersigned Board Member. Although additional issues appear to have been raised in a written statement by appellant, inasmuch as they have not been developed for appellate review, they are referred to the RO for appropriate action. Kellar v. Brown, 6 Vet. App. 157 (1994). This appeal is being REMANDED to the RO, via the Appeals Management Center in Washington, DC; and VA will provide notice if further action is required on appellant's part. REMAND Appellant's service records and a February 1990 application for VA disability benefits indicate that appellant had active service from August 1965 to August 1968 and February 1970 to January 1978, and may have had additional period or periods of active service and/or inactive service. It does not appear that the RO has sought verification of any additional period or periods of active service and/or inactive service nor specifically sought any associated medical records. Since the appellate issues involve service connection, verification of any additional period or periods of active service and/or inactive service and an attempt to obtain all available medical records pertaining to such period(s) would appear warranted. With regard to the skin disease service connection claims, insofar as angioedema/urticaria is concerned, appellant has submitted a written medical article in July 1999 and a written statement from a medical school professor of allergy and immunology in December 2003, that suggest a relationship may exist between appellant's service-connected sinus disorder and his angioedema/urticaria. Since appellant has not been afforded appropriate VA examination with medical opinion rendered addressing the etiology of his angioedema/urticaria, such examination with medical opinion should be arranged by the RO. Examination as to etiology of all the pathology is indicated. Accordingly, the case is REMANDED for the following: 1. The RO should contact the National Personnel Records Center (NPRC), or any other appropriate agency, and request that any additional active and inactive service periods be verified and any additional service medical records (inpatient, outpatient) pertaining to such periods be obtained and associated with the claims folder. In the event that additional service medical records are unavailable, this should be noted in writing in the claims folder. 2. Thereafter, the RO should arrange appropriate VA examination(s) medically indicated, such as dermatologic, Agent Orange, and/or immunologic examination(s), to determine the etiology of any skin pathology presently manifested. The examiner(s) should review the entire claims folder and express an opinion, including degree of probability in terms of is it at least as likely as not (i.e., is there at least a 50 percent probability) as to the following: (i) is any skin pathology causally or etiologically related to military service, including Agent Orange exposure; (ii) is any skin pathology causally or etiologically related to a service-connected disability, including sinusitis or diabetes, (or medications taken for a service- connected disability); and (iii) did a service-connected disability, including sinusitis or diabetes (or medications taken for a service-connected disability) aggravate any skin pathology? The term "aggravate" used herein refers to post-service aggravation of a non-service-connected condition by a service- connected condition, to wit: an increase in severity of a non- service-connected disability (any additional impairment of earning capacity) attributable to and caused by an already service- connected condition. See Allen v. Brown, 7 Vet. App. 439 (1995). The examination report(s) should contain an adequate discussion of appellant's medical history, as well as clinical findings upon which the diagnosis is based, and provide a sufficient rationale for the medical conclusions. If these matters cannot be medically determined without resort to mere conjecture, this should be commented upon by the examiner(s) in the report(s). 3. The RO should consider any additional evidence and readjudicate the appellate issues with consideration of applicable court precedents and statutory and regulatory provisions, under all appropriate legal theories. When this development has been completed, and if the benefits sought are not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of a supplemental statement of the case. No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested development. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment by the RO. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ MICHAEL D. LYON 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) (2003).