Citation Nr: 0810283 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-27 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for right leg/ankle injury. 2. Entitlement to service connection for right leg/ankle scar. 3. Entitlement to service connection for migraine headaches. 4. Entitlement to service connection for head scar. 5. Entitlement to service connection for left hand scars. 6. Entitlement to service connection for hearing problems. 7. Entitlement to service connection for eyesight condition. 8. Entitlement to service connection for high blood pressure. 9. Entitlement to service connection for left knee injuries. 10. Entitlement to service connection for a left thigh gasoline burn. 11. Entitlement to service connection for asthma. 12. Whether new and material evidence has been received to reopen a claim for asbestosis. 13. Whether new and material evidence has been received to reopen a claim for service connection for a skin disorder (claimed as rash/itch all over body and left upper leg). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. M. Kreitlow, Associate Counsel INTRODUCTION The veteran had active military service from December 1961 to January 1985, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. 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 finds that remand is necessary to comply with VA's duties to notify and assist the veteran and to provide him with appropriate due process. Duty to Notify The Board notes that during the pendency of this appeal, the Court of Appeals for Veterans Claims (Court) issued a decision in Kent v. Nicholson, 20 Vet. App. 1 (2006), which established additional requirements with respect to the content of notice for reopening claims. The veteran has filed claims to reopen for service connection for a pulmonary disorder (claimed asbestosis). The veteran has also sought to reopen a claim of service connection for a skin disorder (claimed as rash/itch all over body and left upper leg). The veteran was provided notice on these claims in April 2002. This notice, however, failed to advise the veteran of the specific elements of these claims that were previously found to be unestablished by the evidence. Thus it is necessary to remand these claims in order to comply with VA's notice obligations. Duty to Assist The Board finds that additional development should be conducted in order to comply with VA's duty to assist the veteran in developing his claims. Initially the Board notes that the veteran's service medical records are not in the claims file and are presumed missing. A memorandum of Formal Finding on Unavailability of Service Records was placed in the veteran's claims file in February 2006 detailing the steps taken in seeking to obtain his service medical records. The veteran has indicated that he has no copies of his service medical records. Thus there are no service medical records to review in relation to the veteran's claims. Based upon the evidence of record, including the veteran's statements and the medical evidence, the Board finds that the veteran should be provided with VA examinations in relation to his claims. First the veteran is claiming service connection for residuals of shrapnel wounds that he says were received from incoming mortar rounds at Cat Lo Naval Base in Vietnam in 1969, including scars on the right leg/ankle, head and left hand, migraine headaches, and a right leg/ankle disorder. In addition, the veteran has claimed service connection for a gasoline burn on his left thigh. He has said that, while serving in Vietnam, he spilled gasoline from a 55 gallon drum while offloading it to a ship alongside the "Mike Boat" at the harbor in Vung Tau, Vietnam. He has said that he was unable to remove his pants for at least six hours after spilling the gasoline and this caused a burn on his left thigh. The veteran should, therefore, be scheduled for VA scar examination to determine whether he has scars on his right leg/ankle, head and left hand and, if so, whether it is at least as likely as not that they are consistent with the type of shrapnel wounds described by the veteran. The examiner should also determine whether the veteran has a scar on his left thigh and, if so, whether it is at least as likely as not consistent with the type of scar that would be caused by a burn from gasoline. Further, the veteran should be scheduled for neurological and joint examinations to determine whether he currently has migraine headaches and a right leg/ankle disorder that are at least as likely as not due to the claimed shrapnel wounds. In addition, the veteran has claimed service connection for left knee injuries. He reports injuring his left knee twice in service - first in a fall from a tower to man an M-60 machine gun and second in a fall down the stairs during a fire on the USS Mauna Kea AE-22. The Board notes that the veteran's service personnel records indicate he served on the USS Mauna Kea AE-22 from November 1977 to January 1982. Given that the fire incident is the type that would likely be recorded in the ship's records, efforts should be made to obtain those records to corroborate the veteran's history. Thus the veteran should be contacted and asked to provide a two-month timeframe during which the fire on the USS Mauna Kea AE-22 occurred and he injured his left knee. If the veteran responds with an appropriate timeframe, then an attempt should be made to obtain deck logs or other appropriate documentation in which the occurrence of this fire on the USS Mauna Kea AE-22 would have recorded. Thereafter, the veteran should be scheduled for a VA joint examination and the examiner should be asked to render a diagnosis of any existing left knee disorder and, if one exists, to render an opinion as to whether it is related to either of these injuries reported to have occurred during the veteran's service. Next, the veteran has claimed service connection for hearing problems. The veteran should be scheduled for a VA audio examination to determine whether he currently has any impairment of his hearing. If one is found then an opinion should be given as to whether it is at least as likely as not due to any injury or disease incurred in service, including due to any noise exposure. Further, the veteran claims service connection for high blood pressure. The Board notes that medical treatment records from 1986 to 2006 do not reflect a diagnosis of hypertension. However, they do show blood pressure readings ranging from 132/77 to 170/90, with six of these readings having a diastolic pressure of 90 or more (the earliest reading from November 1989). The veteran has also reported that he was told multiple times in service that he had high blood pressure. In addition, he has asserted that his hypertension developed secondary to his exposure to herbicides during his Vietnam service. The Board notes that although the evidence shows the veteran did serve in Vietnam and thus is entitled to a presumption of exposure to herbicides, hypertension is not a presumptive disease for which service connection can be granted. See 38 C.F.R. § 3.309(e) (2007). Thus in order to establish service connection for hypertension based upon Agent Orange exposure, there must be affirmative evidence that his hypertension is etiologically related thereto. The Board finds, therefore, that the veteran should be scheduled for a VA examination to determine whether he currently has hypertension. If so, an opinion should be given as to whether it is at least as likely as not directly related to any injury or disease incurred in service. If it is not found to be directly related to service, then an opinion should be given whether it is at least as likely as not etiologically related to exposure to herbicides in Vietnam. The veteran has also asserted service connection for an "eyesight condition." The Board notes that the medical evidence of record indicates that the veteran has refractive error in both eyes and wears glasses. However, this medical evidence also shows the veteran has diabetes mellitus, which may cause diabetic retinopathy. Thus, the veteran should be scheduled for a VA eye examination to determine whether he currently has an "eyesight condition" other than refractive error. The Board notes that, per 38 C.F.R. § 3.303(c), refractive error is not a disease or injury within the meaning of applicable legislation. In other words, it is not a disability for which service connection can be granted. However, if the veteran has an eye disorder other than refractive error, an opinion should be given as to whether it is either at least as likely as not due to any injury or disease incurred in service or is proximately due to or the result of the veteran's service-connected diabetes mellitus. Lastly, the veteran seeks service connection for asthma. Although VA previously denied service connection for a pulmonary disability in an unappealed February 1990 rating decision, subsequent to that rating action, he was diagnosed as having this disease. Because service connection was not previously denied for his asthma, that disability must be considered de novo. Boggs v. Peake, No. 2007-7137 (Fed. Cir. Mar. 26, 2008); see also Ephraim v. Brown, 82 F.3d. 399, 402 (Fed. Cir. 1996). Thus, the Board concludes that, on remand, the veteran should be afforded an appropriate VA examination to determine whether his asthma is related to or had its onset during service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, since it is necessary to remand this case for VA examinations, further efforts should be taken to obtain treatment records from the LBJ Tropical Medical Center where, it appears, the veteran receives his medical care. The Board notes that the veteran previously submitted treatment records from this medical center for the period of July 1986 to April 2003. Thus, the veteran should be requested to either complete a release form or to provide the treatment records himself to VA for the period of May 2003 to the present. The veteran is advised that these records may be highly relevant, and his failure to assist VA in obtaining them could negatively affect the outcome of his claims. Due Process The Board notes that the veteran has claimed that many of his conditions are due to injuries received during a mortar attack on his base (Cat Lo) in Vietnam. The RO, however, not addressed whether the veteran is entitled to the combat presumption. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2006). Such evidence should be considered in adjudicating the veteran's claim, Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996), especially since his service medical records are missing. Accordingly, the case is REMANDED for the following action: 1. Provide notice that adequately explains to the veteran what information and evidence he must submit to reopen the claims for service connection for a pulmonary disorder (claimed as asthma and asbestosis) and skin disorder (claimed as rash/itch all over body and left upper leg). 2. Contact the veteran and ask him to provide a completed release form authorizing VA to obtain his treatment records from for the LBJ Tropical Medical Center for the period from May 2003 to the present. The veteran should be advised that he can submit these treatment records himself in lieu of providing the completed release form. If the veteran provides a completed release form, a request should then be made to the LBJ Tropical Medical Center for these treatment records. All efforts to obtain these records, including follow-up requests, if appropriate, should be fully documented. The veteran and his representative should be notified of unsuccessful efforts in this regard and afforded an opportunity to submit the identified records. 3. Contact the veteran and request that he provide a two-month period in which he injured his left knee falling down stairs during a fire onboard the USS Mauna Kea AE- 22. If the veteran responds with an appropriate timeframe, contact the appropriate agency and request the deck logs or any other documents that would have recorded the occurrence of this fire described by the veteran. 4. When the above development has been accomplished and any available evidence has been obtained, the veteran should be scheduled for the following VA examinations. The claims file must be provided to each examiner for review in conjunction with the examination, and said review should be noted in the examiner's report. A complete rationale should be provided by the examiner for any opinion rendered. Scar Examination - After reviewing the claims file, the examiner should answer the following questions: a) Does the veteran have scars on his right leg/ankle, head and left hand and, if so, is it at least as likely as not (i.e., at least a 50 percent probability) that they are related to injury incurred during service, specifically shrapnel wounds from a mortar or rocket? The Board notes that there is evidence that the veteran's base (Cat Lo) in Vietnam received enemy rocket fire (five B-40 rockets) in April 1969 and that four navymen received minor wounds (two were medvaced). The veteran has stated that he received shrapnel wounds to his head, left hand and right leg/ankle during a mortar attack on Cat Lo and that he was taken to the hospital in Vung Tau. A request to the National Personnel Records Center for a search of the records from the hospital in Vung Tau, however, resulted in no records found. b) Does the veteran have a burn scar on his left thigh and, if so, is it at least as likely as not (i.e., at least a 50 percent probability) that it is related to injury incurred during service, specifically the result of a gasoline burn? The veteran has stated that, while transferring gallons of gasoline from one ship to another while in Vietnam, he spilled gasoline down the front of his left pant leg, that this remained there for at least six hours and it caused a burn on his left thigh. Joint Examination - After reviewing the claims file, the examiner should answer the following questions: a) Does the veteran have any current right leg/ankle disorder (other than scars)? If a current disorder is found, the examiner should then render an opinion whether it is at least as likely as not (i.e., at least a 50 percent probability) that it is related to any injury or disease incurred during service, specifically whether it is due to shrapnel wounds received in Vietnam. b) Does the veteran have any current left knee disorder? If a current disorder is found, the examiner should then render an opinion whether it is at least as likely as not (i.e., at least a 50 percent probability) that it is related to any injury or disease incurred during service. The veteran claims that he injured his left knee twice in service - first from a fall from a tower and second from a fall down stairs during a fire on the USS Mauna Kea AE-22. Neurological Examination - After reviewing the claims file and examining the veteran, the examiner should determine whether the veteran currently has migraine headaches. If a diagnosis of migraine headaches is rendered, the examiner should then render an opinion whether it is at least as likely as not (i.e., at least a 50 percent probability) that they are related to any injury or disease incurred during service, specifically whether they are due to shrapnel wounds received in Vietnam. The veteran claims he received shrapnel wounds to the head and this causes him to have migraine headaches. Audio Examination - After reviewing the veteran's claims file and conducting all diagnostic testing necessary, the examiner should determine whether the veteran currently has any hearing impairment. If so, the examiner should then render an opinion whether it is at least as likely as not (i.e., at least a 50 percent probability) that it is related to any disease or injury in service, including noise exposure in service. A full history as to any pre-service, service and post- service noise exposure should be obtained from the veteran prior to the examiner rendering an opinion. Hypertension Examination - After reviewing the claims file and conducting any necessary tests, the examiner should determine whether the veteran has hypertension. If so, the examiner should then render an opinion whether it is at least as likely as not (i.e., at least a 50 percent probability) that it is directly related to any injury or disease incurred in service. If not, then the examiner should render an opinion whether it is at least as likely as not (i.e., at least a 50 percent probability) that it is etiologically related to the veteran's presumed exposure to herbicides during his service in Vietnam. Eye Examination - After reviewing the claims file and conducting any necessary diagnostic testing, the examiner should determine whether the veteran currently has an eye disorder other than refractive error. If so, the examiner should then render an opinion whether it is at least as likely as not (i.e., at least a 50 percent probability) that it is directly related to any injury or disease incurred in service or that it is proximately due to or the result of the veteran's service-connected diabetes mellitus. Respiratory Examination - Afford the veteran an appropriate VA examination to determine whether it is at least as likely as not that he has a respiratory disability that is related to or had its onset during service, to specifically include his likely exposure to asbestos during service. The claims folder should be made available to and reviewed by the examiner. The examiner should diagnose all pulmonary disabilities found to be present and opine whether it is at least as likely as not that any pulmonary disability found to be present had its onset in, or is related to service, and in particular, to his presumed in-service asbestos exposure. The rationale for any opinion expressed should be provided in a legible report. 5. Then, after taking any actions needed to ensure VA's duty to assist and notice obligations are accomplished and that the VA examination reports are complete, the veteran's claims should be readjudicated. In readjudicating his claims, it should be determined whether the veteran is entitled to the combat presumption set forth in 38 U.S.C.A. § 1154(b) (West 2002) and 38 C.F.R. § 3.304(d) (2007). If such action does not resolve the claims, a Supplemental Statement of the Case should be issued to the veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, these claims should be returned to this Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2007). _________________________________________________ STEVEN D. REISS Acting 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) (2007).