Citation Nr: 0810543 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 05-30 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for fungal skin infection, to include as due to herbicide exposure. 2. Entitlement to an increased disability rating for service-connected degenerative disc disease and degenerative joint disease of the cervical spine, currently rated 10 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran, his spouse, and his daughter ATTORNEY FOR THE BOARD David T. Cherry, Counsel INTRODUCTION The veteran served on active duty from November 1952 to November 1972. Service in the Republic of Vietnam is indicated by the evidence of record. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Procedural history Cervical spine disability In a December 1998 rating decision, service connection was granted for narrowing of C5-C7; a noncompensable (zero percent) disability rating was assigned. In a January 2003 rating decision, an increased (compensable) rating was denied for narrowing of C5-C7. The veteran perfected an appeal of that denial. A July 2005 statement of the case (SOC) reflects that the RO reclassified the disability as degenerative disc disease and degenerative joint disease of the cervical spine. In a March 2007 rating decision, a 10 percent disability rating was assigned for the service-connected cervical spine disability, effective December 6, 2006. This issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) [when a veteran is not granted the maximum benefit allowable under the Rating Schedule, the pending appeal as to that issue is not abrogated]. Fungal infection of the skin In a June 2005 rating decision, service connection was denied for a fungal skin infection. The veteran perfected an appeal of that denial. Hearing In January 2008, the veteran, his spouse, and his daughter testified at a hearing held at the RO before the undersigned Veterans Law Judge, a transcript of which has been associated with the veteran's claims file. The appeal is REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. VA will notify the veteran if further action on his part is required. Issues not on appeal In a May 2007 rating decision, service connection was denied for benign prostatic hypertrophy (claimed as a prostate condition), and the RO held that new and material evidence had not been submitted to reopen a previously-denied claim of service connection for chest pain (claimed as residuals of a heart attack). To the Board's knowledge, the veteran has not disagreed with those decisions. Those issues are therefore not in appellate status. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. At the January 2008 hearing, the veteran raised the issue of service connection for a neurological disorder, to include headaches and vertigo, secondary to the service-connected cervical spine disability. See the hearing transcript, pages 11-14. This matter is referred to the RO for appropriate action. REMAND For reasons expressed immediately below, the Board believes that the issues on appeal must be remanded for further evidentiary and procedural development. 1. Entitlement to service connection for fungal skin infection, to include as due to herbicide exposure. Reason for remand Medical examination and opinion In his November 2004 claim, the veteran alleged that his skin disability was caused by exposure to Agent Orange. Because the veteran served in Vietnam, his exposure to Agent Orange is presumed. See 38 U.S.C.A. § 1116(f) (West 2002). Moreover, the veteran's service medical records reflect that in November 1967 the veteran had an infected hand manifested by a rash, that in March 1968 he had allergic dermatitis, and that in January 1970 he had itching and dry hands. Recent medical records reflect a diagnosis of tinea cruris in 2004. The United States Court of Appeals for Veterans Claims (Court) has held that, in situations in which there is competent evidence of a current disability evidence indicating an association between the claimant's disability and his active service, in order to fulfill its statutory duty to assist the veteran in the development of his claim VA is to obtain a medical opinion as to whether there is a nexus between the claimed disability and his active service. See Charles v. Principi, 16 Vet. App. 370 (2002). In light of the medical evidence of a recent diagnosis of tinea cruris and the evidence showing in-service skin symptomatology, the Board believes that a medical examination is necessary to determine the current nature of the skin disability and that a medical nexus opinion addressing the veteran's two theories of entitlement is also necessary. 2. Entitlement to an increased disability rating for service-connected degenerative disc disease and degenerative joint disease of the cervical spine. Reasons for remand Additional notice under the Veterans Claims Assistance Act of 2000 (VCAA) While the RO provided notice as to as to Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) in March 2006, in light of the subsequent Court decision in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. Jan. 30, 2008), more detailed notice must be provided. The Court in Vazquez-Flores held that a notice letter must inform the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity and the effect that worsening has on the claimant's employment and daily life. The March 2006 notice letter did not satisfy that requirement. Also, the veteran is rated under a Diagnostic Code which requires specific measurements as to limitation of cervical spine motion. The notice letter did not provide at least general notice of that requirement. VA examination At the January 2008 hearing, the veteran, his spouse, and his daughter testified that he has difficulty rotating his cervical spine. See the hearing transcript, pages 11-16. It appears that the veteran is alleging that his service- connected cervical spine disability has worsened since the date of the December 2006 VA examination. Under the circumstances here presented, the Board believes that a medical examination is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997) [a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination]. VA medical records The veteran testified that he continues to receive treatment at a VA Medical Center. See the hearing transcript, page 21. The last request from the VA Medical Center in Temple, Texas was completed in March 2007. Additional records from that facility should be obtained. Accordingly, this case is remanded to the Veterans Benefits Administration (VBA) for the following actions: 1. VCAA notice pursuant to Vazquez- Flores v. Peake, No. 05-0355 (U.S. Vet. App. Jan. 30, 2008) should be furnished to the veteran, with a copy to his representative. 2. VBA should attempt to obtain records pertaining to the veteran from the Temple, Texas VAMC from March 2007 to the present. Any treatment records so obtained should be associated with the veteran's claims file. 3. VBA must arrange for the veteran to undergo a physical examination to determine the severity of his service- connected cervical spine disability. The report of the physical examination should be associated with the veteran's VA claims folder. 4. VBA should schedule the veteran for an examination to determine the existence, nature, and etiology of any current skin disorder. After examination of the veteran and review of all pertinent medical records, the examiner should determine whether the veteran has a current skin disorder. If a current skin disorder is diagnosed, the examiner should provide an opinion as to whether it is as least as likely as not that the veteran's skin disorder is related to his military service, to include in-service exposure to herbicides as well as the documented skin complaints referred to above. The report of the examination should be associated with the veteran's VA claims folder. 5. After the development requested above has been completed to the extent possible, and after undertaking any additional development it deems necessary, VBA should then review the record and readjudicate the veteran's claims. If the decision remains unfavorable to the veteran, in whole or in part, a supplemental statement of the case (SSOC) should be prepared. The veteran and his representative should be provided with the SSOC and an appropriate period of time should be allowed for response. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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 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). _________________________________________________ Barry F. Bohan 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).