Citation Nr: 0812816 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 95-08 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a skin disability due to exposure to herbicides. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD R. Kessel, Associate Counsel INTRODUCTION The veteran had 12 years, 3 months, and 17 days of active service, including service from December 1961 to April 1965, and from July 1965 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In February 2001 and February 2005, the Board remanded the veteran's claim to the RO for additional development. By a November 2006 decision, the Board denied the claim. The veteran then filed an appeal to the United States Court of Appeals for Veterans Claims (Court). In February 2008, the Court issued an order that implemented a joint motion to remand the claim. The case has been returned to the Board for further action. REMAND The Board notes that the veteran filed an application for benefits in August 1988. The submission included a claim of service connection for a skin condition. The veteran asserted that he had a skin condition as the result of exposure to herbicides, such as Agent Orange, during active military service in the Republic of Vietnam. After the case had been returned to the Board, the veteran's representative stated in March 2008 that the veteran did not have anything else to submit. It was noted that the veteran waived his right to a remand to the agency of original jurisdiction (AOJ). The veteran's representative requested that the Board proceed with the adjudication of the appeal. However, given the findings of the February 2008 joint motion, further development is yet required. Unfortunately, although nearly twenty years has passed in the adjudication of the claim, the Board must remand the case for a third time. The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000, during the pendency of this appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2007). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). According to the parties of the joint remand, VA failed to meet its duty to assist the veteran in obtaining all available records to develop his claim. Regarding records in the possession of a Federal agency, the AOJ must obtain records from the VA Medical Center (VAMC) in Manhattan, New York. It was noted in the records from the VAMC in Lebanon, Pennsylvania, that the veteran had a cardiac catheterization done at the Manhattan VAMC in August 2001. The results of the procedure were incorporated into the Lebanon VAMC records. There is no indication that the veteran was treated at the Manhattan facility other than for the one catheterization procedure that is already of record. The veteran has not identified that location as a facility where he was treated for a skin disability. Nevertheless, because the parties to the joint motion have found the records to be pertinent to the claim, a request must be made to the Manhattan VAMC for medical records. Records must also be obtained from the VA facility in Hollidaysburg, Pennsylvania. An August 2001 record from the VA outpatient clinic (VAOPC) in Camp Hill, Pennsylvania, documented that the veteran had paperwork filled out for admission to the facility. A November 2001 record showed that the veteran received an influenza vaccine in October 2001 at Hollidaysburg. Records must be requested from Hollidaysburg in the event there is evidence relevant to the claim. Regarding records not in the possession of a Federal agency, the AOJ must request records from the Florida Hospital Heartland Medical Center in Sebring, Florida, and the Holy Spirit Hospital in Camp Hill, Pennsylvania. Records from the Lebanon VAMC indicated that the veteran had a biopsy of the right forearm in October 2002 at the Florida Hospital Heartland Medical Center. The results were obtained and incorporated into the VA treatment records in April 2004. Additionally, a December 2002 record from the Camp Hill VAOPC showed that the veteran received an influenza vaccine at the Florida facility. Regarding Holy Spirit Hospital, medical records from 1983 are already of record. However, it was noted in an August 2001 record from the Lebanon VAMC that the veteran had recently been seen at Holy Spirit Hospital for swelling in his left leg with a possible blood clot. According to the parties to the joint motion, records from these two facilities must be requested in the event there is evidence relevant to the claim. In February 1995, the veteran submitted an authorization for release of information regarding David J. Ferner, D.O. The veteran noted that he was treated by Dr. Ferner from 1972 to 1975. In April 1995, the RO submitted the release to Dr. Ferner and requested medical records. The RO sent the veteran a letter that referenced the record request. Dr. Ferner did not respond to the RO's request. In September 2005, the RO sent the veteran a letter informing him that Dr. Ferner had not responded to the request. The veteran was asked to contact Dr. Ferner to have him forward the requested information as soon as possible. Records from Dr. Ferner were never received by the RO and the veteran did not refer to the records in the next twelve years of the claims process. According to the joint motion, VA did not meet its duty to assist when it made just one request. Records from Dr. Ferner must therefore be requested again. It appears that the veteran continues to receive regular treatment at the Lebanon VAMC and Camp Hill VAOPC. Updated treatment records should be obtained in light of the remand. Pursuant to the Board's February 2005 remand, the RO sent the veteran a notice letter in September 2005 to comply with the notification provisions of the VCAA. The parties to the joint motion agreed that the Board did not provide an adequate statement of reasons and bases for its finding in the November 2006 decision that VCAA notice had been provided in a timely manner. In the decision, the Board relied on the September 2005 notice letter as sufficient VCAA notice and stated that the notice was timely because the claim was re- adjudicated by a March 2006 supplemental statement of the case (SSOC). The parties to the joint motion perceived that the Board relied on a March 2003 SSOC and the March 2006 SSOC as sufficient notice. Given the parties' agreement regarding what the Board did, another VCAA letter should be sent to the veteran in order to avoid any confusion on his part that may have been created by earlier notices or the joint motion. In the November 2006 decision, the Board found that the veteran failed to report to scheduled VA examinations in January 2006 and February 2006 without good cause. As a result, the Board addressed the claim of entitlement to service connection for a skin disability on the merits based on the evidence then of record. See 38 C.F.R. § 3.655 (2007). The joint motion found that the Board did not provide an adequate statement of reasons or bases for the Board's finding that the veteran failed to provide good cause for "missing" the two scheduled VA examinations. In the November 2006 decision, the Board detailed the RO's reasonable efforts to schedule the veteran for an examination. Additionally, the Board provided an analysis of why good cause had not been shown by the veteran for failing to report to the scheduled examinations. Such analysis does not suffice. Given the language in the joint motion, and despite the facts set forth in the claims file, the Board concludes that the parties to the joint motion have agreed that VA did not properly schedule the veteran for an examination or the veteran provided good cause for failing to report to each examination. Consequently, further attempts at scheduling a VA examination are warranted. Accordingly, this case is REMANDED for the following actions: 1. Send a new VCAA notice letter to the veteran. The letter should notify the veteran of the information and evidence necessary to substantiate a claim of service connection for a skin disability. Notice regarding service connection resulting from exposure to herbicide agents should be included. The veteran must be told to provide any evidence in his possession that pertains to his claim. The letter should also contain notice of the manner in which both disability ratings and effective dates are assigned for awards of disability benefits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Ask the veteran to identify or submit relevant evidence, that is not already of record, pertaining to treatment for a skin condition since he returned from service in Vietnam. The veteran should be given a reasonable opportunity to respond to the notice, and any additional information or evidence received should be associated with the claims file. 2. Obtain updated treatment records from the Lebanon VAMC and the Camp Hill VAOPC and associate the records with the claims folder. 3. Obtain all medical records from the Manhattan VAMC and the VA facility in Hollidaysburg. 4. Request medical records from the Florida Hospital Heartland Medical Center and the Holy Spirit Hospital. Obtain a release from the veteran as necessary. 5. Send a follow-up request for medical records to Dr. Ferner. Obtain an updated release from the veteran as necessary. 6. Notify the veteran of the results of the record requests. When records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 7. Make every attempt to locate the veteran. Enlist the aid of the veteran's representative and family. If, after all efforts by the AOJ, it is determined that the veteran continues to reside in Pennsylvania, schedule the veteran for a VA examination at a local VAMC. A copy of the letter from the VAMC informing him of the date, time, and place of the examination should be associated with the claims folder. Inform the veteran that an examination is necessary to evaluate his claim, and that a failure to report for a scheduled examination, without good cause, could result in the claim being adjudicated on the available record. (If the veteran is currently residing in a jurisdiction other than in Pennsylvania, such as Florida, then transfer the claims folder to the RO where the veteran resides so that a VA examination can be scheduled.) 8. The VA examination should be conducted by a dermatologist, if feasible. The claims folder, with any evidence obtained pursuant to the requests above, must be reviewed by the examiner in conjunction with the examination. The veteran's history, current complaints, medical records (including service medical records) and examination findings must be considered in detail by the examiner. Based on a review of the record and the examination, the examiner should provide an opinion as to medical probabilities that any diagnosed skin disability is in any way related to military service, including in-service herbicide exposure. The rationale for the examiner's opinions should be set forth in detail. If no disability traceable to military service, including in-service herbicide exposure, is found, this should be affirmatively stated, with an explanation for this conclusion. (Should the AOJ fail to locate the veteran for the above examination, or should the veteran fail to report to the examination without good cause, forward the claims file to a physician with the expertise to issue the medical opinion requested above. If an examination is not conducted, have the physician issue the requested medical opinion based on review of the available records in the claims file. If good cause for failure to report is demonstrated, re-schedule the examination.) 9. After undertaking any other development deemed appropriate, re- adjudicate the issue on appeal. If the benefit sought is not granted, furnish the veteran and his representative with a SSOC and afford them an opportunity to respond before the record is returned to the Board for further review. This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).