Citation Nr: 0940150 Decision Date: 10/22/09 Archive Date: 10/30/09 DOCKET NO. 08-36 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for prostate cancer, claimed as due to asbestos exposure. 2. Entitlement to service connection for leukemia, claimed as due to asbestos exposure. 3. Entitlement to service connection for residuals of chemical burns to the bilateral hands. 4. Entitlement to an increased (compensable) disability rating for service-connected residuals of chemical burns to the bilateral feet. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD K. K. Buckley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from April 1955 to December 1957. In a July 1966 rating action, service connection was granted for chemical burns on both feet. A noncompensable (zero percent) disability rating was assigned. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied the Veteran's five claims. In February 2009, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims folder. The issues of entitlement to service connection for residuals of chemical burns to the bilateral hands, entitlement to an increased disability rating for residuals of chemical burns to the bilateral feet, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Veteran will be notified if further action on his part is required. FINDINGS OF FACT 1. A preponderance of the evidence is against the proposition that the Veteran was exposed to asbestos during his military service. 2. The competent medical evidence of record does not support a finding that a relationship exists between the Veteran's currently diagnosed prostate cancer and his military service. 3. The competent medical evidence of record does not support a finding that a relationship exists between the Veteran's currently diagnosed leukemia and his military service. CONCLUSIONS OF LAW 1. Prostate cancer was not incurred in or aggravated by the Veteran's military service, to include as due to asbestos exposure. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 2. Leukemia was not incurred in or aggravated by the Veteran's military service, to include as due to asbestos exposure. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to service connection for prostate cancer, claimed as due to asbestos exposure. 2. Entitlement to service connection for leukemia, claimed as due to asbestos exposure. The Veteran seeks entitlement to service connection for prostate cancer and leukemia, which he contends are due to in-service exposure to asbestos. As the outcome of both issues involves the application of similar law to similar facts, the Board will address the issues together in the interest of economy. The issues of service connection for residuals of chemical burns to the hands, a compensable disability rating for residuals of chemical burns to the feet, and TDIU will be addressed in the Remand section below. In the interest of clarity, the Board will discuss certain preliminary matters. The Board will then render a decision. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist a claimant in the development of a claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice, and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the Veteran. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the Veteran and the Veteran's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claims. As part of this notice, VA is to specifically inform the Veteran and the Veteran's representative, if any, of which portion, if any, of the evidence is to be provided by the Veteran and which part, if any, VA will attempt to obtain on behalf of the Veteran. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant, but not mentioning who is responsible for obtaining such evidence, did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues currently before the Board. The Board observes that the Veteran was informed of the evidentiary requirements for service connection in a letter dated August 2007. The VCAA letter indicated that in order for service connection to be granted there must be evidence of an injury in military service or a disease that began in or was made worse during military service, or that there was an event in service that caused an injury or disease; a current physical or mental disability shown by medical evidence; and a relationship between the disability and an injury, disease, or event in military service. Additionally, the August 2007 VCAA letter requested that the Veteran provide additional details with respect to his claimed in- service asbestos exposure. Crucially, the RO informed the Veteran of VA's duty to assist him in the development of his claims in the above-referenced VCAA letter. Specifically, the August 2007 letter stated that VA would assist the Veteran in obtaining records from any Federal agency including the military, VA medical centers, and the Social Security Administration. With respect to private treatment records, the letter informed the Veteran that VA would request such records, if the Veteran completed and returned the attached VA Form 21-4142, Authorization and Consent to Release Information. The Veteran was also advised in the VCAA letter that a VA examination would be scheduled if necessary to make a decision on his claims. The August 2007 VCAA letter emphasized: "If the evidence is not in your possession, you must give us enough information about the evidence so that we can request it from the person or agency that has it. If the holder of the evidence declines to give it to us, asks for a fee to provide it, or VA otherwise cannot get the evidence, we will notify you. It is your responsibility to make sure we receive all requested records that are not in the possession of a Federal department or agency." [Emphasis as in original]. Finally, the Board notes that the VCAA letter specifically requested: "If there is any other evidence or information that you think will support your claim, please let us know. If you have any evidence in your possession that pertains to your claim, please send it to us." This complies with the "give us everything you've got" provision formerly contained in 38 C.F.R. § 3.159(b) in that it informed the Veteran that he could submit or identify evidence other than what was specifically requested by the RO. [The Board observes that 38 C.F.R. § 3.159 was recently revised, effective as of May 30, 2008. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). The final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request the claimant to provide any evidence in the claimant's possession that pertains to the claim.] In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran was provided with Dingess notice in the August 2007 letter, which detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The Veteran was also advised in the letter as to examples of evidence that would be pertinent to a disability rating, such as on-going treatment records, recent Social Security determinations, and statements from employers as to job performance and time lost due to service-connected disabilities. With respect to effective date, the VCAA letter instructed the Veteran that two factors were relevant in determining effective dates: when the claim was received and when the evidence "shows a level of disability that supports a certain rating under the rating schedule." The Veteran was also advised in the letter as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the Veteran may not have submitted, and reports of treatment while attending training in the Guard or Reserve. Accordingly, the Veteran received proper notice as to disability rating and effective date pursuant to the Court's Dingess determination. As there is no indication that there exists any evidence which could be obtained to affect the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). In the instant case, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims and there is no reasonable possibility that further assistance would aid in substantiating them. The evidence of record includes the Veteran's service treatment records, the Veteran's service personnel records, and the Veteran's statements, as well as, VA and private treatment records. The Veteran was not afforded a VA examination to address either his prostate cancer or leukemia claims. The Board is aware of the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), which held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease, manifested in accordance with presumptive service connection regulations, occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. However, a medical examination as to the Veteran's claimed prostate cancer and leukemia is unnecessary in this case, because there is no objective evidence of an in-service disease or injury, to include exposure to asbestos. Under such circumstances, an examination is not required. The facts of this case are different than the facts in Charles v. Principi, 16 Vet. App. 370 (2002), in which the Court held that VA erred in failing to obtain a medical nexus opinion where evidence showed acoustic trauma in service and a current diagnosis of tinnitus. Significantly, in this case the evidence does not support a finding that the Veteran incurred a disease or injury as to the claimed prostate cancer and leukemia during his military service. In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of these issues has been consistent with said provisions. The record indicates that the Veteran is receiving Social Security (SSA) disability benefits. However, neither the Veteran nor his representative have contended that the Veteran was awarded SSA benefits due to prostate cancer and/or leukemia, or any incidence of the claimed asbestos exposure. Nor have the Veteran or his representative suggested that a remand for SSA records would be appropriate as to either claim. The Board is of course aware that VA's duty to assist includes obtaining SSA records when appropriate. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992) [VA's duty to assist includes obtaining records from SSA and giving appropriate consideration and weight in determining whether to award or deny VA disability compensation benefits]. However, VA's duty to obtain records only applies to records that are "relevant" to the claim. See 38 U.S.C.A. § 5103A(b)(1) (West 200); see also Counts v. Brown, 6 Vet. App. 473, 476 (1994). There is no indication that the SSA records would be relevant to the outcome of the prostate cancer and leukemia claims. That is, there is no suggestion that the SSA records would corroborate any in-service exposure to asbestos. Under such circumstances, the Veteran, who is represented by an experienced representative, would have no doubt have alerted VA if the SSA records corroborate an in-service disease or injury as to the claimed prostate cancer and leukemia, since such would clearly alter the posture of the case. In short, remanding the prostate cancer and leukemia claims to obtain SSA records would serve no useful purpose. See Brock v. Brown, 10 Vet. App. 155, 161-62 (1997) [VA is not obligated to obtain records which are not pertinent to the issue on appeal]. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claims. See 38 C.F.R. § 3.103 (2009). He has retained the services of a representative and, as indicated above, he testified at a videoconference hearing before the undersigned. Accordingly, the Board will proceed to a decision on the merits. Relevant law and regulations Service connection - generally In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including prostate cancer and leukemia, when such are manifested to a compensable degree within the initial post-service year. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2009). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Continuity of symptomatology In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2009). Asbestos exposure There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos- related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus, persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Analysis The Veteran seeks entitlement to service connection for prostate cancer and leukemia, which he contends are due to his military service, to include in-service asbestos exposure. See the Veteran's notice of disagreement (NOD) dated May 2008. As indicated above, for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus between the first two elements. See Hickson, supra. With respect to Hickson element (1), current disability, the medical evidence demonstrates that the Veteran is diagnosed with prostate cancer and leukemia. See, e.g., the VA treatment record dated May 2004. Accordingly, Hickson element (1) is satisfied as to both claims. As to Hickson element (2), the Board will separately address in-service disease and in-service injury. Concerning in-service disease, the Board notes that the Veteran has not contended, nor is there medical evidence to suggest, that he developed prostate cancer or leukemia during his military service. Critically, the Veteran's service treatment records, including his December 1957 separation examination, are pertinently absent any diagnosis of or treatment for prostate cancer or leukemia. Further, the record does not reflect medical evidence showing diagnoses of prostate cancer or leukemia during the one-year presumptive period after separation from service. See 38 C.F.R. §§ 3.307, 3.309(a) (2009). Indeed, the medical evidence of record demonstrates that the Veteran was diagnosed with prostate cancer in 2002 and leukemia in April 2003, decades after service. See a VA treatment record dated May 2004. Hickson element (2) is not satisfied with respect to disease. The Veteran in essence contends that Hickson element (2) is satisfied via an in-service injury, specifically exposure to asbestos. In particular, the Veteran asserts that he was exposed to asbestos while stationed aboard the U.S.S. YORKTOWN (CV-10). See the Veteran's NOD dated May 2008. As noted in the law and regulations section above, asbestos exposure is a fact to be determined from the evidence. See Dyment, supra. The Veteran's service personnel records demonstrate that he was stationed aboard the U.S.S. YORKTOWN (CV-10), which was a World War II-era aircraft carrier. However, there is no presumption of asbestos exposure due to mere service aboard naval vessels. See Dyment, 13 Vet. App. at 145. Crucially, the Veteran's service personnel records indicate that his primary military occupational specialty was airman. This is not consistent with significant asbestos exposure. Furthermore, the Veteran's service treatment records do not refer to any asbestos exposure. The Veteran has presented no evidence, other than his own statements, that he was exposed to asbestos. The Veteran himself has not been particularly clear as to how he came to be exposed to asbestos. In essence, he contends that his mere presence aboard ship constituted exposure to asbestos. As discussed above, no presumption of asbestos exposure is created thereby. In addition, there is no post-service medical evidence, such as x-rays or other laboratory findings, to indicate that the Veteran was ever exposed to asbestos. Diseases that have been associated with asbestos exposure, see M21-1, Part VI, para 7.21(a), have not been shown. While not conclusive evidence, this adds weight to the finding that the Veteran was not exposed to asbestos in service. In short, the contention that the Veteran was exposed to asbestos in service amounts to mere speculation on his part and is not substantiated by any objective evidence in the file. The Board accordingly finds that the Veteran was not exposed to asbestos in service. The Board therefore concludes that Hickson element (2), in-service disease or injury, has not been met as to either claim. Thus, the claims fail on that basis alone. For the sake of completeness, the Board will address the remaining Hickson element, medical nexus. See Luallen v. Brown, 8 Vet. App. 92, 95-6 (1995), citing Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) [the Board has the fundamental authority to decide a claim in the alternative]. The Board observes that in the absence of an in-service incurrence or aggravation of disease or injury, it follows that Hickson element (3), medical nexus, is necessarily lacking as well. In fact, the record is pertinently absent any competent evidence of medical nexus between the Veteran's currently diagnosed prostate cancer and/or leukemia and his military service. To the extent that the Veteran contends that a medical relationship exists between his currently diagnosed prostate cancer and leukemia and his military service, his opinion is entitled to no weight of probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 495-95 (1992); see also 38 C.F.R. § 3.159(a)(1) (2009) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The Veteran's own statements offered in support of his claims are not competent medical evidence and do not serve to establish medical nexus. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claims, but he has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002) [it is a claimant's responsibility to support a claim for VA benefits]. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), discussed above, relating to chronicity and continuity of symptomatology. However, supporting medical evidence of prostate cancer and leukemia since service is required to sustain service connection claims based upon continuity of symptomatology. See Voerth v. West, 13 Vet. App. 117, 120-121 (1999) [there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent]. Such evidence is lacking in this case. Crucially, as indicated above, the competent medical evidence of record does not demonstrate that the Veteran was diagnosed with prostate cancer until 2002 and leukemia until 2003, over forty-five years after his December 1957 discharge from military service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability]; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) [affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition]. Thus, continuity of symptomatology has not been demonstrated. Accordingly, Hickson element (3) is also not satisfied and the Veteran's claims also fail on this basis. In conclusion, for the reasons and bases expressed above, the Board finds that a preponderance of the evidence is against the Veteran's claims of entitlement to service connection prostate cancer and leukemia. The benefits sought on appeal are accordingly denied. ORDER Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for leukemia is denied. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that the Veteran's claims of entitlement to service connection for residuals of chemical burns to the bilateral hands, entitlement to a compensable disability rating for chemical burns of the bilateral feet, and entitlement to TDIU must be remanded for further evidentiary and procedural development. 3. Entitlement to service connection for residuals of chemical burns to the bilateral hands. As to Hickson element (1), current disability, the January 2008 VA examination report indicate that the Veteran had multiple, generalized, well-healed scars of the bilateral hands "with extension to the bilateral posterior lower arms." The scars of the hands were noted to be "approximately 0.5 cm. x 0.5cm, or smaller, well-demarcated borders." Although the precise nature of the scars ha snot been established for purposes of this remand Hickson element (1) is satisfied. Concerning Hickson element (2), in-service disease or injury, the Veteran's service treatment records do not document any complaint of or treatment for disease or injury of either hand. However, service treatment records do show that the Veteran was hospitalized in August 1957 with second degree chemical burns to his feet, which he sustained when a caustic cleaning compound was splashed on him during the performance of his duties. As is noted elsewhere in this decision, service connection has been granted for residuals of chemical burns of the feet. Accordingly, Hickson element (2) is arguably satisfied, for the limited purposes of this remand. With respect to Hickson element (3), medical nexus, none of the medical records currently associated with the Veteran's VA claims folder offer an opinion as to a possible causal relationship between the Veteran's current scars of the bilateral hands and the in-service accident through which he sustained chemical burns to the feet. In Charles v. Principi, 16 Vet. App. 370, 374-75 (2002), the Court held that where there is evidence of record satisfying the first two requirements for service connection but no competent medical evidence addressing the third requirement (medical nexus), VA must obtain a medical nexus opinion. The Board finds that a VA nexus opinion is therefore necessary to decide the claim. See also 38 C.F.R. § 3.159(c)(4) (2009) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. 4. Entitlement to an increased (compensable) disability rating for service-connected residuals of chemical burns to the bilateral feet. The Veteran was last afforded a VA examination as to his service-connected residuals of chemical burns to the bilateral feet in January 2008. The Veteran has since contended that the symptomatology associated with his service-connected residuals of chemical burns to the bilateral feet has significantly worsened. Accordingly, the Board finds that a contemporaneous VA medical examination is warranted. See Littke v. Derwinski, 1 Vet. App. 90, 92 (1990) [VA's duty to assist includes the conduct of a contemporaneous medical examination, in particular where it is contended that a service-connected disability has become worse]; see also 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]. The Board additionally observes that the Veteran has stated that he experiences flare-ups of symptomatology associated with the scarring on his bilateral feet which was not present at the time of the January 2008 VA examination. In such cases, VA is required to offer an examination while the Veteran's skin problems are active. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994) [where fluctuating conditions escape detection on examination, VA must conduct an examination during the active stage of the disease]. However, the Veteran's flare-ups appear to be random, unaffected by season, weather, etc. Given the fluctuating nature of the Veteran's skin problems of the bilateral feet, an examination during a flare up may not be feasible in this case. See Voerth v. West, 13 Vet. App. 117 (1999). In Voerth, the Court distinguished Ardison as follows: " . . . in Ardison the appellant's worsened condition would last weeks or months while here the appellant's worsened condition would last only a day or two." See Voerth, 13 Vet. App. at 122- 23. The Veteran is advised to seek medical attention during a period of flare-up so that the record contains a description of the symptomatology associated with the service-connected residuals of chemical burns to the bilateral feet by a health care provider. The record indicates that the Veteran receives SSA disability benefits. His SSA records have not been obtained. Because SSA records may document his foot disability, an effort should be made to obtain such records. See Murincsak, supra. 5. Entitlement to TDIU. As was indicated in the Introduction above, in February 2008 rating decision denied the Veteran's claim of entitlement to TDIU. The Veteran has since expressed disagreement with the RO's denial of TDIU. See, e.g., the February 2009 Board hearing transcript. In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that where a NOD is filed but a statement of the case (SOC) has not been issued, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. Thus, the agency of original jurisdiction must issue a SOC as to the Veteran's claim of entitlement to TDIU. Accordingly, the case is REMANDED for the following actions: 1. VBA should attempt to contact the Veteran and request that he identify any relevant recent medical examination and treatment records pertaining to his claims. All efforts to contact the Veteran should be memorialized. VBA should take appropriate steps to secure any medical treatment records so identified and associate them with the Veteran's VA claims folder. 2. VBA should contact SSA for the purpose of obtaining any records from that agency that pertain to the Veteran's claims for disability benefits. Any records so obtained should be associated with the Veteran's VA claims folder. Any notice from SSA that these records are not available should be noted in the Veteran's claims folder. 3. VBA should arrange for the Veteran to be examined by a physician, with appropriate expertise, for the purpose of addressing the current severity of the Veteran's service-connected residuals of chemical burns to the bilateral feet. The VA examiner should also render an opinion as to whether scarring of the Veteran's hands is as likely as not (i.e., a 50/50 probability) due to the in-service chemical spill that caused the scarring of his bilateral feet. A report of the examination should be prepared and associated with the Veteran's VA claims folder. 4. After undertaking any additional development which it deems to be necessary, and if warranted by the evidentiary posture of the case, VBA should readjudicate the Veteran's claims of entitlement to service connection for chemical burns of the bilateral hands; and entitlement to a compensable disability rating for service-connected chemical burns of the bilateral feet. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a SSOC and given an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. 5. VBA should issue a SOC to the Veteran addressing the issue of entitlement to TDIU. The SOC should include all relevant law and regulations pertaining to the claim. The Veteran must be advised of the time limit in which he may file a substantive appeal. The issue should then be returned to the Board for further appellate consideration, only if an appeal is properly perfected. 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. 2009). ______________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs