Citation Nr: 1226294 Decision Date: 07/30/12 Archive Date: 08/03/12 DOCKET NO. 05-17 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a skin disability, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to April 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in August 2003 by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board remanded this matter in November 2009 and January 2012 to schedule the Veteran for a VA examination. The RO continued the denial of the claim as reflected in the July 2012 supplemental statement of the case (SSOC) and returned this matter to the Board for further appellate consideration. 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 Unfortunately, the Board finds that another remand is necessary for further development prior to adjudicating the issue on appeal. The Veteran underwent a VA examination in February 2012. In a June 2012 addendum, the VA examiner noted that service treatment records show the Veteran was treated for a fungal infection in 1970 and it was not present at the separation examination in 1971. She determined that chronicity has not been established and the Veteran did not have a fungal infection at the February 2012 VA examination. The Board observes that a VA treatment record dated in March 2003 documents that the Veteran has a recurrent fungal skin infection that is treated with Loprox. The examiner did not discuss this treatment record in her opinion. The Board finds that this information is relevant to the issue on appeal as the recurrent fungal skin infection diagnosed in 2003 may be related to the fungal infection diagnosed in service. Furthermore, with respect to the Veteran's assertion that his skin disability is caused by exposure to herbicides while stationed in Vietnam, the VA examiner noted that actinic keratosis, squamous cell carcinoma, basal cell carcinoma, rosacea and fungus are not on the list of skin conditions associated with Agent Orange exposure per Public Health VA and she included a website link. The list she is referring to is the list of skin disorders presumed by VA to be associated with Agent Orange. Thus, the VA examiner did not provide any opinion on whether the Veteran's skin disabilities are associated to Agent Orange on a nonpresumptive direct-incurrence basis. The United States Court of Appeals for Veterans Claims has held that a medical nexus opinion finding a condition is not related to service because the condition is not entitled to presumptive service connection, without clearly considering direct service connection, is inadequate on its face. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Based on the foregoing, the Board finds that a remand is necessary for clarification of the VA examiner's opinion or if the examiner is not available a VA opinion from an appropriate physician. Accordingly, the case is REMANDED for the following action: 1. Provide the claims folder to the VA examiner who provided the VA examination in February 2012 and addendum in June 2012 for clarification. The examiner should clearly identify all current skin disability/ies (to include, but not limited to, actinic keratosis, squamous cell carcinoma, basal cell carcinoma, rosacea and fungus, diagnosed during the pendency of this claim). With respect to each such diagnosed disability, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service, to include on a nonpresumptive direct-incurrence basis due to any in-service herbicide exposure, in-service sun exposure and/or in-service treatment for a skin condition. With respect to herbicide exposure, the Board is requesting that the examiner consider whether it is as likely as not that the Veteran's herbicide exposure directly caused any of the Veteran's current skin disabilities regardless of the fact that it is not on the list in VA regulations of disabilities presumed to be due to exposure to Agent Orange. In rendering the requested opinion, the examiner should specifically consider the in-service and post-service medical records, as well as the Veteran's lay assertions. The examiner is asked to provide an explanation for all conclusions reached based on medical principles and the medical and lay evidence of record. Please review, consider and discuss as part of the rationale the VA treatment record dated in March 2003 that diagnosed the Veteran with recurrent fungal skin infection and a June 2004 letter from a private dermatologist that states that most of the Veteran's skin damage came from the time he spent in service. 2. If the February 2012 VA examiner is unavailable, then obtain a VA opinion from an appropriate physician, and if deemed necessary provide the Veteran with a VA examination. The claims file, including a copy of this REMAND, must be made available to the physician for review, and the physician should indicate that the claims folder was reviewed in connection with the examination. After a review of all pertinent records associated with the claims file (and conducting a physical examination of the Veteran if appropriate), the physician should clearly identify all current skin disability/ies (to include, but not limited to, actinic keratosis, squamous cell carcinoma, basal cell carcinoma, rosacea and fungus, diagnosed during the pendency of this claim). With respect to each such diagnosed disability, the physician should offer an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service, to include on a nonpresumptive direct-incurrence basis due to any in-service herbicide exposure, in-service sun exposure and/or in-service treatment for a skin condition. With respect to herbicide exposure, the Board is requesting that the physician consider whether it is as likely as not that the Veteran's herbicide exposure directly caused any of the Veteran's current skin disabilities regardless of the fact that it is not on the list in VA regulations of disabilities presumed to be due to exposure to Agent Orange. In rendering the requested opinion, the physician should specifically consider the in-service and post-service medical records, as well as the Veteran's lay assertions and medical literature. The physician is asked to provide a clear rationale and explanation for all conclusions reached based on medical principles and the medical and lay evidence of record. Please review, consider and discuss as part of the rationale the VA treatment record dated in March 2003 that diagnosed the Veteran with recurrent fungal skin infection and a June 2004 letter from a private dermatologist that most of the Veteran's skin damage came from the time he spent in service. 3. Upon completion of the foregoing, readjudicate the Veteran's claim for service connection for a skin disability based on a review of the entire evidentiary record. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 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. 2011). _________________________________________________ U. R. POWELL 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) (2011).