Citation Nr: 1237188 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 12-11 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a skin disability, to include skin breaking on the hands and feet, cracking of the nails on the hands and feet and severe itching of the feet. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from March 1971 until August 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from February 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The appeal initially included a claim for an increased evaluation for posttraumatic stress disorder (PTSD). A review of the record reflects that a Statement of the Case (SOC) addressing both the skin disability and PTSD was sent to the Veteran in March 2012. While the Veteran filed a Substantive Appeal (VA Form 9), he clearly checked box 9B indicating he read the SOC and was only appealing the issue of service connection for skin breaking on the hands and feet, cracking of nails on hands and feet and severe itching of feet. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.202 (indicating that when a SOC addresses several issues, the Substantive Appeal must either indicate that the appeal is being perfected as to all of those issues or must specifically identify the issues appealed. This provision also notes that the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed); see also Godfrey v. Brown, 7 Vet. App. 398, 409 (1995) (noting that 38 U.S.C.A. § 7105 "establishes very specific, sequential, procedural steps that must be carried out by a claimant and the RO or other [AOJ (such as a VA health-care facility)]...before a claimant may secure 'appellate review' by the BVA"). In the present case, even providing the most liberal review of the submissions of the Veteran and his representative, the Board is unable to find any evidence that indicated the Veteran wished to continue his appeal of the increased evaluation for PTSD. As noted above, he expressly limited the appeal by checking box 9B and furthermore, the written argument on the Substantive Appeal only addressed the skin disability. See Evans v. Shinseki, 25 Vet. App. 7, 15-17 (2011) (finding that VA must seek clarification from the appellant if there is a "perceived concern about how the appellant had filled out the Form 9" that leaves a question as to whether the appellant wished to continue to appeal an issue). No subsequent statements from the Veteran or his representative have been received which include any argument concerning PTSD or otherwise indicate a desire to proceed with the appeal. Furthermore, although the RO certified the issue of PTSD, there has been no correspondence from VA which would indicate to the Veteran or his representative that the issue was still on appeal. 38 C.F.R. § 19.35 (Providing that the RO's certification of an appeal is for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction of an issue); see e.g. Percy v. Shinseki, 23Vet. App. 37, 46 (2009) (holding that VA waived any objections as to the content of the appeal by treating the issue as on appeal for five years). In light of the above, as the Veteran has not submitted a timely Substantive Appeal, there is no evidence which creates ambiguity as to the intended scope of the Substantive Appeal and there is no evidence that the Veteran or VA continued to treat the issue of PTSD as being on appeal, the issue is not presently before the Board. 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 A preliminary review of the record reflects that further development is necessary. Specifically, the duty to assist has not been satisfied. In determining whether the duty to assist requires that a VA medical examination or medical opinion be obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Id. In the present case, the Veteran has provided lay evidence of persistent symptoms of a skin condition, including skin breaking on the hands and feet, cracking of the nails on the hands and feet and severe itching of the feet since his service. He alleges his condition is a result of exposure to Agent Orange during service and also noted that it may have been caused by his feet being constantly wet during monsoon season. A June 2011 request for information from the National Personnel Records Center confirmed the Veteran served in the Republic of Vietnam but was not able to confirm the exact dates. A December 2006 letter from the Department of the Air Force indicated the office of Assignment verified the Veteran served in DaNang from September 1971 until June 1972. As the Veteran served in Vietnam his exposure to herbicides is presumed. 38 U.S.C.A. § 1116 (f); 38 C.F.R. § 3.307(a)(6). As the record contains evidence that the Veteran has had persistent or recurrent symptoms of a skin condition, evidence of an event in service and evidence suggesting continuity of the symptoms since service, the Board is of the opinion that the Veteran has met the criteria of 38 C.F.R. § 3.159 and a VA examination should be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The Veteran shall be afforded an appropriate VA examination to ascertain the nature and etiology of any skin disability that may be present. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, and following this review and the examination render an opinion as to the following: Whether any currently diagnosed skin disability is at least as likely as not (at least a 50 percent probability) causally or etiologically related to any incident of the Veteran's active service, including exposure to herbicides and the Veteran's footwear being wet during monsoon season. In providing this opinion, the examiner shall discuss the Veteran's subjective history of symptoms of skin breaking on the hands and feet, cracking of the nails on the hands and feet and severe itching of the feet since service. A clear rationale for all opinions is required, to include a discussion of the facts and medical principles involved. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review in connection with the examination. 2. The RO should take such additional development action as it deems proper with respect to the claim, and follow any applicable regulations and directives implementing the provisions of the VCAA as to its notice and development. 3. When the development requested has been completed, the case should again be reviewed by the RO/AMC and the claims remaining on appeal readjudicated. If the benefits sought are not granted, the Veteran and her representative should be furnished a SSOC, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ JOHN Z. JONES 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).