Citation Nr: 1300192 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 07-06 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a generalized skin rash, to include as due to exposure to herbicides, including Agent Orange. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to September 1968. He had verified service in Vietnam from January 1967 to June 1967 and from November 1967 to July 1968. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a July 2005 rating decision of the VA Regional Office in Oakland, California, which denied service connection for xerotic eczema, claimed as a full body rash, to include as due to Agent Orange/herbicide exposure. In November 2010, the Board remanded the claim for service connection for a skin disorder to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. For the reasons discussed below, the appeal is again REMANDED to the RO via the AMC in Washington, DC. VA will notify the appellant if further action is required. REMAND The Court has held that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Court in Stegall has indicated, moreover, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. at 271. Thus, while the Board regrets the additional delay in this case, for the reasons discussed below, the case must be returned to the AMC/RO. In November 2010 the Board remanded the claim in part to request and associate with the claims folder private treatment records from Carson Dermatology dating from 1968 to the present using either the medical release already of record or after securing proper authorization. In a November 2010 letter, the AMC asked the Veteran to complete and return the attached VA Form 21-4142, Authorization and Consent to Release Information, to allow the AMC to obtain treatment records dated from 1968 to the present from Carson Dermatology. The Veteran promptly completed and signed the form, which was received by the AMC in December 2010. After reviewing the claims file, including the electronic, Virtual VA claims file, it appears that the AMC took no further action to obtain additional private treatment records from Carson Dermatology. One year after the submitted the completed form, in a December 2011 letter, the AMC notified the Veteran that the Authorization and Consent to Release Information had expired and asked him to provide the address for Carson Dermatology or to obtain and send the requested information himself. The Veteran did not respond to the second request regarding these records, and the AMC/RO continued to deny the claim (as reflected by a January 2012 supplemental statement of the case) following a November 2010 VA skin disease examination. The AMC/RO should again request the private treatment records from Carson Dermatology dated from 1968 to the present. The Board also remanded the claim to schedule the Veteran for a VA dermatology examination to identify the particular skin pathology and to obtain a medical opinion regarding the etiology of any skin pathology. Specifically, the examiner was asked to identify all skin pathology, to include whether the Veteran had pathology consistent with chloracne or other acneform disease consistent with chloracne and/or porphyria cutanea tarda. If the Veteran did have such pathology, the examiner was asked to opine as to whether it is likely, as likely as not, or unlikely related to any incident of service, to include exposure to Agent Orange/herbicides. A review of the November 2010 VA skin disease examination report reveals that the examiner did not fully address the questions posed by the Board in the remand directives. Following a physical examination, the diagnosis was dermatitis, and the examiner opined that it was less likely as not that the dermatitis was caused by or a result of exposure to Agent Orange because the Veteran was not treated for skin lesions in Vietnam or immediately upon return from Vietnam. The examiner further noted that etiology had not been established despite extensive testing privately, according to the Veteran, and that the examiner did not have the private treatment records. Unfortunately, the examiner did not specifically indicate whether the Veteran had pathology consistent with chloracne or other acneform disease consistent with chloracne and/or porphyria cutanea tarda. Moreover, the examiner did not opine as to whether the Veteran's current dermatitis was otherwise medically related to his military service. Accordingly, the AMC/RO should arrange for the Veteran to be scheduled for an additional VA skin disease examination to obtain the medical information needed to decide the claim. The Board notes that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda are presumed to be associated with exposure to herbicides if they become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service (or in this case, July 1968). See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. Direct service connection for other skin diseases may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Finally, the Board notes that since submitting his claim for service connection for a skin disorder in July 2005, the Veteran has asserted that his claimed disorder is due to exposure to herbicides during his two tours in Vietnam. In correspondence received in November 2012, however, the Veteran's representative asserted that the Veteran's claimed skin disorder was secondary to his service-connected diabetes mellitus. The representative presented Internet research regarding a link found between diabetes and eczema and regarding skin complications of diabetes. On remand, the AMC/RO should provide the Veteran with VCAA notice describing the information and evidence required to establish entitlement to service connection on a secondary basis. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2012), are fully complied with and satisfied, including notification of what the evidence must show to substantiate the claim for service connection for a skin rash on a secondary basis. 2. The AMC/RO should contact the Veteran and request that he identify the names, addresses and approximate dates of treatment for all health care providers, VA and private, who may possess additional records pertinent to his claim for a skin rash. The AMC/RO should attempt to obtain and associate with the claims folder any medical records identified by the Veteran that are not already of record. In particular, the Veteran should be advised to submit the records from Carson Dermatology dated from 1968 to the present, or authorize the AMC/RO to obtain them. 3. Upon completion of the above, the AMC/RO should arrange for the Veteran to be scheduled for a VA skin disease examination by a dermatologist. The claims folder must be reviewed by the examiner as part of the examination. All indicated studies, tests and evaluations deemed necessary by the examiner should be performed. The results of such must be included in the examination report. The examiner is advised that the Veteran is claiming that his claimed skin rash is due to exposure to herbicides, including Agent Orange, during his two tours in Vietnam, or that his skin rash is secondary to his service-connected diabetes mellitus disability. Following a review of the claims file and physical examination, the dermatologist should respond to the following questions: a) Indicate whether the Veteran currently has chloracne or other acneform disease consistent with chloracne, or porphyria cutanea tarda, and if so, indicate whether either was manifested before July 1969. b) Identify any other skin disorders found on examination. For each such disorder, indicate whether it is at least as likely as not (a 50 percent or greater probability) that the disorder began in service or is otherwise medically related to military service. c) If a skin disorder found on examination did not begin in service or is otherwise not medically related to military service, indicate whether any diagnosed skin disorder is at least as likely as not (a 50 percent or greater probability) caused by the Veteran's service-connected diabetes. If not caused by diabetes, then the examiner should opine whether any diagnosed skin disorder is permanently worsened beyond normal progression (aggravated) by the service-connected diabetes. If the examiner finds any skin disorder aggravated by diabetes, he/she should attempt to quantify the degree of aggravation. A complete rationale for all conclusions must be included in the report provided. (Any medical record reviewed and relied on by the examiner must be included in the claims folder). If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AMC/RO should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion with respect to any diagnosed skin disorder can be obtained). 4. The AMC/RO must ensure that the medical examination report and opinion complies with this remand and the questions presented in the request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 5. After undertaking any other development deemed appropriate the AMC/RO should re-adjudicate the issue on appeal. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an 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. 2012). _________________________________________________ Thomas H. O'Shay Acting 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) (2012).