Citation Nr: 1301334 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-36 107A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a skin condition, to include dermatitis and to include as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1968 to October 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2009 of a Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board notes that in July 1999, the Veteran filed a claim for service connection for a skin condition, to include as due to Agent Orange exposure. The RO denied the claim in a rating decision in March 2000 and notified the Veteran of the decision and his appellate rights by a letter also dated in March 2000. The Veteran did not file a notice of disagreement to the March 2000 rating decision as to the issue of service connection for a skin condition. The Veteran then filed a claim of service connection for dermatitis, to include as due to Agent Orange in June 2008, which the RO treated as a separate claim of service connection for dermatitis and, as noted above, denied the claim in the February 2009 rating decision on appeal. The Veteran filed both claims as a lay person, and the evidence reveals other diagnoses, such as psoriasis, for the Veteran's current skin disability. Multiple medical diagnoses that differ from the claimed condition do not necessarily represent a separate claim, and what constitutes a claim cannot be limited by a lay Veteran's assertion of his condition in his application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). The Board has therefore stated the issue as set forth on the first page of this decision. The Board further notes that, at first blush, it may appear that the issue before the Board should then be whether the Veteran has presented new and material evidence to reopen a claim of service connection for a skin condition as the Veteran did not appeal the March 2000 rating decision. In cases where service connection for a disability has been denied in a final rating decision, a subsequent claim of service connection for the same disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. The Board has jurisdictional responsibility to consider whether it is proper for a claim to be reopened, and what the RO determined in this regard is irrelevant. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Thus, normally, the Board would be determining first whether the Veteran had submitted new and material evidence on the issue, and if it reopened the claim, proceed to the merits of the claim. In this instance, however, the Board finds that the RO received new evidence within a year of the March 2000 rating decision, which denied the claim because no current skin disorder was shown. Based upon notations noted on the medical evidence, in August 2000, the RO received VMAC records indicating the Veteran was suffering from a skin disorder. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If new and material evidence is received within one year after the date of mailing of an RO decision, it may be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period that prevents an initial determination from becoming final. King v. Shinseki, 23 Vet. App. 464, 466-67 (2010). The new evidence was not considered by the RO in an adjudication concerning a claim of service connection for a skin disability until the February 2009 rating decision. Therefore, the claim is before the Board as an original claim for service connection. 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 The Board finds that the reconsidered claim must be remanded for additional development prior to appellate adjudication. As noted, the Veteran seeks service connection for a skin disorder, which he states he has suffered ever since he returned from Vietnam. The Veteran's VA treatment records reflect that he has been diagnosed with a skin disorder at least since March 2000 and possibly since May 1999. The Veteran's service treatment records and his DD-214 reflect that he served in Vietnam during the Vietnam War era. He is thus presumed to have been exposed to Agent Orange. It is unclear to the Board whether the Veteran has identified and VA has obtained all medical treatment records For instance, the file contains treatment records for the period from January 1984 to June 1985, then from November 1991 to December 1993, and finally from August 2000 to February 2003, as well as several VA examinations regarding various medical disabilities. The records before August 2000 may have also been limited to treatment of disabilities other than a skin disorder such as for the Veteran's headache disability and thus treatment for any skin problems during these periods may exist, but have not been associated with the file. In addition, although the August 2000 to February 2003 records appear to be complete, they reference treatment by an unidentified private physician in May 1999. VA medical records, even if not in the claims file, are nevertheless considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C.A. § 5103A (b) (West 2002); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). Therefore, a complete set of VAMC records from separation from service to the present should be requested to ensure that the Board has all relevant VAMC records. In addition, if any private medical care providers who treated the Veteran for a skin disorder are identified, their records may help the Veteran prove his claim and should be obtained by VA. On remand, the RO/AMC should attempt to locate and obtain any and all identified private medical records and complete medical records from the Atlanta and Decatur, Georgia VAMC, and any other VAMC clinics where the Veteran has sought treatment. VA must provide an examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). In the record before the Board, there have been several diagnoses of skin disorders, including a fungal infection, skin infection, psoriasis, jungle rot, subacute spongiotic dermatitis, and dyshydrotic eczematous process and therefore it is unclear as to the exact nature of the Veteran's skin disability. In addition, as the Veteran served in Vietnam, and as chloracne is presumed to be caused by exposure to Agent Orange and other herbicides, the file does not contain any medical opinions either establishing the diagnosis of or ruling out chloracne. Even if a presumptive disability due to Agent Orange exposure is not present, see 38 C.F.R. §§ 3.307, 3.309, the Veteran is not precluded from establishing service connection by proof of direct causation. see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). There is no medical opinion determining whether the Veteran has a skin disorder other than chloracne but due to Agent Orange or other herbicide exposure. Furthermore, the Veteran has stated he has had symptoms of a skin disorder since he has returned from Vietnam and lay evidence concerning symptoms, if credible, is competent, regardless of the lack of contemporaneous medical evidence, Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In sum, the Board has therefore determined that VA should provide the Veteran with a VA examination as there is an indication the Veteran has a current disability claimed as related to service but insufficient competent medical evidence to make a decision on the claim. The examination should consider all of the evidence, including the Veteran's lay evidence, and determine what are the Veteran's current skin disorders and whether any of them had their onset in service or are related to service, including as due to Agent Orange exposure. See 38 C.F.R. § 3.159(c)(4) (2011); see also McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain all treatment records for the Veteran from the VA Medical Centers in Atlanta, Georgia, and Decatur, Georgia, and any other VA medical center identified by the Veteran and all associated outpatient clinics from separation from service to the present. All attempts to obtain these records, not already of record, should be documented in the file. 2. Contact the Veteran and request him to submit or authorize VA to obtain medical records from any private medical care provider from whom he has received treatment for his skin disorder since his discharge from service. After securing the necessary authorizations for release of this information, the RO should seek to obtain copies of all treatment records referred to by the Veteran, not already of record. All efforts must be documented and associated with the file. Any negative replies must be in writing and the Veteran notified in accordance with 38 C.F.R. § 3.159. 3. Once the record development is completed, provide the Veteran a VA examination. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. All pertinent symptomatology and findings must be reported in detail. A complete rationale for all opinions must be provided. The examiner is asked to determine whether the Veteran has a current skin disability, and then, for any diagnosed disability, is requested to offer an opinion as to whether it is at least as likely as not (probability of 50 percent or more), that the Veteran's skin disability began in service or is causally and etiologically related to service, considering the evidence, accepted medical principles pertaining to the history, manifestation, clinical course, and the character of the disability found. The examiner is asked to comment on whether the Veteran has chloracne or other acneform disease consistent with chloracne, or even if any diagnosis is not chloracne or consistent with chloracne, whether the diagnosis is related to Agent Orange/herbicide exposure. If the examiner determines that a skin diagnosis is related to service, the examiner is also asked to address the functional impact the disability has upon the Veteran. The examiner is advised that lay evidence of continuity of symptoms after service, if credible, is competent evidence, regardless of the lack of contemporaneous medical evidence. Nevertheless there still must be a factual showing that the symptom is derived from an injury, disease, or event in service. If, however, after a review of the record, an opinion on causation is not possible without resort to speculation, the VA examiner is asked to clarify whether an opinion on causation is beyond what may be reasonably concluded based on the evidence of record, considering current medical knowledge. 4. After the development requested is completed, adjudicate the claim for service connection for a skin condition, to include dermatitis. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ 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) (2012).