Citation Nr: 1301790 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 07-02 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a cardiovascular disability, to include as due to herbicide exposure. 2. Entitlement to service connection for a skin disability, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1964 to February 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2006 and January 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In April 2006, the RO, in relevant part, denied the Veteran's claim of entitlement to service connection for a skin condition, to include as secondary to herbicide exposure. The RO in St. Louis, Missouri issued an additional rating decision in October 2008. In September 2009, the Veteran testified at a Travel Board hearing before the undersigned as to the claimed skin condition on appeal. A copy of this hearing transcript is of record. In March 2010, the Board remanded the claim of entitlement to service connection for a skin condition, to include as due to herbicide exposure, to obtain an additional VA examination and etiological opinion pertaining to the claimed disability. In a January 2011 rating decision, the RO denied the Veteran's claim of entitlement to service connection for ischemic heart disease. The RO in Huntington, West Virginia issued an additional rating decision in September 2011, which confirmed and continued the previous denial. Additional evidence relevant to the claims on appeal has been associated with the electronic and paper claims files since the issuance of the March 2011 statement of the case (ischemic heart disease) and the April 2011 supplemental statement of the case (skin condition). In correspondence dated in September 2012, however, the Veteran's representative waived initial RO consideration on all evidence obtained and associated with the electronic and paper claims files since the most recent statement and supplemental statement of the case. This evidence will be considered by the Board in adjudicating this appeal. See 38 C.F.R. § 20.1304 (2012). The issue of entitlement to service connection for a skin disability, to include a due to herbicide exposure, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era. 2. The evidence of record favors a finding that the Veteran has a current diagnosis of non-obstructive coronary artery disease. CONCLUSION OF LAW The Veteran's non-obstructive coronary artery disease is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all the evidence in the Veteran's claims file, his Virtual VA file, and his contentions. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 The Board considered the regulations pertaining to the VA's statutory duty to assist the Veteran with the development of facts pertinent to his claim for service connection for a cardiovascular disability. Given the favorable action taken herein as to the claimed cardiovascular disability, and the need to remand the claim for service connection for a skin condition, the Board finds that no further assistance in developing the facts pertinent to the Veteran's claim is required at this time. The Board acknowledges that the Veteran's initial VA Form 9 (substantive appeal), received by VA in May 2011, indicates that he requested a local Board hearing pertaining to the claim of service connection for cardiovascular disability decided herein. An additional VA Form 9, received by VA in November 2011, indicates that he did not want a Board hearing in this matter. In the instant document, the Board grants the Veteran's appeal as to entitlement to service connection for a cardiovascular disability, to include as due to herbicide exposure. Therefore, any defect in not affording the Veteran a hearing in this matter cannot result in prejudice to him. For this reason, the Board will proceed to adjudication of the claim. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and cardiovascular disease becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service, even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116(a) (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2012). A veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f) (West 2002). Diseases associated with such exposure are set forth in 38 C.F.R. § 3.309(e), which has recently been amended to include ischemic heart disease. Ischemic heart disease, as defined in the regulation, includes, but is not limited to: acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina. See 75 Fed. Reg. 53216 (Aug. 31, 2010). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The record reflects that the Veteran served in the Republic of Vietnam during his active duty from August 1965 to February 1966. In April 2008, upon undergoing cardiac catheterization by a private cardiologist, he was diagnosed with non-obstructive coronary artery disease. To establish service connection for a disease presumed associated with exposure to herbicide agents, it need only be shown that the Veteran served on land or in the inland waterways of the Republic of Vietnam during the Vietnam era. Given that the record reflects that the Veteran physically served in the Republic of Vietnam, his exposure to Agent Orange during his active service is presumed. As a result, the Board finds that the preponderance of the evidence supports a grant of service connection for non-obstructive coronary artery disease on a presumptive basis as a result of herbicide exposure. ORDER Entitlement to service connection for non-obstructive coronary artery disease is granted. REMAND As to the Veteran's claim of entitlement to service connection for a skin disability, to include as due to herbicide exposure, the Board finds that additional development is necessary prior to adjudication of the claim. The Veteran's numerous statements of record and his testimony during the September 2009 Travel Board hearing have consistently indicated that that his claimed skin condition, manifested by itchiness, redness, rash, and peeling of his skin, had its onset during service. He has consistently reported that he received treatment for a skin condition while he was hospitalized in a ship's infirmary for seven or eight days in July or August 1965, however, he is unable to remember any diagnosis of a skin condition. He has also reported ongoing treatment for his claimed skin condition continuously since his discharge from service during periods of flare-ups which occur approximately one to four times a year. He has stated that he does not have records of treatment for his claimed skin condition dating from his discharge from active service in 1966 to 1978 because his treating physicians during that time are now deceased or have moved to unknown locations. He has also indicated that he was not aware of VA treatment facilities or of his potential entitlement to service-connected disability compensation until many years later. A review of the Veteran's service treatment records is negative for the alleged treatment of a skin condition and hospitalization in July or August 1965, however, they reflect a diagnosis of rubella in March 1964, receipt of a smallpox vaccination on July 29, 1965, and treatment for a sebaceous cyst behind the left ear in January 1966. The Veteran's DD Form 214 shows that his military occupational specialty was an infantry indirect fireman and he was awarded the Combat Infantryman Badge. It also shows that he had service in the Republic of Vietnam, which the National Personnel Records Center (NPRC) has verified and confirmed that such service dated from August 1965 to February 1966. Thus, the Veteran is presumed to have participated in combat with the enemy and to have been exposed to herbicides. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307 (2012). Additionally, given the overall consistency of his statements and his credibility as a witness, the Board accepts the Veteran's statements concerning his alleged in-service treatment for a skin condition manifested by a rash, itchiness, redness, and peeling of his skin, as true. Thus, no further verification is needed to establish the in-service occurrence of a skin condition as described by the Veteran. See 38 U.S.C.A. § 1154(b) (West 2002); see also Pentecost v. Principi, 16 Vet. App. 124, 128-9 (2002). Regulations also provide that if a Veteran was exposed to an herbicide agent (such as Agent Orange) during active service, chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, shall have 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 military service. See 38 C.F.R. § 3.306 (ii), 3.307, 3.309(e). Post-service treatment records show that since approximately September 1987, the Veteran has been prescribed an oral antifungal medication and antifungal and/or corticosteroid topical creams, gels, and lotions for skin conditions on his feet, back, groin, arms, and torso. VA and private treatment records, examination reports, and skin punch biopsy dermatopathology reports dating since 2001 show diagnoses of: V-shaped acute folliculitis and perifolliculitis with intrafollicular foreign body consistent with a proboscis of an arthropod on the left forearm in October 2001; xerosis and purities, sebaceous hyperplasia, "? acquired vascularectasia - likely benign," and tinea pedis in April 2003; superficial perivascular and interstitial dermatitis with esoinophilis on the back in March 2004, and; xerosis, macular erythema of the right foot - possibly acquired nevus, and two comedones on the low back in March 2005. The Veteran was afforded VA skin examinations in March 2005 and April 2010 to determine the nature and etiology of his claimed skin disability. However, the March 2005 examiner did not provide and etiological opinion for the skin conditions diagnosed on examination at that time. Similarly, because the Veteran was not experiencing a skin eruption on examination in April 2010, the examiner on that occasion stated that in the absence of such, he could not resolve the issue without resort to mere speculation. Once VA undertakes to provide a VA examination or to obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the issue must once again be remanded so that an opinion with respect to etiology may be obtained. In this regard, the Board notes that the Veteran's his skin condition flares up anywhere from one to four times a year for a period of days. In Voerth v. West, 13 Vet. App. 117, 122-23 (1999), the Court found that in circumstances such as here, where Veteran's disability, in its recurrent state, did not affect his earning capacity and the worsened condition did not last more than a few days examination during a flare-up is not required. Additionally, the Board notes that the evidence of record reveals that there is a temporary claims file at the RO. To ensure that the record is complete, the temporary claims file should be associated with the record. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should associate any temporary claims file(s) of the Veteran's that is (are) located at the RO with the record on appeal. 2. The RO/AMC should contact the Veteran and seek authorization to obtain all treatment records and diagnostic reports relevant to his claimed skin condition dating since 2008. He should also be requested to provide any additional photographs of his claimed skin condition for review. Efforts to obtain these records should be documented in the claims folder. If such records cannot be obtained, the AOJ should contact the Veteran and allow him the opportunity to submit such records himself. 3. Thereafter, the RO/AMC should request a medical opinion from a dermatologist pertaining to the diagnosis and etiology of the Veteran's claimed skin disability. The claims file, to include any relevant records in Virtual VA, and a copy of this REMAND, should be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the examiner's report. Following a review of the entire record, to specifically include the March 2005 and April 2010 VA examination reports, the diagnosed skin conditions noted in the REMAND portion of this decision, and the photographs of the claimed skin condition (received in August 2008), the examiner should address the following: a) Does the Veteran have chloracne or other acneform disease consistent with chloracne, or porphyria cutanea tarda? b) State the likely diagnosis of any current skin condition(s). In doing so, specifically address the diagnoses noted in the REMAND section above and state why each diagnosis is or is not applicable. c) As to each skin condition diagnosed, opine whether it is at least as likely as not (50 percent probability or better) that it manifested during the Veteran's active military service or is otherwise caused by or related to any injury or event therein, to include herbicide exposure and a diagnosis of rubella. In rendering any opinion, the examiner must acknowledge that it has been accepted that the Veteran received treatment for a skin condition manifested by rash, redness, itchiness, and peeling of his skin for a period of seven or eight days during service. The Veteran's lay statements as to continuity of symptomatology of the claimed skin condition since service should also be acknowledged. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. If any requested opinion cannot be provided without resort to mere speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. If it is determined that an examination is necessary, this should be accomplished. 4. After the development requested has been completed, the RO/AMC must review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 5. After completing the requested actions and any additional development action deemed warranted, the RO/AMC must readjudicate the claim of service connection for a skin disability, to include as due to herbicide exposure. If the benefit sought on appeal remains denied, the RO/AMC must furnish to the Veteran and his representative a supplemental statement of the case and afford them an opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs