Citation Nr: 1302813 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 10-38 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to herbicide exposure. 2. Entitlement to service connection for cataracts, to include as due to herbicide exposure. 3. Entitlement to service connection for enlarged prostate, to include as due to herbicide exposure. 4. Entitlement to service connection for a dental disorder, for compensation and VA outpatient dental treatment purposes. 5. Entitlement to service connection for a skin disorder, to include as due to herbicide exposure. 6. Entitlement to service connection for night sweats and a sleep disorder. ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to August 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 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 remand is required in this case to ensure there is a complete record upon which to decide the issues on appeal. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d); Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Regarding the Veteran's dental claim, the Board observes that under pertinent laws and regulations, a veteran may apply for both compensation and for dental treatment only. See 38 C.F.R. §§ 3.303, 3.17.161. A claim for service connection is also considered to be a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302 (1993). As amended on February 29, 2012, 38 C.F.R. § 3.381 provides that the Veterans Benefits Administration (VBA) will adjudicate a claim for service connection of a dental condition for treatment purposes after the Veterans Health Administration determines a veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests VBA make a determination on questions that include, but are not limited to, any of the following: (1) former Prisoner of War (POW) status; (2) whether a veteran has a compensable or noncompensable service-connected dental condition or disability; (3) whether the dental condition or disability is a result of combat wounds; (4) whether the dental condition or disability is a result of service trauma; or (5) whether a veteran is totally disabled due to a service-connected disability. See 38 C.F.R. § 3.381(a). In this case, the issue of service connection for a dental disorder for VA outpatient dental treatment purposes has been raised by the record, specifically by the Veteran's assertion that the replacement cost of a bridge, initially paid for by VA, should be covered by VA. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ); therefore, the Board does not have jurisdiction over it and is referred to the AOJ for appropriate action. Furthermore, in a January 2012 statement, the Veteran reported that he has been receiving treatment for the last several years from the Allen Park and John Dingell VA centers. Review of the record shows that VA outpatient treatment records from the John D. Dingell VAMC in Detroit, Michigan, previously located in Allen Park, Michigan, are not of record. Because VA records are considered part of the record on appeal, they are within VA's constructive possession and must be considered in deciding the remaining issues on appeal. Under these circumstances, an attempt should be made by the RO to obtain pertinent records from the Detroit VAMC and associate them with the other evidence already on file. With regard to the remaining claims on appeal, the evidence of record documents the Veteran's reported symptomatology of persistent or recurrent symptoms of a skin disorder, night sweats, and sleep disorder. Specifically, in the October 2007 informal claim, he reported getting bumps all over areas exposed to the sun, and in an August 2010 substantive appeal, via a VA Form 9, noted that he still has to be frequently checked by a dermatologist and have pre-cancerous growths removed. The Veteran completed a May 2007 private sleep apnea questionnaire which revealed a score and risk factor of 4, and in April 2008 and September 2008 statements, reported going through the night sweats and having problems sleeping and adjusting to being back home. In a May 2010 statement, the Veteran further noted the memories and old feelings come back with greater frequency and there has been a more recent return of the memories and night problems. Concerning the question of in-service disease, injury, or event for a skin disorder and night sweats and sleep disorder, a July 1964 pre-induction medical examination record noted objective findings of pilonidal sinus upon clinical evaluation of the Veteran's skin and an April 1969 service treatment record shows assessment of a nonspecific rash. See Dorland's Illustrated Medical Dictionary 1745 (31st ed. 2007) (The term "pilonidal sinus" is defined as a suppurating fistulous tract, most often in the coccygeal region and containing a tuft of hair. It is usually the result of repeated friction that has caused hairs to penetrate the skin.). On January 1968 and August 1969 Reports of Medical History, the Veteran marked "yes" for having or having ever had boils and frequent trouble sleeping, and soaking sweats (night sweats) solely on the January 1968 Report of Medical History. With respect to whether the Veteran's claimed skin, night sweats, and a sleep disorders may be associated with service, the Veteran reported in the October 2007 informal claim that since service he has to avoid exposure to the sun, and in the June 2009 notice of disagreement that he knew the sun poisoning and skin condition was a direct result from military service because something happened therein that made him unable to tolerate the sun. He further noted in the May 2010 statement that his problem with night sweats and a sleep disorder was initially evident for the first few years after separation from service. The Board finds this case presents certain medical questions that cannot be answered by the Board and are not addressed by the evidence of record. See McLendon, 20 Vet. App. at 83; Waters, 601 F.3d at 1274; Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Specifically, these questions concern the relationship, if any, between the Veteran's claimed skin disorder, night sweats, and sleep disorder and active service. These questions should be addressed by the appropriately qualified medical professional. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). As a result, the evidence of record presents an inadequate basis to adjudicate the issues of service connection for a skin disorder and night sweats and sleep disorder. A VA examination with medical nexus opinion would assist in determining the nature and etiology of these claimed disorders on appeal. Accordingly, this appeal is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA outpatient treatment records from the John D. Dingell VAMC in Detroit, Michigan, previously located in Allen Park, Michigan, pertaining to the Veteran's pending claims. If no such records are available, this fact must be noted for the record. 2. Schedule the Veteran for an appropriate VA examination(s) to identify and clarify any current skin disorder, and determine whether there is a nexus between active military service and any currently diagnosed skin disorder. The relevant medical records should be made available to the examiner for review in conjunction with the examination, and the examination report should reflect that such review has been accomplished. All necessary testing should be conducted and all appropriate diagnoses rendered. For any diagnosed rendered pertinent to the claimed skin disorder, the VA examiner(s) must provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that such a disability had its origin in service or is in any way related to the Veteran's active service. A rationale should be given for all opinions and conclusions expressed and should not be solely based on the absence of treatment records during or after service. If an opinion cannot be rendered without resorting to speculation, the VA physician(s) should explain why it would be speculative to respond. 3. Schedule the Veteran for an appropriate VA examination(s) to identify and clarify any current sleep disorder, and determine whether there is a nexus between active military service and any currently diagnosed sleep disorder. The relevant medical records should be made available to the examiner for review in conjunction with the examination, and the examination report should reflect that such review has been accomplished. All necessary testing should be conducted and all appropriate diagnoses rendered. For any diagnosed rendered pertinent to the claimed sleep disorder, the VA examiner(s) must provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that such a disability had its origin in service or is in any way related to the Veteran's active service. A rationale should be given for all opinions and conclusions expressed and should not be solely based on the absence of treatment records during or after service. If an opinion cannot be rendered without resorting to speculation, the VA physician(s) should explain why it would be speculative to respond. 4. The issue of service connection for a dental disorder for VA outpatient dental treatment purposes should be adjudicated by the AOJ. 5. Thereafter, the issues on appeal should be readjudicated. If any benefit sought on appeal is not granted, the Veteran should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). These claims must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ T. D. JONES 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).