Citation Nr: 1304913 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-40 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for radicular pain of the bilateral lower extremities (claimed as peripheral neuropathy of the bilateral lower extremities), to include as secondary to diabetes mellitus type 2, or as due to exposure to herbicides. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a skin disorder (claimed as chloracne), to include as due to exposure to herbicides. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from June 1969 to May 1971. The Veteran served in Vietnam from July 1970 to June 1971; therefore, exposure to herbicides is conceded. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. After reviewing the contentions and evidence of record, the Board finds that the issues on appeal are more accurately stated as listed on the title page of this decision. The Board notes that the Veteran originally claimed entitlement to service connection for peripheral neuropathy of the bilateral lower extremities and chloracne; however, the Veteran has been diagnosed with radicular pain of the bilateral lower extremities and various skin disorders other than chloracne (including basal cell carcinomas and actinic keratosis). The Board has expanded the Veteran's appeal to include all skin disorders and for his diagnosed radicular pain. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) (It is the claimant who knows that symptoms he is experiencing and that are causing him disability...[and] it is the Secretary who know the provisions of title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a submission.) A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 2009) (to the effect that, when determining the scope of a claim, the Board must consider "the claimant description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran is seeking entitlement to service connection for radicular pain of the bilateral lower extremities (claimed as peripheral neuropathy of the bilateral lower extremities), to include as secondary to diabetes mellitus type 2, or as due to exposure to herbicides. The Veteran was afforded a VA examination in July 2010. Once the Secretary undertakes to provide an examination, even if not statutorily obligated to do so, he must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examiner opined that the Veteran's radicular pain in both lower extremities preceded the Veteran's diabetes, and therefore, was less likely than not related to diabetes. The Board notes that secondary service connection can be established by evidence demonstrating the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Although the July 2010 examiner noted that the Veteran's bilateral lower extremity disorder was not related to diabetes, the examiner did not offer an opinion regarding whether the Veteran's diabetes aggravates his radicular pain. Furthermore, there was no opinion provided regarding whether the Veteran's radicular pain is causally or etiologically due to service. The Board finds that a remand is necessary to obtain these opinions. The Veteran is also seeking entitlement to service connection for a skin disorder. The Board notes that the Veteran previously filed claims for entitlement to service connection for a skin disorder. See May 1971 VA Form 21-526e and June 1988 VA Form 21-4138. These claims were both denied. See May 1971 and June 1989 rating decisions. The Veteran did not file timely notice of disagreements and subsequently, the rating decisions became final when the Veteran did not perfect his appeals within the statutory time limit. Evans v. Brown, 9 Vet. App. 273, 285 (1996). As such, the Veteran's claim for service connection for a skin disorder may only be opened if new and material evidence is submitted. The Veteran's instant claim is therefore construed as an attempt to reopen a previously denied claim. Under Kent v. Nicholson, 20 Vet. App. 1 (2006), there are VA notice requirements for new and material evidence claims. In particular, under Kent, VA must notify the Veteran of the elements of his claim and of the definition of "new and material evidence." Kent also requires that VA give the Veteran notice of precisely what evidence is necessary to reopen the claim, depending upon the basis of the previous denial. Kent further requires that the notice inform the Veteran as to the basis for the prior final denial and as to what evidence would be necessary to substantiate the claim. Id. The VA failed to notify the Veteran of the definition of new and material evidence, why his previous claim was denied, and did not mention precisely what evidence is necessary to reopen the claim, as is required by Kent. Thus, a remand is required so that VA can afford the Veteran all appropriate due process. All updated VA and private records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Provide notice to the Veteran as required by Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran must be informed of the definition of "new" and "material," the basis for the previous denial, and of what the evidence must show in order to reopen his claim for a skin disorder. 2. Obtain and associate with the claims file all updated VA and private treatment records. 3. Obtain an addendum to the July 2010 VA examination. If deemed necessary by the examiner, afford the Veteran an in-person examination for radicular pain of the bilateral lower extremities. The claims file must be made available and reviewed by the examiner. The examination report should note that the claims file was reviewed. The examiner is requested to review all pertinent records associated with the claims file and offer comments and an opinion addressing 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: a) the currently diagnosed radicular pain of the bilateral lower extremities is causally or etiologically due to service, to include exposure to herbicides; and, b) the currently diagnosed radicular pain of the bilateral lower extremities is proximately due to OR aggravated (a permanent increase in severity beyond natural progress) by his service-connected diabetes mellitus, type 2. In doing so, the examiner must acknowledge symptoms experienced during and after discharge from service, and discuss lay as well as medical evidence of a continuity of symptomatology. In particular, review the lay statements as they relate to the development of his bilateral lower extremities disorder and provide information as to how the statements comport with generally accepted medical norms. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved is required. 4. The Veteran is hereby notified that it is his responsibility to report for the examination scheduled in connection with this REMAND and to cooperate in the development of his case. 5. After all of the above actions, including any further development as deemed necessary, are completed, and the Veteran has been given adequate time to respond, readjudicate his claims. If the claims remain denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran 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). _________________________________________________ WAYNE M. BRAEUER 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).