Citation Nr: 1305575 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 10-26 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for scleroderma, to include as a result of exposure to chemical agents. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to March 1972. He served in the Republic of Vietnam from March 4, 1970 to January 23, 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied the Veteran's claim of entitlement to service connection for scleroderma. In March 2011, the Veteran testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In April 2011, the Veteran submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. The Board notes that the Veteran's February 2011 claim for service connection for a heart disorder, and his March 2011 claim for an increased rating for his bilateral lower extremity peripheral neuropathy, were adjudicated by the RO in a May 2012 rating decision. 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 Veteran contends that he is entitled to service connection for scleroderma as result of exposure to the chemical agents Agent Orange and Trichloroethylene (TCE) in service. In a September 2007 letter, the Veteran asserted that his scleroderma is related to the herbicide Agent Orange. The Board notes that the Veteran is presumed to have been exposed to Agent Orange as a result of his service in Vietnam from March 4, 1970 to January 23, 1971. 38 C.F.R. § 3.307(a)(6)(iii). However, scleroderma is not a disability that is presumed to be a result of Agent Orange exposure. The Veteran has not provided competent medical evidence linking his scleroderma to his exposure to Agent Orange. The Veteran has also asserted that his scleroderma is related to exposure to TCE in Vietnam. In his June 2010 substantive appeal, the Veteran asserted that TCE was used in Vietnam to clean vehicle engines and parts. He further reported that one of his jobs in Vietnam was to operate a rough terrain forklift, which involved first echelon maintenance on those vehicles, including checking the oil level and checking hydraulic hoses for leaks. He noted that sometimes the engines would be clean and wet. The Veteran also reported that he unloaded parts and drums in Vietnam, some of which were unboxed, and some of which were leaking. At his March 2011 travel board hearing, the Veteran elaborated on his first echelon maintenance on forklifts and trucks, and his work in equipment storage. See transcript, pp. 3-5, 8-9, 12. The Veteran testified that "I don't really know for sure" whether the liquids to which he was exposed in Vietnam were TCE, but "[t]hey use[d] it over there [in Vietnam] I understand for cleaning engines and...vehicle parts [and guns]." Id., p. 11. The Veteran has also furnished photographs showing him driving vehicles in Vietnam. An April 2011 opinion from the Veteran's private treating physician, Dr. Medsger, and an associated March 2011 opinion and excerpt of an accompanying scholarly textbook chapter on scleroderma which Dr. Medsger coauthored, link the Veteran's scleroderma to exposure to chemicals such as TCE. However, Dr. Medsger opines: I cannot comment on [the Veteran's] exposure to chemicals reported in the medical literature to be associated with the occurrence of scleroderma. If his exposure is documented, it is my opinion that his scleroderma is at least as likely as not due to this exposure. I base this opinion on the atypical nature of the patient's scleroderma, including severe thickening of skin of the fingers, an excessive amount of calcinosis (calcium deposition in this skin) and the absence of a scleroderma-specific blood antibody (found in 90% of patients). Therefore, the AOJ should obtain the Veteran's service personnel records or other official records in order to determine where in Vietnam he served. Then, the AOJ should attempt to verify the use of TCE at the Veteran's places of service in Vietnam through official sources. The Veteran has also asserted, in a September 2007 VA Form 21-4142, that his private physician, Dr. Stupi, diagnosed him with scleroderma "around 1973." This contention is significant because scleroderma is subject to presumptive service connection as a chronic disease if it manifested to a degree of 10 percent or more within one year of separation from service-in the Veteran's case, within one year of March 1972. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). VA has obtained the Veteran's medical records from Dr. Stupi. The earliest record showing symptoms of scleroderma is dated December 1987; a June 1988 record includes Dr. Stupi's notation that the Veteran reported experiencing such symptoms for the previous 2 years-i.e., since 1986. However, the Veteran is invited to obtain and submit a letter and/or records from Dr. Stupi showing that he had scleroderma within one year of March 1972. Finally, the Board notes that the Veteran's service treatment records include a notation of a rash on his back and stomach in December 1970 which had been ongoing for 25 days. If the aforementioned development is insufficient to establish service connection, then the Veteran should be provided with a VA medical opinion to determine whether his diagnosed scleroderma is related to service. Accordingly, the case is REMANDED for the following action: 1. Request through official sources the Veteran's service personnel records or other official records in order to determine where in Vietnam he served from March 4, 1970 to January 23, 1971. 2. Attempt to verify through official sources, to include National Archives and Records Administration (NARA), whether TCE was used at the Veteran's places of service in Vietnam from March 4, 1970 to January 23, 1971. 3. Inform the Veteran that he may submit a letter and/or records from Dr. Stupi indicating that she treated the Veteran for scleroderma prior to March 31, 1973. 4. If the aforementioned development is insufficient to establish service connection for scleroderma, then send the Veteran's claims file to a VA rheumatologist for an opinion as to whether it is more likely, less likely, or at least as likely as not that his scleroderma is causally related to his service. The term, "as likely as not," does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the rheumatologist's expert opinion, it is as medically sound to find in favor of that conclusion as it is to find against it. In reaching a conclusion, the rheumatologist should address the significance, if any, of the Veteran's December 1970 service treatment record showing a rash for 25 days on the back and chest, and his subsequent development of scleroderma after service. The examiner should provide a rationale for his/her opinions, to include medical treatise support, if possible. 5. Thereafter, the claim should be readjudicated. If the remanded claim remains denied, issue a supplemental statement of the case, and afford the Veteran an opportunity to respond. Thereafter, return the case to the Board for appellate review. 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 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). _________________________________________________ K. A. BANFIELD 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).