Citation Nr: 1310185 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 08-16 064 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for a skin disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to March 1972. He was awarded the Vietnam Campaign Medal and the Gallantry Cross with a Bronze Star, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) from a September 2007 RO decision. The Veteran and his wife presented sworn testimony during a January 2009 hearing at the RO before a Decision Review Officer. He again presented sworn testimony during a hearing before the undersigned Acting Veterans Law Judge in July 2010. The transcripts of both hearings have been included in his claims file and have been reviewed. In June 2011, the Board remanded this matter for further evidentiary development. Such development was not fully accomplished. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action on his part is required. REMAND The Veteran contends he experiences a recurring skin rash on his feet and ankles which began while he was in Vietnam, and recurs to this day. His wife has attested to her observation of the rash also. As was explained in the prior Board remand, because the Veteran served in combat, he bears a lesser evidentiary burden to establish that his rash began under these conditions in service. 38 U.S.C.A. § 1154(b). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of the VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304. In this case, the Board finds that the Veteran's statements as to a rash he experienced during service, which he related to wearing wet leather combat boots, to be entirely credible. The combat provisions of 38 U.S.C.A. § 1154(b) do not create a statutory presumption that a combat veteran's claimed disability is service-connected, but it is an evidentiary mechanism which lightens the burden of a veteran who seeks service connection based on disability alleged to be related to combat. If a combat veteran presents satisfactory lay or other evidence of service incurrence or aggravation of a disease or injury, which is consistent with the circumstances or hardships of his service, then an evidentiary presumption of service connection arises and the burden shifts to the government to disprove service incurrence or aggravation by clear and convincing evidence. In determining if there is such clear and convincing evidence, all evidence should be considered including availability of medical records, the nature and course of a disease or disability, the amount of time that has elapsed since service before there is a complaint of the condition, and any other relevant factors. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The problem with the Veteran's claim is that currently there is little corroborating evidence as to his statement that he has a current disability involving such a rash. Although he and his wife have provided statements and testimony to this effect, it is desirable that someone who is disinterested should observe the rash before VA benefits are awarded for it. It is further desirable that a medical professional observe it, as no medical nexus to service has been established. In other words, while the in-service event, in this case the initial incurrence of the rash, has been established; the other two elements for a successful service connection claim, a current disability, and a nexus between the two, have not yet been shown. For these reasons, the Board remanded the matter in June 2011 to provide the Veteran with a VA dermatological examination to identify the nature and etiology of the rash, and also to attempt to obtain any evidence of continuity of the rash throughout the years. With regard to obtaining medical records to establish continuity of symptomatology, the Veteran was provided with the appropriate forms so that he could identify his primary care providers since service and the VA could then assist him in obtaining copies of his medical records. He did not provided the requested information, however, so no further action was taken to obtain medical records. As the appeal must be remanded anyway, the Veteran should be given another opportunity. The Board wishes to emphasize the importance of medical evidence which may help to link the current rash to the one he experienced in service. As the Veteran testified during the Board hearing that he had seen a dermatologist in 1973 for the rash, and had also shown it to his primary care physician over the years, this medical evidence could be highly probative of his appeal. He is therefore encouraged to complete the forms so that VA can assist him in developing evidence to support his appeal. With regard to the dermatological examination, the Veteran reported for a VA examination in January 2012. However, the rash was not active at that time, and was not visible to the examiner. The Veteran reported that it often appears during the hot months of summertime. The examiner commented that the history of the rash suggested a possible contact dermatitis, but it was not currently visible, and careful skin examination showed normal findings. The examiner also noted that there was no documentation of the rash in the Veteran's VA records. The examiner recommended that the Veteran should be re-examined when the rash was active, and that to exclude contact dermatitis and identify any allergen causing the rash, skin patch tests could be performed. The examiner then provided the following commentary: If we are to believe the Veteran that such a rash does exist during the summer months and if we are to believe him that this rash first initiated in the military then [there] is a greater than 50% probability that it did in fact originate on active duty. There are different types of dyes and chemicals used in the processing of leather that could have caused a dermatitis that fit the pattern presented by the Veteran. This rash can be activated by hot or cold conditions that further irritate the skin enough to trigger an eruption. For a more definitive disposition, there must be evaluation and biopsy of the rash when it presents itself. Otherwise an opinion from this clinician is just that and is based on the reports of the Veteran. Thus, the examiner's comments constitute a semi-nexus statement, lending further support to the Veteran's claim. However, it is the opinion of the Board that the presence of the rash as well as medical evidence to the effect that the current rash is likely to be related to the rashes in service is still required. Governing regulation provides that whenever possible, examination of disabilities subject to periodic exacerbation and improvement, such as diseases of the skin, should be scheduled when the disease would be most disabling. For a disability subject to periodic flare-ups, where the record contains insufficient information to schedule an examination during a peak period of disability, the veteran should be asked to provide information as to the peak periods of the disability and should be asked to contact the regional office when the condition worsens. 38 C.F.R. § 3.344; also see Ardison v. Brown, 2 Vet. App. 405 (1994). In this case, the Veteran has already indicated that his rash tends to appear during the summertime; therefore, the RO should work closely with the Veteran to schedule another VA examination during a period when the rash is active. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should again contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for the claimed skin disorder. The Veteran should be asked to provide an address and completed authorization for Dr. Smith, located in Corsicana, Texas. With the necessary authorization from the Veteran, the RO/AMC should attempt to obtain copies of pertinent treatment records identified by the Veteran that are not currently of record. All efforts to obtain these records must be documented in the claims file. If any records cannot be obtained, it should be so stated, and the Veteran is to be informed of any records that could not be obtained. 2. The RO/AMC should work closely with the Veteran to schedule a dermatology examination during a time period when the Veteran's rash is active and observable. The examiner is requested to determine the nature and etiology of any skin disorder(s) which are apparent. IF the examiner concurs with the prior examiner's recommendations, and ONLY IF the Veteran consents, the suggested allergen patch tests and/or a skin biopsy should be performed. The examiner is requested to review the Veteran's claims file, to include any records obtained pursuant to the above request, and the report of the January 2012 VA examination. The examiner should report all current dermatologic diagnoses. The examiner should render an opinion as to whether it is at least as likely as not (at least a 50/50 possibility) that any currently manifested skin disorder was incurred in or aggravated during service, or is otherwise related to service. The examiner should explicitly consider the Veteran's report of the skin symptoms in service and after service. All pertinent clinical findings and the complete rationale for all opinions expressed should be set forth in a comprehensive report, citing the objective medical findings leading to the conclusion. If the examiner is unable to provide an opinion without resort to mere speculation, he or she should so indicate and explain why an opinion cannot be reached. 3. After the development requested above has been completed to the extent possible, the RO should again review the record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran 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 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. 2011). _________________________________________________ C. L. KRASINSKI 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).