Citation Nr: 1318886 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-42 087A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a skin disability, including as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to September 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal from a December 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The claims file was subsequently transferred to the RO in Atlanta, Georgia. 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 seeks entitlement to service connection for a skin disability, as secondary to herbicide exposure in the Republic of Vietnam. Governing law provides that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on 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). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) (2011) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (2011) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; hairy cell leukemia and other chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); Parkinson's disease; and ischemic heart disease. 38 C.F.R. § 3.309(e) (2012). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy 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 active military, naval, or air service. 38 C.F.R. § 3.307(a) (6) (ii) (2012). The record reflects that the Veteran had service in the Republic of Vietnam from 1968 to 1969. Therefore, exposure to herbicides is established. 38 C.F.R. § 3.307(a) (6) (iii). However, chloracne is the only presumptive skin disease due to herbicide exposure. Nonetheless, where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board notes that the Veteran's complete service records have not been associated with the claims file. It was noted in the RO's December 2006 rating decision that service treatment records were not available for review. A search was conducted at the RO, but no service treatment records were located. The Veteran was notified in July 2009, but responded that he did not have any service treatment records in his possession. A request to the National Personnel Records Center resulted in the receipt of partial service treatment records in July 2009, and these have been associated with the claims file. In August 2009, the RO issued a Formal Finding on the Unavailability of Service Treatment Records. In cases where service records are unavailable, there is a heightened obligation to assist the claimant in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in cases. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Service treatment records which are of record include the Veteran's September 1969 Report of Medical History at separation, at which time he reported that he never had any skin diseases. Similarly, the September 1969 Report of Medical Examination at separation indicated that the Veteran's skin and lymphatics were within normal limits. A review of the post-service treatment records reveals several diagnoses related to the Veteran's skin. Private treatment records have diagnosed the Veteran as having psoriasis, papulosquamous eruptions with questionable erythrodermic psoriasis, and chronic spongiotic dermatitis. However, VA treatment records have diagnosed him as having chronic atopic dermatitis and merely include "dermatitis" on his list of active problems. Despite this, the Veteran still vehemently contends that his skin disability is related to herbicide exposure in Vietnam and that it has been incorrectly diagnosed as atopic dermatitis, asserting that his dermatologist has not yet determined the real cause of his skin disability. The Veteran additionally indicated that VA physicians continued to give him different medications to see if anything would help clear up the disorders. VA treatment records show that the Veteran has been prescribed fluocinonide 0.5 percent topical ointment, a potent glucocorticoid steroid, to treat his skin disability. Despite this, the Veteran continues to suffer from itching over his entire body. The Board emphasizes that the Veteran has never been given a VA examination to determine the likely nature and etiology of his skin disability. The Board finds that a remand is required to afford the Veteran an examination to determine whether any current skin disability is related to service. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a VA examination by a physician in order to determine the etiology of any current skin disability. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner should provide a diagnosis for any skin disability found. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any diagnosed skin disability was incurred in service or is otherwise related to service to include, but not limited to, his presumed in-service exposure to an herbicidal agent. A complete rationale for the opinion expressed should be provided. 2. Upon completion of the above, if the benefit sought on appeal remains denied, the RO should issue a supplemental statement of the case and provide the Veteran and his representative an appropriate period of time in which to respond. Then, the appeal should be returned to the Board for further 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).