Citation Nr: 1320492 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-02 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for skin disability of the legs, arms, and face, to include as due to in-service exposure to herbicides, and to include as secondary to service-connected diabetes mellitus. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1968 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran was afforded a Travel Board hearing in September 2012. This appeal was previously before the Board in November 2012 and March 2013. For the reasons discussed below, another remand is required. 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 In March 2013 this appeal was remanded in order to provide the Veteran with an examination to determine the nature and etiology of his skin disability. In the event that the examiner determined a requested opinion could not be rendered without resorting to speculation, it was indicated that he should provide a rationale for such opinion. The Veteran was afforded a VA examination in April 2013. The examiner indicated that he could not resolve whether the rash was due to herbicide exposure, regardless of its absence from the presumptively related disabilities, without resort to mere speculation. The Board notes that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or be apparent upon a review of the record. In the current case, it is not apparent to the Board that the procurable and assembled data was fully considered. The examiner did not indicate whether it was a lack of evidence or limits of medical knowledge which caused the inability to provide the requested opinion without resort to speculation. Jones v. Shinseki, 23 Vet. App. 382 (2010). In addition, the examiner indicated that diabetes was not a known risk factor for seborrheic dermatitis; however, the examiner did not specifically address whether the Veteran's skin disability was due to or worsened by service-connected diabetes mellitus. As such, remand is requested to obtain another VA examination and opinion with complete rationale. Here, the examiner indicated that the Veteran had seen a private doctor for dry skin of the legs and ankles and left ear, but that no records were available. This statement makes it unclear whether the examiner considered the private treatment records from Dr. Jain associated with the claims folder, and observed that Dr. Blose's records were unavailable, or whether the examiner overlooked Dr. Jain's records, or whether there are current private treatment records unassociated with the claims folder. While on remand, clarification from the Veteran should be sought regarding whether he is currently receiving or has recently received private treatment for his skin condition. If so, then the records should be requested and associated with the claims folder prior to a new examination. If not, then the examiner should be requested to review the claims folder, to include the private records already associated with it, and to so indicate. Accordingly, the case is REMANDED for the following action: 1. Clarify with the Veteran whether there are outstanding private treatment records regarding skin treatment. If so, following receipt of necessary authorization and release forms request such records and associate them with the claims folder or Virtual VA. If records are not obtained, the claims folder should contain information concerning attempts made to obtain the records. Appellant is notified that he may obtain and submit the records if he so desires, without assistance of VA. 2. Then, provide the Veteran with an examination to determine the nature and etiology of his claimed skin disability of the legs, arms, and face by an examiner who has not previously examined the Veteran if possible. The examiner should review the claims file, any relevant records in the Virtual VA electronic records system and any private records on file. The ensuing report should indicate that such a review occurred. Following an appropriate examination, the examiner should determine whether the Veteran has a current skin disability, and if so, whether it is at least as likely as not (a 50 percent probability or greater) that the diagnosed disability is etiologically related to his military service, including exposure to herbicides, or is caused or worsened by his service-connected diabetes mellitus. In the report, the examiner should specifically address the November 2007 Agent Orange assessment, related to the etiology of the cracked skin on the Veteran's feet. The examiner should address the Veteran's competent report of a history of dry skin since service, and his identification of scarring that occurred during service or as a result of skin symptoms that began during service. The examiner should note that the mere fact that a diagnosed skin disease is not on the list of conditions presumptively related to herbicide exposure (found at 38 C.F.R. § 3.309(e)), is not a sufficient basis for an opinion that the skin condition is not related to herbicide exposure. A complete and adequate rationale is required for any opinion expressed. If the examiner determines that the requested opinion cannot be rendered without resorting to speculation, he or she should so state, and should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given the state of medical science and the known facts) or by a deficiency in the record (i.e., additional facts are required), or that the examiner does not have the necessary knowledge or training. 3. Ensure that the examiner's report complies with this remand. If the report is deficient, it should be returned to the examiner for necessary correction. 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). _________________________________________________ MICHAEL D. LYON 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).