Citation Nr: 1321050 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 09-07 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement service connection for a skin disorder (also claimed as a rash of the arms, chest, and back and as a fungus of the feet, toes, and nails), to include as a result of exposure to herbicides in service. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran had active duty service from September 1965 to September 1967, including service in the Republic of Vietnam from April 1966 to April 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In August 2011, the Veteran testified before the undersigned Acting Veterans Law Judge at a videoconference hearing. A transcript of this proceeding has been associated with the claims file. In this case, the Veteran originally filed a claim of entitlement to service connection for a "skin disorder." At his August 2011 hearing, the Veteran described rashes affecting the arms, chest, and back. Board Hearing Transcript (Tr.) at p. 6. In an August 2011 statement, the Veteran also described a foot fungus affecting the toes and nails. Although his August 2011 statement was submitted on a form identifying it as a claim to reopen, these symptoms are reasonably encompassed in his claim for a skin disorder and are therefore considered as part of the pending appeal rather than as a new claim for service connection. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim containing pertinent evidence. 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 Although the Board regrets any further delay, a remand is necessary for additional development. I. VA Treatment Records As an initial matter, VA treatment records contained on Virtual VA reflect that an Agent Orange Registry note was dictated on August 6, 2008. However, a review of the paper file and Virtual VA is absent for a copy of this dictation or any related Agent Orange Registry information. Documents, such as medical records generated by VA, are considered constructively part of the record before the Board. Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992) (per curiam). Accordingly, on remand, the RO/AMC must make attempts to obtain the documents identified above and, if unavailable, the Veteran should be provided with notification of their unavailability in accordance with 38 C.F.R. § 3.159(e)(1). 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2) (VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency and will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile). Also, to the extent that the Veteran may have received any additional treatment for a skin disorder from the VA Medical Center (VAMC) in Philadelphia, Pennsylvania, recent treatment records from that facility should also be obtained on remand. II. Private Treatment Records The Veteran provided a VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs) indicating that he was treated by Dr. C., Rittenhouse Podiatry, in 2010 for a foot fungus. However, there is no indication that any attempts were made to obtain this information. Therefore, after requesting the Veteran's consent and authorization, VA should make efforts to obtain all available records from Rittenhouse Podiatry since 2010. See 38 C.F.R. § 3.159(c)(1). The RO/AMC should also request that the Veteran identify any additional medical treatment he has received for his claimed skin disorder (also claimed as a rash of the arms, chest, and back and as a fungus of the feet, toes, and nails) and take appropriate steps to obtain such information. III. Adequate VA Examination The Board recognizes that the Veteran was provided with a VA examination in August 2008. According to the examination request, the purpose of this examination was to assess the Veteran's service-connection claims for prostate cancer and diabetes; no request was made for an evaluation of the Veteran's claimed skin disorder. Therefore, although the August 2008 VA examination indicated that there was no history of a foot disorder and that the skin was "intact," these are likely merely preliminary findings made by the examiner to assess diabetes complications and residuals of prostate cancer. Thus, Board finds that the examination report is not a thorough assessment of the Veteran's claimed skin condition. In this case, the Board finds that another VA examination is warranted to assess the nature and etiology of the Veteran's claimed skin disorder. As an initial matter, the evidence suggests an in-service event, injury, or disease. First, the Veteran served in the Republic of Vietnam, and he is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). Second, he was treated on multiple occasions in service for problems with the left foot, described as an ulcer, sore, abscess, and/or cellulitis. Although the Veteran's pre-induction examination reflects non-disabling keloids on the body and he reported a history of boils on his Report of Medical History, no disability was noted at the time of his entrance into service, and his in-service complaints appear to be new. Additionally, VA treatment records reflect several persistent symptoms of a chronic skin disability. Physical examination revealed keloidal plague of the right axilla, multiple skin-colored papules, and onychodystrophy. See August 2008 VA treatment report. Significantly, the Veteran was assessed with a history of tinea versicolor, for which he was prescribed a shampoo, and onychomycosis of all toes. The Veteran is competent to report continuous skin symptomatology through the years, such as red and flaky rashes of the arms, chest, and back. However, as it stands, there is insufficient medical evidence in the record for the Board to make a determination in this case. Although the Veteran stated that his doctor told him that his condition was "possibly Agent Orange or a skin fungus that I had attributed from being in Vietnam" (Tr. at p. 6), which indicates that his skin complaints may be related to service, the claims file is absent for a probative opinion by a competent medical professional. Given the documented evidence of in-service complaints of the foot and the Veteran's conceded exposure to herbicide agents, his competent complaints of recurring skin problems since service, and current VA treatment records reflecting persistent recurrent skin-related symptoms, the Board finds that a VA examination and opinion are necessary to ascertain the nature and etiology of the Veteran's claimed skin disorder(s). See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA will provide a medical examination or obtain a medical opinion where there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim). Accordingly, the Board finds that a VA skin examination, with an opinion, is warranted to determine whether any of the Veteran's diagnosed skin disorders are related to his service. Id.; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA takes action to furnish a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Furthermore, the Board notes that there are some disorders of the skin that have active and inactive stages or are subject to remission and recurrence. Where the evaluation of such a disability that fluctuates in degree of disability is at issue, an examination of the disability during an active stage or during an outbreak may be necessary. See Ardison v. Brown, 6 Vet. App. 405 (1994); Bowers v. Derwinski, 2 Vet. App. 675 (1992). Because there may be difficulty diagnosing the Veteran's skin disorders if the symptoms are not present at the time of the VA examination, the Board concludes the VA examination, if feasible, should be scheduled at a time when the Veteran's symptomatology is present. If this cannot be accomplished, the Veteran is encouraged to describe his symptomatology in detail to the examiner and to submit photographs of his symptoms for consideration. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file: (1) the dictated Agent Orange Registry note of August 6, 2008; (2) any other Agent Orange Registry documentation; and (3) all treatment records from the Philadelphia, Pennsylvania, VAMC dated from January 2009 to the present relating to treatment for a skin disorder. All attempts to secure this evidence must be documented in the claims file. If such records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 2. Following receipt of authorization, obtain and associate with the claims file treatment records from Rittenhouse Podiatry relating to private treatment for the Veteran's foot fungus since 2010. Two attempts should be made to obtain relevant private treatment records, unless a formal finding can be made that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). If such records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). The RO/AMC should also request that the Veteran identify any additional medical treatment he has received for his claimed skin disorder (also claimed as a rash of the arms, chest, and back and as a fungus of the feet, toes, and nails). 3. After accomplishing the development outlined in steps (1) and (2), the Veteran should be scheduled for a VA examination to determine the nature and etiology of his skin complaints. The claims file, including a copy of this remand and all relevant medical records must be made available to the examiner to review. All pertinent symptomatology and findings should be reported in detail, and any indicated diagnostic tests, if any, should be accomplished. To the extent possible, VA should attempt to schedule the examination during a time when the symptoms of the skin condition are present. However, if an examination cannot be scheduled during that time, the examiner should, if possible, evaluate the Veteran's complaints based on photographs of the disability and/or the Veteran's reported history. For each diagnosis of the skin rendered, the examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not (i.e., at least a probability of 50 percent or greater) that such disorder is related to service. In providing this opinion, the examiner is directed to discuss the in-service notations of foot-related skin problems and the Veteran's conceded exposure to herbicide agents. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue of entitlement to service connection for a skin disorder (also claimed as a rash of the arms, chest, and back and as a fungus of the feet, toes, and nails), to include as a result of exposure to herbicides in service. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant 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 of Veterans' Appeals or by the United States Court (CONTINUED ON THE NEXT PAGE) 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). _________________________________________________ J.W. FRANCIS 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).