Citation Nr: 1322958 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 12-25 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a skin disorder. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1942 to March 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In June 2013, the Veteran and his spouse testified via video-conference before the undersigned Veterans Law Judge. Transcripts of the hearing has been associated with the claims file. At the time of the Veteran's hearing, he submitted additional evidence with a waiver of agency of original jurisdiction (AOJ) consideration. the 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider the subsequently received evidence. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. The additional medical evidence in the virtual file, to include VA treatment records dated to October 2012, which has been considered by the AOJ in the October 2012 supplemental statement of the case, has been reviewed by the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that VA fulfills its duties to notify and assist the Veteran in order to create a complete record upon which to decide his claim for service connection so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board initially finds that a remand is necessary to afford the Veteran a VA examination and opinion so as to determine the nature and etiology of his skin disorder. In this case, a VA examination is required because the Veteran has presented evidence of current diagnoses of a skin disorder, to include a rash, mycosis fungoides, and cutaneous T-cell lymphoma, as well as competent lay testimony that the first observable skin symptoms began during his active duty service. Likewise, his spouse testified to witnessing such observable symptomatology as early as 1947 or 1948. See 38 C.F.R. § 3.159(a) (2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Specifically, the Veteran has provided written and oral testimony that he developed a rash while serving in Guam and that rash never abated, but increased in size and severity until he eventually received diagnosis and treatment. The Veteran has also testified that he was exposed to toxic substances, such as DDT, while in service and that the rash developed shortly after that exposure. An examination is warranted because the record does not contain sufficient competent medical evidence to decide the claim. To ensure that all due process requirements are met and that the record is complete, the AOJ should obtain and associate with the claims file all outstanding, pertinent records prior to arranging for the Veteran to undergo an examination. In this regard, although the claims file does contain VA treatment records, the most recent VA treatment notes from the Cincinnati VA Medical Center within the (virtual) file are dated prior to October 5, 2012. Further, the claims file reflects that the Veteran has received care from a number of private physicians, but does not contain treatment notes from each of the identified physicians. The file also indicates that updated records may need to be obtained from the Veteran's private primary care physician. Therefore, the AOJ must obtain any outstanding records of VA treatment, provide the Veteran with an authorization form for the release of any pertinent private records, and associate any available records with the claims file before appellate review proceeds. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain all VA treatment records from the Cincinnati VA Medical Center dated after October 5, 2012. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made, and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Provide the Veteran with an opportunity to identify or submit any additional private medical evidence that is not of record. Send him the necessary authorizations for the release of any private treatment records not currently on file. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. The records requests should include, but are not limited to, records from: a. Dr. Shay, dated after January 4, 2010; b. Dr. Goldenberg (noted to be affiliated with the hospital of the University of Cincinnati); and c. Dr. Long. 3. After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and etiology of any current skin disorder, to include a rash, mycosis fungoides, and cutaneous T-cell lymphoma. The claims file, to include a copy of this Remand, must be made available to, and be reviewed by, the examiner. Any indicated evaluations, studies, and tests should be conducted. (A) The examiner is requested to identify any currently diagnosed skin disorders. If the examiner finds that the Veteran does not have a rash, mycosis fungoides, or cutaneous T-cell lymphoma, he or she should explain his or her disagreement with the private diagnoses currently of record. (B) The examiner should also offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a rash, mycosis fungoides, cutaneous T-cell lymphoma, or any other currently diagnosed skin disorder began during service or is otherwise causally related to any incident of service, to specifically include the Veteran's alleged in-service exposure to DDT and other pesticides, sodium arsenate, agent white, and/or smoke from burning latrines. In offering any opinion, the examiner must consider the full record, to include the Veteran's service treatment records, private treatment records, VA treatment records, and the Veteran's and his spouse's statements as to how and when his skin disorder manifested. Citations must be provided for any referenced medical research/authorities and the rationale for any opinion must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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. 2012). _________________________________________________ A. JAEGER 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).