Citation Nr: 1323169 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 08-02 593 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a gastrointestinal disorder, to include as secondary to service-connected PTSD. 3. Entitlement to service connection for a skin disorder, to include as a result of herbicide exposure. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to April 1971. This case was originally before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted service connection for PTSD and assigned an initial 10 percent rating. Subsequently, in a December 2007 rating decision, the RO increased the initial rating for PTSD to 30 percent; the Veteran continued the appeal for the assignment of a higher initial evaluation. In July 2009, the Board, among other actions, affirmed the RO's denial of a disability rating in excess of 30 percent for PTSD. The Board notes that claims of service connection for a gastrointestinal disorder and a skin disorder were remanded. The Veteran appealed the Board's July 2009 decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2010 Order, the Court granted the parties' Joint Motion to vacate and remand that portion of the Board's decision that denied entitlement to an initial rating in excess of 30 percent for PTSD for action consistent with the directives contained in the joint motion. In June 2010, the Board again denied entitlement to an initial rating in excess of 30 percent for PTSD. The Veteran appealed that decision to the Court. Pursuant to a Memorandum Decision, the Court, in a December 2011 Order, vacated that decision and the appeal of that issue was remanded to the Board. The case was returned to the Board in August 2012, at which time the Board denied service connection for a skin disorder, to include as a result of herbicide exposure, and remanded service connection for a gastrointestinal disorder and an initial rating higher than 30 percent for PTSD. The Veteran appealed the August 2012 decision to the Court, which granted the parties' Joint Motion to vacate and remand that portion of the Board's decision that denied service connection for a skin disorder. The case is now returned to the Board for appellate review. In a June 2013 statement the Veteran asserted that he developed chest pains and an irregular heart beat during his military service. The issue of entitlement to service connection for chest pain and an irregular heart beat has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, this claim is referred to the AOJ for appropriate action. The appeal is REMANDED to the Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a skin disorder, to include as secondary to herbicides exposure. The Board denied this claim in August 2012 relying on a VA medical opinion that was provided in which the examiner determined that the Veteran's diagnosed rosacea was not related to service because it was not one of the presumptive diseases related to herbicide exposure. The Joint Motion noted that even though the Veteran's rosacea is not a presumptive disease, this does not preclude service connection on a direct basis. The Joint Motion cited to Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) (holding that "[t]o permit the denial of service connection for a disease on the basis that it is not likely there is any nexus to service solely because the statistical analysis does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection"); and Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) ("The availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange."). The Board was directed to revisit the issue and decide whether another medical opinion was warranted. In June 2013 the Veteran's representative submitted additional argument on the Veteran's behalf asserting that not only was the Veteran claiming service connection for a skin disorder related to herbicide exposure but also to exposure to toxins during his tour at Camp Lejeune, North Carolina from February 1969 to April 1971. The representative noted that a birth certificate of the Veteran's daughter dated in September 1970 notes that she was born at the Naval Hospital at Camp Lejeune, thus verifying the Veteran's service there. The Veteran submitted a statement that he was assigned to the New River Naval Air Station at Camp Lejeune until his discharge in 1971 and was exposed to contaminated ground water. He also noted again his service in Vietnam and exposure to Agent Orange and the sun and indicated that a skin rash was present. Further, the Veteran's representative argued that the examination should be scheduled during an active stage of the skin disorder. The Board notes that if Appellant's condition is subject to active and inactive stages (skin conditions generally), an examination should be conducted during the active stage. Ardison v. Brown, 6 Vet. App. 405, 408 (1994). VA has acknowledged that persons residing or working at the U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds (VOCs). See Veterans Benefits Administration (VBA) Fast Letter 11-03 (January 11, 2011). In the early 1980s, it was discovered that two on-base water-supply systems were contaminated with the VOCs trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry cleaning agent. Benzene, vinyl chloride, and other VOCs were also found to be contaminating the water-supply systems. See VBA Training Letter 11-03 (Revised) (November 29, 2011). Until scientific evidence shows otherwise, it will be assumed by VA that any given Veteran-claimant who served at Camp Lejeune was potentially exposed in some manner to the full range of chemicals known to have contaminated the water there between 1957 and 1987. Id., at p. 6. The National Academy of Sciences ' National Research Council (NRC) published its report, Contaminated Water Supplies at Camp Lejeune, Assessing Potential Health Effects, in 2009. This report included a review of studies addressing exposure to TCE and PCE, as well as a mixture of the two, and a discussion of disease manifestations potentially associated with such exposure. Fourteen disease conditions were identified as having limited/suggestive evidence of an association with TCE, PCE, or a solvent mixture exposure. However, rosacea is not one of these. VBA Training Letter 11-03 (Revised) (November 29, 2011), Appendix B. Once again, however, this does not preclude establishing service connection for rosacea secondary to exposure to contaminated water on a direct basis. See Polovick, 23 Vet. App. at 55; Stefl, 21 Vet. App. at 123. The Veteran indicated that he wanted the AOJ to review the newly submitted evidence and thus wanted the case remanded. Also, pursuant to the Joint Motion, the Board determines that a supplemental opinion is warranted to address the service connection claim for a skin disorder. With respect to the claims for an initial rating higher than 30 percent for PTSD and service connection for a stomach disorder, it does not appear that the RO has had a chance to implement the directives of the Board's August 2012 remand. Therefore, these matters are remanded again, as well. Accordingly, the case is REMANDED for the following action: 1. Implement the directives of the Board's August 2012 remand addressing the initial rating claim for PTSD higher than 30 percent and the service connection claim for a gastrointestinal disorder to include as secondary to PTSD. 2. Contact the appropriate service department to verify the dates of the Veteran's service at Camp Lejeune (note that his daughter's birth certificate dated in September 1970 shows that she was born at the Naval Hospital at Camp Lejeune). Document all attempts and indicate in the request that a response is required. If efforts to obtain these records are unsuccessful, notify the Veteran and describe any further action to be taken by the RO with respect to the claim. 3. Then, schedule the Veteran for a VA dermatology examination if possible during an active stage of the Veteran's skin disorder. The claims file must be made available to, and reviewed by, the examiner. All appropriate testing should be conducted. The examiner should identify all current dermatology disorders found to be present, i.e., rosacea, etc. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current skin disorder had its clinical onset during active service or is related to any in-service disease, event, or injury, including exposure to herbicides in Vietnam, contaminated water at Camp Lejeune, North Carolina, and/or excessive heat and sun during his service. In providing this opinion, it is acknowledged that rosacea is not considered as presumptively related to herbicide exposure and/or exposure to contaminated water at Camp Lejeune; but the examiner is asked to determine in the Veteran's individual case if his rosacea (or other diagnosed skin disorder) is directly related to his military service. The examiner should also consider that the Veteran has stated that he suffered from skin rashes in service. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 5. Finally, readjudicate the claim on appeal including the issues of entitlement to an initial rating higher than 30 percent for PTSD and service connection for a gastrointestinal disorder. If the benefits remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond. 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). _________________________________________________ K. PARAKKAL 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).