Citation Nr: 1323234 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 08-39 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a skin condition, to include as due to Agent Orange exposure or as secondary to the service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to January 1970. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims, which includes electronic VA treatment records. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. 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 contends that he has a skin condition due to exposure to Agent Orange in service or as secondary to his service-connected PTSD. Initially, the Board notes that the Veteran served in the Republic of Vietnam during the Vietnam era. Thus, he is presumed to have been exposed to an herbicide agent in service. At the November 2009 VA examination, the Veteran was diagnosed with seborrheic karatosis on his back. The examiner stated that the Veteran's skin disorder was not a presumptive condition caused by Agent Orange. However, the VA examiner did not provide an opinion as to whether the Veteran's claimed skin condition was directly due to Agent Orange exposure. In this regard, the fact that a disability is not listed in 38 C.F.R. § 3.309(e) as presumptively associated with Agent Orange does not preclude a veteran from establishing service connection with proof of actual causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In the July 2010 VA medical addendum, the examiner noted that the Veteran's skin condition on his back was not caused or aggravated by his PTSD, but did not provide an adequate rationale for the opinion provided. In addition, in a March 2009 written statement, the Veteran noted that he has lesions on his scalp, and eczema on his face and neck. Further, at the Veteran's hearing held by the RO in April 2010, he stated that while in service, his feet were "constantly pealing" and that he suffered from "jungle rot" but did not seek treatment in service. However, the Board notes the Veteran denied suffering from skin disease, cysts, tumors, growths, boils, or foot problems on his separation examination. In light of the above, the Board finds that a remand is needed to provide the Veteran with a new VA examination in conjunction with his service connection claim for a skin condition and to obtain an opinion as to its relationship to service or service connected PTSD. Regarding secondary service connection, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. VA may grant service connection for disability caused by service-connected disability or for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. See Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002). However, service connection not be awarded on an aggravation basis without the establishment of a pre-aggravation baseline level of disability which can be compared to the current level of disability. Pre-aggravation baseline level of disability should be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the non-service-connected disease. 38 C.F.R. § 3.310 (2012). Also, VA treatment records dating up to September 2012 are contained in the claims file. Relevant ongoing medical records should be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain relevant VA treatment records dating since September 2012 from the VA Medical Center in Detroit. If no relevant records exist, the claims file should be annotated to reflect such. 2. Schedule the Veteran for a VA skin examination to determine the nature of the Veteran's skin condition and to obtain an opinion as to whether any current condition found is possibly related to service or his service-connected PTSD. The claims folder must be reviewed by the examiner. Following a review of the claims file and examination of the Veteran, the examiner should provide a medical opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current skin condition is causally related to service, to include his presumed exposure to Agent Orange during service. The examiner should explain why the Veteran's skin condition is/or is not related to service or Agent Orange exposure. If the examiner finds that the condition is not related to service, then the examiner should provide an opinion as to as to whether it is at least as likely as not (50 percent probability or greater) that any current skin disorder, is caused by or aggravated (permanent worsening of the underlying condition) by the Veteran's service-connected PTSD. If the examiner finds that any current skin disorder is aggravated by the service-connected PTSD, then the examiner should attempt to quantify, if possible, the extent to which the skin disorder has been permanently worsened by the PTSD beyond the baseline level of disability. A complete rationale must be provided for all opinions expressed and conclusions reached. 3. After completion of the above development, the Veteran's claim should be readjudicated. If the claim remains denied, he and his representative should be provided with a supplemental statement of the case and be given an opportunity to respond thereto. Thereafter, the case should be returned to the Board, if 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 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.A. BANFIELD 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).