Citation Nr: 1323320 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 10-19 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a skin disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1970 to March 1972 and from February 1973 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The claims file reflects that the Veteran was previously represented by the Virginia Department of Veterans Affairs. In September 2012, the Virginia Department of Veterans Affairs notified VA that they were terminating representation of the claimant, and the Veteran filed a VA Form 21-22a, Appointment of Individual as Claimant's Representative, appointing the Veterans of Foreign Wars of the United States as his representative. In November 2012 the case was remanded by the Board in order to provide the Veteran's representative an opportunity to review the claims file and submit argument on the Veteran's behalf. The required development has been completed, and the case is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 is claiming entitlement to service connection for a skin disorder which he asserts had its onset while he was serving in Vietnam and has continuously affected him since that time. The Veteran's personnel records indicate that he was stationed in Vietnam from July 1971 to March 1972. The Veteran's service treatment records (STRs) include numerous complaints and treatments related to skin disorders. On the Veteran's July 1970 enlistment examination report, the Veteran noted a history of skin diseases, but the examiner wrote that there was no sign of skin disease and no recent boils. In April of an unknown year the Veteran was treated for urticaria around his shoulders, and he also reported that he had similar welts 2 years previous. In August 1976 the Veteran reported sores on his neck and was referred to dermatology. Later that month he reported having a rash on his neck for two weeks that had not cleared, and the examiner diagnosed him with acne. In April 1977 the Veteran reported a lump on his right forearm that was painful upon palpation. After a week of treating it with a hot soak, the lump had become harder. In March 1978 the Veteran reported large lumps on his upper chest and back. In April 1978 the Veteran was treated for a rash on his back and groin, diagnosed as contact dermatitis, and later that month an examiner noted a lesion on the Veteran's left elbow, followed by a report of skin lesions on the neck in May 1978. In an October 1978 physical examination, the Veteran reported bumps on his back and the examiner noted skin gland cysts. In September 1981 the Veteran had a follow-up to check an ulcer and rash. The examiner noted "hives L side ? etiology" and was unable to provide a diagnosis. In October 1989 the Veteran was treated for blistering with infection, pus, and strange odor, which he reported having had previously while in Vietnam. The examiner diagnosed it as a fungal infection and noted a history of "jungle rot." The Veteran was again treated in November 1989 for jungle rot on his left foot, spreading up to his left hand and was also seen by a dermatology clinic due to a 19 year history of intermittent red and cracking rash since exposure in Vietnam. The dermatology clinic examiner diagnosed the Veteran with dyshidrosis and chronic foot dermatitis. In March 1990 the Veteran reported dime sized bumps under the skin. A history of skin disease is noted in the Veteran's April 1991 retirement examination, and the examiner made note of the Veteran having had rashes and "jungle rot." The Veteran's VA treatment records from the Hampton VA Medical Center (VAMC) show that in October 2006 he reported multiple areas of scaly/itchy spots on his back, legs, and palms, as well as pustules behind his ears. He reported a 30 year history of recurrent pruritic bumps on his palms and acne on his face and behind his ears. The Veteran was diagnosed with punctate keratosis on his palms, evidence of chloracne, intradermal nexus, and seborrheic keratosis. In a January 2007 dermatological examination, the Veteran was treated for an intradermal nevus on the forehead, pompholyx, and acne. In December 2009 the Veteran was treated for folliculitis, excoriated seborrheic keratosis, and acne vulgaris. The Veteran has not indicated that he has received any treatment for disorders through private medical providers. In April 2010 the Veteran was afforded a VA examination. The examiner stated that the Veteran had served in the Gulf War and did not have combat experience and that he had been diagnosed with chloracne and erythematous folliculitis with lichenification in 1974. The Veteran reported having itching and crusting skin disease on his face, hands, neck, and arm, with blisters that break and have an acidic smell. Upon examination, the examiner found deep chloracne at the face, forehead, behind the ears, back of the neck, and across the back, manifested by inflamed nodules and cysts. In a Medical Record Review, the examiner discussed the Veteran's 1991 separation examination report, diagnoses of urticaria and dermatitis in service in April 1978, and post-service VA medical treatment. The examiner diagnosed the Veteran with chloracne and opined that it was less likely as not related to military service because he saw no treatment record for chloracne in service, no separation physical was provided, and there was no record of treatment until recently. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, the VA examination of record is inadequate to decide the current claim, and the case must be remanded for a new VA examination. The April 2010 examiner provided a diagnosis of chloracne, but failed to discuss the Veteran's other diagnoses from his dermatological treatment at the Hampton VAMC. The examiner also failed to provide any discussion of the etiology of the Veteran's current chloracne, or to provide a sufficient rationale for his finding that there is no relationship between his chloracne and his service, other than to state that there was no diagnosis of chloracne in service. The examiner also did not appear to be aware of or take the Veteran's full history into account. See Reonal v. Brown, 5 Vet. App. 4458, 460-61 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.). In the Medical History Review, the examiner noted reviewing only the Veteran's 1991 separation examination and two STRs from 1978. There is no indication that the examiner reviewed or was aware of the Veteran's other complaints and treatments for skin conditions in service. The examiner also made note of the Veteran being diagnosed with chloracne in 1974, although it is not stated whether this is the Veteran's self-report or based on a medical record, and the examiner later gives the lack of a diagnosis of chloracne during service as his reason for finding no nexus to service. Part of the rationale provided in the examiner's ultimate opinion is that there was no separation physical provided, although the Veteran's April 1991 separation examination is of record and was in fact noted by the examiner in the Medical History Review. It is also unclear whether the examiner considered the Veteran's service in Vietnam and presumed exposure to Agent Orange, as the examiner stated at the start of the report that the Veteran served in the Gulf War and did not participate in combat, but at the end of the report in an opinion regarding posttraumatic stress disorders (PTSD), notes that the Veteran has PTSD due to combat experience in Vietnam. Additionally, the April 2013 examiner did not appear to accept the Veteran's lay statements regarding his skin symptoms in service and their continuity since that time, and instead relied on the lack of a diagnosis of chloracne in service to support his finding that there was no relationship between the current disorder and service. In Dalton v. Nicholson, 21 Vet. App. 23 (2007), the United States Court of Appeals for Veterans Claims found that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service symptoms and, instead, relied on the absence of evidence in the Veteran's STRs to provide a negative opinion. In this case, the Veteran has clearly and consistently described having skin problems that began during service and continued since that time, and the Board finds no reason to believe that the he is not a credible and competent witness to the condition of his own skin. See 38 C.F.R. § 3.159(a) (2012); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (A layperson is competent to report on the onset and continuity of current symptomatology.). The Veteran's lay statements are also corroborated by notations in his STRs, such as the October 1989 record of the Veteran reporting blistering with infection similar to that which he had experienced in Vietnam. As such, the April 2010 opinion is inadequate for deciding the appeal, and a remand for a new examination and opinion is necessary prior to deciding this claim. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection (as this claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO/AMC should obtain and associate with the claims file a copy of the notice of the date and time of the examination sent to him by the pertinent VA medical facility. The record also indicates that the Veteran has been receiving medical treatment for skin disorders at the Hampton VAMC. The claims file currently contains only his VA treatment records from to July 2005 to December 2009. As there may be more recent treatment records directly pertinent to the current issue, all outstanding VA treatment records from the Hampton VAMC should be obtained, to the extent available, and associated with the claims file. 38 U.S.C.A. § 5103A(c); 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). The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain from the Hampton VAMC all outstanding, pertinent records of skin treatment of the Veteran since December 2009. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) for requesting records from Federal facilities. All records received should be associated with the claims file. All attempts to obtain records should be documented in the file. 2. Arrange for the Veteran to undergo a VA examination performed by a dermatologist to determine the Veteran's current diagnoses pertaining to skin disorders and whether such disorders are related to service. The entire claims file must be made available to the examiner, and the examination report should include discussion of the Veteran's documented history, including all relevant STRs, and lay assertions. All appropriate tests and studies should be accomplished (with all findings made available to the examiner prior to completion of the report), and all clinical findings should be reported in detail. Based on examination findings, medical principles, and historical records, the examiner should identify any current skin disorders found on examination. The examiner should discuss the Veteran's previous diagnoses for chloracne, acne, punctate keratosis, dermatitis, and dyshidrosis/pompholyx, and eczema, and indicate/reconcile these various findings. It should be indicated whether the findings in service represent the early onset of any currently diagnosed disorder. Exposure to Agent Orange should also be discussed in terms of a potential etiology of any of the disorders. For every diagnosis found, the examiner should state whether it is at least as likely as not (50 percent or more probability) that the Veteran's disorder is a result of any incident in service, began to manifest during service, or is etiologically related to the Veteran's active duty service in any way. The reported symptoms of skin disease in service should be considered, and it should be discussed as to whether the in-service complaints may be indications of currently found pathology. In offering any opinion, the examiner must specifically acknowledge and discuss the Veteran's treatment for numerous skin diseases in service and his reports on ongoing similar symptomatology since that time. The examiner should set forth all examination findings, along with a complete rationale for the conclusions reached. If any requested opinion cannot be provided, the examiner should clearly state the reasons why. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications must be associated with the claims folder. He is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655. 4. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further adjudication. 5. After completing the requested actions, the RO/AMC should readjudicate the claim in light of all pertinent evidence. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a supplemental statement of the case, with appropriate time allowed for response. The Board intimates no opinion as to the outcome in this case by the action taken herein. 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). _________________________________________________ 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).