Citation Nr: 1323367 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-18 942A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a skin disorder, to include a skin rash and skin cancer. 2. Entitlement to service connection for heel bone spurs. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served in the United States Navy Reserve. He served on active duty from February 2003 to September 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied, in part, entitlement to service connection for skin cancer and for a skin rash. In a March 2008, the Veteran filed a notice of disagreement with the June 2007 RO decision, specifically alleging disagreement with the denial of service connection for skin rash. In a May 2009 Statement of the Case, the RO referred to the issue as entitlement to service connection for skin cancer. In the Veteran's substantive appeal, the Veteran again referred to the issue as service connection for a skin rash. In the VA Form 646, the Veteran's representative referred to the issue as service connection for skin cancer and attached internet articles discussing the relationship between deployment and skin cancer. The representative also urged that the issue be amended to read, "skin conditions." In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court of Appeals for Veterans Claims (CAVC) held that the scope of a particular disability claim includes any related disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. For judicial economy and in light of the procedural background in this case and Clemons, the Board has recharacterized the issue on appeal as entitlement to a skin disorder, to include skin rash and skin cancer. The Board notes that the Veteran also perfected appeals of the issues of entitlement to service connection for PTSD, tinnitus, and a heel bone spur from the same, June 2007 rating decision. During the appeal, the RO granted service connection for PTSD and tinnitus; therefore, those issues are no longer before the Board. 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 First, the RO has not investigated whether the Veteran was exposed to toxins during his service in Iraq. Specifically, the Veteran contends that he was exposed to vehicle and truck exhaust fumes, sand dust, smoke from oil fire, burn pits and JP8 fuels. See Veteran's representative statement dated in June 2013. The Veteran also reported having to put on his gas mask because of alerts two times and donned his MOPP gear over garments 14 times. Id. The Veteran's representative submitted an article showing that the Veteran may have been exposure to the toxic carcinogen, Sodium Dichromate (CAS 10588-01-9). The Board finds that further development should be done to determine if there is any documentation showing that the Veteran was exposed to particular toxins during his service in Iraq. Second, the Board finds that the VA examinations conducted for heel bone spur and skin cancer are inadequate. In April 2011, the Veteran was afforded a VA examination to determine whether the Veteran's current foot disorder was related to his military service. The examiner diagnosed the Veteran with calcaneal spurs on both feet but failed to provide an opinion as the relationship between his calcaneal spurs and the Veteran's active military service. For this reason, the case must be remanded in order to obtain a nexus opinion. In December 2011, the Veteran was afforded a VA examination for a skin rash. As noted above, the Veteran's claim has been expanded to include consideration of both a skin rash and skin cancer. Because the examiner only appears to obtain a history from the Veteran for his skin rash and not skin cancer, a new VA examination is warranted to determine whether any current skin disorder, including skin cancer, is related to the Veteran's active military service. In addition, the December 2011 examiner found no current skin disorder and therefore, did not provide an opinion as to whether any current skin disorder was related to the Veteran's active military service. However, numerous VA treatment records dated in August 2006, September 2006, February 2007, and March 2007 show treatment for skin disorders, including eczema dermatitis, seborrheic keratosis, papule (rule out neoplasm basal cell carcinoma), and tinea pedis. Also, a March 2007 treatment record notes that the Veteran had a history of basal cell carcinoma in 2005. To be present as a current disability, there must be evidence of the condition at some time during the appeal period. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). As there appears to be some skin disorders diagnosed and treated during the appeal period, the Board finds that a new VA examination and opinion is needed. As the Veteran has been treated at the VA, all recent VA treatment records should be obtained and associated with the claims file prior to scheduling VA examinations. 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 all recent VA treatment records and associated them with the claims file. 2. Request information from the Department of Defense or any other relevant federal agency as to whether the Veteran was exposed to toxins during his active military service from February 2003 to September 2003 in Iraq. Specifically, request information as to whether the Veteran was exposed to toxic carcinogen (Sodium Dichromate (CAS 10588-01-9)), smoke from oil fire, burn pits and JP8 fuels. 3. After the development directed in paragraphs 1 and 2 has been completed to the extent possible, schedule the Veteran for a VA examination for his claimed skin rash and skin cancer, including tinea pedis. The claims folder, to include any pertinent evidence stored electronically, must be made available to and reviewed by the examiner, and any indicated studies should be performed. The examiner is asked to identify, by diagnosis, whether the Veteran has manifested any type of skin disorder since the time he filed his claim in December 2006. If no such disorder is shown on examination, warranting no diagnosis, the examiner should specifically make such determination for the record and reconcile his or her finding with the remainder of the evidence of record. The examiner is asked to address the following question: Is it at least as likely as not (50 percent probability or more) that any type of diagnosed skin disorder (diagnosed at any time since December 2006), including skin cancer, had its onset, or is otherwise etiologically related to, his period of active service from February 2003 to September 2003, to include any confirmed exposure to toxins. The examiner is advised that the Veteran is competent to report injuries and symptoms in service, regardless of the contents of the service treatment records, and that his reports must be considered. An explanation for any opinion expressed is required. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. After paragraph 1 above has been accomplished, to the extent possible, afford the Veteran a VA examination of the feet. The claims folder, to include any pertinent evidence stored electronically, must be made available to and reviewed by the examiner. All tests and studies deemed necessary, including x-rays, should be performed. The examiner should then render an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that has any foot disability is related to the Veteran's period of active service from February 2003 to September 2003. The examiner must explain the underlying reasons for all opinions provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ BETHANY L. BUCK 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).