Citation Nr: 1323512 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 09-18 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for skin lesions, to include as due to herbicide exposure. 2. Entitlement to an initial rating greater than 30 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The issue of entitlement to a TDIU rating will be discussed in further detail below. The Veteran withdrew his request for a travel board hearing. See 38 C.F.R. § 20.704(e) (2012). Additional evidence was added to the record following the June 2010 Supplemental Statement of the Case (SSOC). The representative waived RO consideration of this evidence in its July 2013 Informal Hearing Presentation. See 38 C.F.R. § 20.1304 (2012). The Virtual VA eFolder has been reviewed. 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 Under the VCAA, VA has a duty to assist a veteran in the development of a claim. This includes obtaining records and providing a VA examination when necessary. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). The Veteran receives VA medical treatment. On review, VA medical records were last printed in May 2011 and Vet Center records were last received in August 2010. Additional relevant VA records should be obtained on remand. Skin lesions In March 2008, the RO denied entitlement to service connection for skin lesions due to herbicide exposure. The Veteran disagreed with the decision and subsequently perfected an appeal of this decision. The Veteran contends that he currently has skin lesions that are related to his service in Vietnam. In his July 2008 notice of disagreement, he reported that he was exposed to Agent Orange and received severe burns related to this exposure and sun exposure. In his May 2009 Form 9, he stated he was not saying that his skin lesions were caused by Agent Orange, but were a result of skin damage caused during his Vietnam service. The Veteran served in Vietnam during the Vietnam era and Agent Orange exposure is presumed. See 38 C.F.R. § 3.307(a)(6)(iii). Evidence of record shows that the Veteran receives dermatological treatment and has been diagnosed with granuloma faciale. The Veteran reports continued problems and the Board finds evidence of current disability. Review of service treatment records shows that he was treated for immersion foot, an infected finger, and cellulitis of the right arm. The claimed skin lesions are not specifically documented. Regardless, the evidence shows that the Veteran served in Vietnam and was awarded a Combat Action Ribbon. Pursuant to 38 U.S.C.A. § 1154(b) (West 2002), combat veterans may establish service incurrence of a disease or injury through satisfactory lay or other evidence which is consistent with the circumstances, conditions or hardships of service, even in the absence of official record of such incurrence. See also 38 C.F.R. § 3.304(d) (2012). The Veteran's reports of suffering various skin lesions while in a combat environment are consistent with the circumstances of his service and an in-service event or injury is established. The Veteran's reports are further corroborated by a statement from a registered nurse, D.S., who was a former hospital corpsman and reportedly treated the Veteran during service for blisters, open sores, and jungle rot. The Veteran has reported continuity of symptoms since service and the record contains medical articles suggesting a relationship between granuloma faciale and sun exposure. D.S., R.N., also opined that the Veteran's skin condition was a residual of Agent Orange exposure. A January 2008 addendum by a VA physician, however, notes that as far as they were aware, "there is no clear correlation between granuloma faciale and agent orange, dapsone, or antimalarial medications." In September 2011, the representative argued that VA failed in its duty to assist by not providing the Veteran a VA examination on this issue. On review, the Board agrees that a VA examination and medical opinion are needed. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examination must consider whether the claimed condition is related to Agent Orange exposure, regardless of whether the disability is listed as a disease presumptively associated with such exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). PTSD evaluation In March 2008, the RO granted service connection for PTSD and assigned a 30 percent evaluation effective December 27, 2007. The Veteran disagreed with the rating and subsequently perfected this appeal. VA records show treatment for PTSD, as well as depression and alcohol dependence stemming from PTSD. Vet Center records show that he experiences PTSD symptoms. The Veteran underwent a VA examination in February 2008 to determine the severity of his disability. In a February 2009 statement, the Veteran reported that his PTSD has gotten worse since he first sought help at VA. In his VA Form 9, the Veteran stated that his anxiety and panic attacks have increased since he began treatment at the Vet Center. The Veteran essentially argues that his PTSD symptoms have worsened since the February 2008 VA examination. Given his complaints and the length of time since the last examination, the Board finds that a current examination is needed. See 38 C.F.R. § 3.327 (2012); Green v. Derwinski, 1 Vet. App. 121 (1991). TDIU On VA examination in February 2008, the examiner stated that the Veteran's decision to take early retirement was at least as likely as not due to PTSD symptoms. In various statements, the Veteran reported that he left his job because he was overwhelmed by stress and fatigue and that he was no longer able to work. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased rating claim when such claim is raised by the record. On review, the issue of entitlement to a TDIU has been raised by the record and is for consideration. At this time, the Veteran does not meet the schedular requirements for a TDIU. See 38 C.F.R. § 4.16(a) (2012). The issues of entitlement to an increased initial rating for PTSD and entitlement to service connection for skin lesions are being remanded herein and are inextricably intertwined with the TDIU issue. Thus, it must be remanded as well. Further development, to include notice under the VCAA, is also needed. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should request relevant medical records from the Northport VA Medical Center for the period from May 2011 to the present. All records obtained must be associated with the claims file or Virtual VA eFolder. 2. The AMC/RO should also request medical records from the Babylon Vet Center for the period from August 2010 to the present. All records obtained must be associated with the claims file or Virtual VA eFolder. 3. If the AMC/RO cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AMC/RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 4. The AMC/RO should provide appropriate VCAA notice regarding the claim of entitlement to a TDIU. The Veteran should also be asked to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 5. The AMC/RO should schedule the Veteran for a VA skin examination to determine the nature and etiology of the claimed skin lesions. The claims folder must be available for review by the examiner. Additionally, all relevant medical records must be made available to the examiner for review, either in the Virtual VA eFolder, or if the eFolder is not available, then via paper copies. The examiner is advised that the claimant is a combat veteran and his reports of experiencing sunburns, blisters, sores, and jungle rot during his Vietnam service are accepted. Additionally, in-service Agent Orange exposure is presumed. The examiner should identify any currently diagnosed skin disorder. The examiner is further requested to opine whether it is at least as likely as not that any current skin lesion/disorder is related to active military service or events therein, to include sun exposure, Agent Orange exposure, and/or antimalarial medications. A complete rationale for any opinion expressed should be provided. 6. The AMC/RO should schedule the Veteran for a VA examination to determine the nature and severity of his service-connected PTSD. The claims folder must be available for review by the examiner. Additionally, all relevant medical records must be made available to the examiner for review, either in the Virtual VA eFolder, or if the eFolder is not available, then via paper copies. In accordance with the latest worksheets for rating PTSD, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of his PTSD. The examiner is also requested to address the impact of PTSD on the Veteran's ability to obtain and maintain substantially gainful employment. A complete rationale for any opinion expressed should be provided. 7. After the development requested has been completed, the AMC/RO should review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. If the reports are deficient in any manner, the AMC/RO should implement corrective procedures. 8. The Veteran is hereby notified that it is his responsibility to report for the examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2012). 9. Upon completion of the above development, and any additional development deemed appropriate, the AMC/RO should readjudicate the issues of entitlement to service connection for skin lesions, to include as due to herbicide exposure; and entitlement to an initial rating greater than 30 percent for PTSD. The issue of entitlement to TDIU must also be adjudicated. All applicable laws, regulations, and theories of entitlement should be considered. If the benefits sought on appeal remain denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ H. N. SCHWARTZ 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).