Citation Nr: 1323685 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 09-20 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a heart condition, to include atrial fibrillation, bradycardia, and sick sinus syndrome. 2. Entitlement to service connection for a skin condition, to include dermatitis, lichen simplex chronicus, actinic keratosis, seborrhea, and squamos cell carcinoma. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active service from July 1964 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied service connection for skin cancer. Additionally, in a December 2008 rating decision, the RO denied the claim of service connection for heart arrhythmia. The Veteran submitted Notice of Disagreements (NODS) with these determinations in October 2008 and December 2008 and perfected his appeal in May 2009. The Board recognizes that the RO characterized the Veteran's heart disability appeal as entitlement to service connection for atrial fibrillation/heart arrhythmia. However, a review of the record reflects that the Veteran has been diagnosed with other heart disabilities in his private and VA treatment records, to include sick sinus syndrome and bradycardia. The Board observes that VA has an obligation to liberally construe the pleadings of a claimant to discern all issues raised in the record. See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, in light of the Veteran's assertions, the Board will consider whether service connection is warranted for any current heart disabilities. For this reason, the Board finds that the Veteran's heart claim is more appropriately framed as the broader issue indicated on the title page of this decision, rather than as a specific condition. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. 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. (CONTINUED ON THE NEXT PAGE) REMAND A review of the record discloses further development is needed with respect to the Veteran's claims of entitlement to service connection for a heart condition and a skin condition. A. Heart Condition The Veteran contends that his heart condition is secondary to his service-connected diabetes mellitus. First, the Board will discuss entitlement to service connection on a presumptive basis. Certain Veterans-namely, those who served in Vietnam between January 9, 1962, and May 7, 1975-are presumed by law to have been exposed to herbicides during service. 38 U.S.C.A. § 1116. Generally, the presumption of herbicide exposure does not apply to Vietnam-era Veterans unless they served within the land borders of Vietnam during the prescribed period. Haas v. Peake, 525 F.3d 1168, 1172 (Fed. Cir. 2008) (holding that Veterans who served on ships off the coast of Vietnam but who never set foot within the land borders of Vietnam are not entitled to the presumption of herbicide exposure). Similarly, certain diseases are presumed by law to have been caused or aggravated by herbicide exposure. 38 U.S.C.A. § 1116; see also 38 C.F.R. §§ 3.307, 3.309. In August 2010, the Secretary expanded the list of diseases subject to that presumption, to include ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). 75 Fed. Reg. 53, 202 (August 31, 2010) (amending 38 C.F.R. § 3.309(e)). The Veteran's service personnel records show that he served in the Republic of Vietnam during the Vietnam era in 1966. There is no affirmative evidence in the record to establish that the Veteran was not exposed to herbicides during service. Therefore, he is entitled to a presumption of exposure to herbicide agents. However, even though it is presumed that the Veteran was exposed to herbicide agents while serving in Vietnam, in order for him to be entitled to presumptive service connection on the basis of that presumed Agent Orange exposure, the record must also establish that he has a disease to which this presumption applies. Unfortunately, heart arrhythmia, atrial fibrillation, sick sinus syndrome, and bradycardia are not on the list of presumptive conditions associated with exposure to Agent Orange or other herbicides. See Notice, 68 Fed. Reg. 27630-27641 (2003). Even though the presumptive service connection for a disability based on exposure to herbicides may not apply, however, does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which instead concerned exposure to radiation, are equally applicable in cases involving exposure to Agent Orange). In this case, given the conceded exposure to herbicides in service and the questionable etiology of the Veteran's heart conditions, the Board finds that an opinion as to direct service connection for the Veteran's heart conditions based on exposure to Agent Orange should be obtained. Additionally, the Veteran's submitted a July 2009 letter from his private physician. He reported that the Veteran had chronic atrial fibrillation and flutter. The physician concluded that he was unable to with confidence state that diabetes was a known cause of atrial fibrillation. The physician further stated that it was certainly affiliated with atrial fibrillation and certainly had an impact on how they managed the Veteran's atrial fibrillation. While the physician stated that the Veteran's diabetes mellitus impacted how his atrial fibrillation was managed, he did not specifically state whether the Veteran's service-connected diabetes mellitus aggravated any of his current heart conditions. Further, the Veteran was afforded a VA examination in February 2009. The VA examiner diagnosed the Veteran with atrial fibrillation, and tachybrady syndrome with sick sinus syndrome, and pacemaker implantation. The examiner concluded that the Veteran's atrial fibrillation was diagnosed and treated prior to his diagnosis of diabetes mellitus. The Veteran's pacemaker was inserted for sick sinus syndrome/tachybrady syndrome rather than for atrial fibrillation. There was no evidence in the claims file that diabetes mellitus had affected or aggravated the Veteran's heart condition. While the VA examiner stated a negative etiology opinion, it is unclear to the Board if this opinion was in relation to all of his diagnosed heart conditions, or just in relation to his atrial fibrillation, as referenced in the rationale of the opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that 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 an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided); Robinson v. Shinseki, 557 F.3d 1355 (2009); Combee v. Brown, 34 F.3d 1039 (1994). Therefore, the Veteran should be scheduled for a new VA heart examination to address direct service connection based on Agent Orange exposure and whether any of the Veteran's diagnosed heart conditions were caused and/or aggravated by his service-connected diabetes mellitus. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). B. A Skin Condition The Veteran contends that his skin conditions are due to Agent Orange exposure from his active duty service in Vietnam. As stated above, due to the Veteran's service in Vietnam, he is entitled to a presumption of exposure to herbicide agents. However, the Veteran's skin conditions, to include dermatitis, lichen simplex chronicus, actinic keratosis, seborrhea, and squamos cell carcinoma are also not on the list of presumptive conditions associated with exposure to Agent Orange or other herbicides. See Notice, 68 Fed. Reg. 27630-27641 (2003). The Veteran's private treatment records show that he has been diagnosed with and treated for dermatitis, lichen simplex chronicus, actinic keratosis, seborrhea, and squamos cell carcinoma. The VA has neither afforded the Veteran an examination nor solicited a medical opinion as to the onset and/or etiology of the Veteran's skin conditions. Given the conceded exposure to herbicides and the unclear etiology and onset of the skin conditions, a medical opinion regarding a diagnosis and etiology of the Veteran's skin conditions, to include exposure to Agent Orange, is therefore necessary to make a determination in this case. See 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, a remand is also necessary in order to obtain any outstanding private medical records. An April 1997 private treatment record documented that the Veteran had a history of atrial fibrillation dating back to the 1980s. The records request showed that records were only obtained dating back to January 1996. Because it appears that there may be outstanding private treatment records that may contain information pertinent to his claims, those records are relevant and should be obtained. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1) The RO/AMC should contact the Veteran and request that he provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any treatment records from any private medical providers, who have treated him for his skin and heart conditions. After the Veteran has signed the appropriate releases, those records not already associated with the claims file should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. Two attempts should be made to obtain relevant private records, unless a formal finding can be made that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). If such records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 2) After the foregoing, schedule the Veteran for a VA examination to determine whether any of his current heart conditions (to include atrial fibrillation, sick sinus syndrome, and bradycardia) are related to the Veteran's service. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All indicated studies should be performed, and all findings should be reported in detail. The examiner should diagnose the Veteran's current heart conditions. For each diagnosis, the VA examiner should provide an opinion as to whether it is at least as likely as not that the disorder is related to his active military service, to include as due to his presumed exposure to herbicides during service. For purposes of making this determination, the examiner should accept as true that the Veteran was exposed to herbicides during service. Additionally, the VA physician should provide an opinion as to whether it is at least as likely as not that the Veteran's currently diagnosed heart conditions were (i) caused and/or (ii) aggravated (i.e., permanently worsened beyond the natural progress of the disease) by his service-connected diabetes mellitus. In rendering these opinions, the examiner should acknowledge and discuss the July 2009 physician letter, the Veteran's lay statements, and any other relevant information. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3) Additionally, schedule the Veteran for a VA examination to determine whether any of his current skin conditions ( to include dermatitis, lichen simplex chronicus, actinic keratosis, seborrhea, and squamos cell carcinoma) are related to the Veteran's service. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All indicated studies should be performed, and all findings should be reported in detail. The examiner should diagnose the Veteran's current skin conditions. For each diagnosis, the VA examiner should provide an opinion as to whether it is at least as likely as not that the disorder is related to his active military service, to include as due to his presumed exposure to herbicides during service. For purposes of making this determination, the examiner should accept as true that the Veteran was exposed to herbicides during service. In rendering these opinions, the examiner should acknowledge and discuss the Veteran's lay statements and any other relevant information. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinions to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5) Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claims. If any issue is denied, the AMC should then provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. 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). These claims 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 (CONTINUED ON THE NEXT PAGE) 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. GIELOW Acting 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).