Citation Nr: 1323832 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 10-06 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for skin disorder claimed as chloracne, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from November 1967 to October 1969. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). VA must provide a VA medical examination or medical opinion when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See McClendon v. Nicholson, 20 Vet App. 79, 81 (2006). The Veteran contends that he has chloracne due to exposure to an herbicide agent in service. He contends that he was treated for facial acne in service, that he was evaluated by VA in 1970 for facial acne and facial scarring, and that the scarring and acne are still present. As the records reflect that the Veteran had active service in the Republic of Vietnam, he is presumed to have been exposed to herbicides. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii)(2012); VAOPGCPREC 27-97. Chloracne is on of the diseases listed at 38 C.F.R. § 3.309(e) (2012) for which presumptive service connection is provide based on in-service herbicide exposure. 38 C.F.R. § 3.307(a)(6)(ii) (2012). On the question of in-service injury, disease, or event, the record shows that the Veteran served in Vietnam between November 1967 to October 1969; thus, he is presumed to have been exposed to herbicides. On the question of in-service injury, disease, or event, service treatment records show that the Veteran was seen in dermatology for a papular eruption below the chin in service in December 1969. On the question of current disability, there is some evidence of post-service findings, and the Veteran has asserted that he has current disability of acne or chloracne; however, the evidence does not show a diagnosed disability during the pendency of the claim for service connection. See McClain v. Nicholson, 21 Vet. App. 319 (2007). A May 1970 VA examination shows that the Veteran was evaluated for burn scars on the face (for which he is currently service-connected), due to a grenade explosion, and a later November 1970 VA examination identified the presence of a "giant comodo" on the left cheek. Private treatment records reflect a post-service history of treatment for acne vulgaris, and the Veteran has reported continuing dermatology treatment. As it is unclear whether the Veteran has a currently diagnosed disability of the skin, whether acne vulgaris, chloracne, or otherwise, an examination is needed. As he is presumed to have been exposed to herbicides in service, the mere diagnosis of chloracne would serve as the basis for a grant of presumptive service connection for chloracne based on the in-service herbicide exposure; therefore, an examination is warranted to ascertain the current nature of skin disorder. Additionally, the Veteran has contended that his current skin disorder, which he characterizes as acne or chloracne, may be associated with service, either because of the presumed herbicide exposure or is the same disorder manifested by papules that was symptomatic and treated in service. The Veteran has not been afforded a VA examination to help determine if he has a current disability of the skin, including the claimed chloracne. For these reasons, the Board finds that a remand for a VA examination is necessary to assist in determining if the Veteran has a current diagnosis of chloracne or other acneform diseases consistent with chloracne, or if he has a current skin disability, to include acne vulgaris, that is etiologically related to findings in service. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain a VA dermatology examination to assist in determining if the Veteran has currently diagnosed chloracne or other skin disability that is etiologically related to service. The relevant documents in the claims folder should be made available for review in connection with this request. The VA examiner should identify all currently diagnosed skin disorders and should offer the following opinions: a. Does the Veteran have a current diagnosis of chloracne or other acneform diseases consistent with chloracne? If so: i. Is it at least as likely as not (a 50 percent or greater probability) that chloracne manifested in service or within one year of the last herbicide exposure in service (June 1969)? ii. Is it at least as likely as not (a 50 percent or greater probability) that chloracne is otherwise related to herbicide exposure in service? The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. b. For any diagnosed skin disability that is not chloracne, is it at least as likely as not (a 50 percent or greater probability) that a currently diagnosed skin disability, to include acne vulgaris, began during service or is otherwise related to a papular eruption or herbicide exposure in service? In rendering the opinion, the examiner should address relevant findings of record including, specifically, service treatment records that show that the Veteran was treated for papular eruption below the chin in service (December 1969), and he had a "giant comodo" indentified on the left cheek approximately one year post-service (VA examination in November 1970). The examiner should provide a rationale for his or her opinion with reference to the evidence of record. Citation to medical authority/treatise would be helpful. 2. After all development has been completed, the RO/AMC should readjudicate the issue of service connection for skin disorder including chloracne, to include as due to herbicide exposure. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case, and should be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of this claim. See 38 C.F.R. § 3.655 (2012). The Veteran 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). _________________________________________________ J. PARKER 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).