Citation Nr: 1325150	
Decision Date: 08/08/13    Archive Date: 08/13/13

DOCKET NO.  09-43 177	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.  

2.  Entitlement to service connection for a psychiatric disability, to include a major depressive disorder, a generalized anxiety disorder, an adjustment disorder with mixed mood, and dysthymia.  

3.  Entitlement to service connection for rosacea, also claimed as chloracne, to include as due to exposure to herbicides.  

4.  Entitlement to service connection for sleep apnea.  

5.  Entitlement to service connection for hypertension.  

6.  Entitlement to an increased rating for a low back disability.




REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Timothy D. Rudy, Counsel


INTRODUCTION

The Veteran served on active duty from July 1968 to July 1972.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in November 2008, October 2010 and February 2013 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Paul, Minnesota.  

In May 2013, the Veteran testified before the undersigned Veterans Law Judge during a video conference Board hearing.  A transcript of the hearing has been associated with the claims file.  At the time of the hearing the Veteran and his representative submitted additional evidence with a waiver of initial RO consideration of any new evidence.  Therefore, the Board will accept that new evidence.  38 C.F.R. § 20.1304(c) (2012).  
 
The issues of entitlement to service connection for rosacea, sleep apnea, hypertension, and a psychiatric disability are REMANDED to the RO via the Appeals Management Center in Washington, D.C.  
FINDINGS OF FACT

1.  Resolving all reasonable doubt in the Veteran's favor, bilateral hearing loss is as likely as not related to service.  

2.  In July 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through the authorized representative, that a withdrawal of the appeal on the issue of entitlement to an increased rating for a low back disability was requested.

CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385 (2012).  

2.  The criteria for withdrawal of an appeal by the authorized representative of the issue of entitlement to an increased rating for a low back disability have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

Service Connection

Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).  

Where a veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and certain chronic diseases, including sensorineural hearing loss, become manifest to a degree of 10 percent within one year from the date of termination of service, that chronic disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  

Generally, in order to prevail on the issue of service connection on the merits, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Hickson v. West, 12 Vet. App. 247 (1999).  A veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability.  Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000).  

In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d) (2012).  Sensorineural hearing loss is a chronic disease listed under 38 C.F.R. § 3.309(a) because it is considered an organic disease of the nervous system.  Therefore, 38 C.F.R. § 3.303(b) applies.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a chronic disease in service or continuity of symptoms since service, the disease shall be found to have been incurred in service.  For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  

When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination medical in nature and is capable of lay observation.  The Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record.  Every item of evidence does not have the same probative value.  

The Veteran claims service connection for bilateral hearing loss.  In his testimony and written submissions, he contends that he suffered acoustic trauma while in service when he served on two ships without hearing protection, had to fire on potential sappers, and was in close proximity to gun turrets and night operations on the flight deck of an aircraft carrier.  The Veteran has also asserted that he had little noise exposure after service.  

Hearing loss will be considered to be a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385 (2012).  When audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a disability at that time, the Veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  Hensley v. Brown, 5 Vet. App. 155 (1993).  

The threshold for normal hearing is from 0 to 20 decibels and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The regulations  operate only to establish when a hearing loss can be service connected.  38 C.F.R. § 3.385 (2012); Hensley v. Brown, 5 Vet. App. 155 (1993).  Regardless of when the criteria of 38 C.F.R. § 3.385 are met, a determination must be made as to whether the hearing loss was incurred in or aggravated by service.

The Veteran's service separation form is negative for any indication that the Veteran received any awards or decorations indicative of participation in combat.  That form shows that the Veteran was a bookkeeper while in service.  

The service medical records are negative for any indication of hearing loss.  Audiogram findings at the time of the enlistment examination in March 1968, in pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
no figure
0
LEFT
        0
0
0
no figure
        0

Audiogram findings at the time of the discharge examination in June 1972, in pure tone thresholds, in decibels, were as follows:  




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
0
0
5
LEFT
       10
10
0
5
      10


The Veteran's service representative argues in his May 2010 filing that the Veteran's audiogram results at enlistment and discharge were not properly converted from the old standard to the currently used standard.  However, the figures do appear to be based on International Standards Organization [ISO] Standards.  Prior to November 1967, audiometric results were reported in American Standards Association [ASA] Standards in service medical records, but the entrance and separation audiograms were done in March 1968 and June 1972.  

In his September 2008 claim for service connection, the Veteran stated that he was required to maintain his ability to use and fire small arms weapons while in service and that he was located next to a 50 millimeter gun turret which fired practice rounds.  He claimed that he and his fellow sailors were never given hearing protection.  He stated that since service he continued to have hearing loss.  

In his December 2008 notice of disagreement, the Veteran contended that he left service with a documented hearing loss.  

The Veteran underwent a VA audiological examination in November 2008.  He complained of difficulty understanding conversational speech, especially with backgrounds of noise.  He told the examiner that he was exposed to weapons noise and flight line noise while in service.  He also mentioned exposure to infrequent construction and plumbing noises and to infrequent firearm hunting noise post-service.  Audiogram findings, in pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
20
30
45
45
LEFT
         5
10
25
45
       45

Speech recognition scores on the Maryland CNC Word List were 92 percent in the right ear and 94 percent in the left ear.  The diagnosis was bilateral sensorineural hearing loss.  The VA examiner opined that hearing loss was not likely related to noise exposure during service because hearing was within normal limits upon separation, with no significant threshold shifts bilaterally when compared to the enlistment audiogram.  However, the examiner opined that tinnitus was at least as likely as not caused by or a result of military noise exposure.  Service connection for tinnitus was granted in a November 2008 rating decision.

A private audiogram dated in January 2010 is of record, but the results of the audiogram are in graphical form and are not numerically interpreted, so it is not technically adequate to determine whether the Veteran had a bilateral hearing loss disability meeting the requirements of 38 C.F.R. § 3.385.  However, it is clear from the chart in that document that the Veteran had a bilateral hearing loss disability as measured by VA with readings of at least 30 decibels at the 1000, 3000, and 4000 Hertz levels in the right ear and of at least 40 decibels at the 2000, 3000, and 4000 Hertz levels in the left ear.  That document contains no opinion regarding the etiology of any hearing loss.

In May 2010 correspondence, Dr. T.J.F. noted that he saw the Veteran in January 2010 and that the audiogram showed a sloping sensorineural hearing loss in each ear.  He also noted the Veteran's substantial exposure to guns on ships during the Vietnam War and some recreational noise exposure as a hunter after service.  Dr. T.J.F. stated that it was his impression that the Veteran had sensorineural hearing loss, likely noise related, and that his service time was certainly a contributing causative component.  

In a signed statement received in July 2011, the Veteran noted that while in service, apparently during his tour of duty in Vietnam, he was required to fire his weapon in order to deter sappers from mining the ship.  

In a March 2011 addendum, a VA physician other than the VA audiologist who had conducted the November 2008 VA audiological examination, reviewed the prior examination to clarify the opinion of the November 2008 VA audiologist.  The March 2011 VA reviewer explained that evidence from laboratory studies in humans and animals was sufficient to conclude that the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure, with the length of recovery, whether partial or complete, related to the level, duration, and type of noise exposure.  Most recovery to stable hearing thresholds occurred within 30 days.  In addition, the examiner stated that current science indicated that the mechanisms and processes involved in recovery from noise exposure suggested that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure was extremely unlikely.  The examiner stated that the basic conclusion from a review of research in the area was that individuals with previous noise-induced hearing loss were neither more nor less susceptible to subsequent noise-induced hearing loss than individuals without preexisting hearing loss.  With normal hearing upon discharge, there was no evidence of hearing damage due to military noise exposure.  The examiner found that any worsening of hearing from the time of discharge to the present was due to noise exposure between the time of discharge to the present.  Therefore, based on research, the VA reviewer opined that the Veteran's current hearing loss was not due to or aggravated by his service noise exposure.  

In a statement received in December 2011, the Veteran's former spouse stated that she and the Veteran were together during his Navy service and afterwards.  She stated that she noticed his hearing declined, more so after his last deployment.  

In a December 2011 statement from Dr. K.C., the Veteran's private physician since 2002, sensorineural hearing loss, noise-related, was listed as one of the diagnoses.  Dr. K.C. stated that diagnosis preceded 2002.  

In August 2012 correspondence, Dr. T.J.F. explained that he provided a hearing evaluation for the Veteran and that the audiogram showed a clinically significant bilateral sensory neural hearing loss consistent with noise exposure.  Dr. T.J.F. noted that while the Veteran's primary work in service was clerical, he served approximately one and one-half years in Vietnam with the Navy where he was regularly on deck without hearing protection while large guns were firing.  The doctor noted that after service the Veteran worked warehouse, engineering, and plumbing jobs in supervisory roles with minimal noise exposure, but that his family history was positive for some mild hearing loss in his father.  Dr. T.J.F. stated that noise-induced hearing loss often develops years after exposure and that the fact that the Veteran had a normal or near normal audiogram at discharge did not rule out his service noise exposure as a significant causative agent for his hearing loss.  Dr. T.J.F. explained further that with the Veteran's hearing history otherwise essentially negative, one had to assume that his service experience was the major cause for his present hearing loss.  

In a signed statement received in October 2012 from R.D., who served with the Veteran aboard the USS Westchester County in late 1969 and 1970, it was noted that their primary mission was to support United States and South Vietnamese forces in the Mekong Delta area.  R.D. stated that included gunfire support using three gun turrets with twin 3-inch 5-caliber guns.  R.D. stated that the Veteran was a lookout and was above deck and in close proximity to the guns and the resulting noise when they were fired, often two to three hours at a time.  R.D. explained that he suffered a ruptured ear drum due to the concussions and expected that the Veteran would have hearing issues as well.  

During his May 2013 Board hearing and in a signed statement received that month, the Veteran claimed that in service while on watch, members of his unit were required to fire their weapons frequently to deter sabotage and prevent sappers from mining the ship.  He stated that he was on the deck of an aircraft carrier during cannon fire and that he also fired the ship's 50-caliber gun.  He said that he did not wear hearing protection while in service and that he had no work over the years where noise exposure was an issue.  At the hearing he also noted that the berthing area on the carrier was in the upper deck and sleeping crewman had to put up with the noise of nearby night operations launching planes.  

The Board's review of the medical and lay evidence of record indicates that the Veteran's current bilateral hearing loss is due to service and, thus, service connection is warranted .  The Veteran has been diagnosed with bilateral hearing loss that meets the provisions of 38 C.F.R. § 3.385 to be considered a disability in the November 2008 VA examination.  The November 2008 VA audiogram from that examination and the January 2010 private audiogram both show bilateral hearing loss disability.  

The Veteran's service medical records are silent as to any documented hearing loss disorder during service.  However, the Board finds that the Veteran's lay evidence of exposure to loud noise during service, from proximity to gun turrets on an aircraft carrier during wartime to firing on potential sappers and berthing next to the flight line, all without hearing protection, is competent and credible evidence to show in-service occurrence of acoustic trauma.  His service activities on board two ships and subsequent hearing complaints are capable of lay observation and are consistent with his duties.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  

After reviewing the lay and medical evidence of record, the Board also finds that the preponderance of the evidence is, at the very least, in equipoise as to whether the Veteran's current bilateral hearing loss disorder is the result of noise exposure during service.  While the examiner who conducted the VA audiological examination in November 2008 stated that any current hearing loss was less likely than not related to the Veteran's time in service, and a subsequent VA reviewer amplified that opinion, the private audiologist of record offered a positive nexus opinion in two letters.  

Both the November 2008 VA examiner and the March 2011 VA reviewer opined that service connection should not be awarded because the Veteran's hearing was within normal limits at the time of his separation from service.  However, service connection for hearing loss cannot be denied solely because there was no evidence of hearing loss during active duty or at separation.  Hensley v. Brown, 5 Vet. App. 155 (1993); 38 C.F.R. § 3.304(d) (2012).  The Veteran has been granted service connection for tinnitus due to exposure to acoustic trauma in service.  

In addition, the private opinion of Dr. T.J.F. cannot be considered deficient merely because he did not review the Veteran's service treatment records.  Gardin v. Shinseki, 613 F.3d 1374 (Fed. Cir. July 2010); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Thus, the private medical opinions of Dr. T.J.F. are competent and credible medical evidence.  

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence which satisfactorily proves or disproves the claim.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board finds that the lay and medical evidence is, at the very least, in equipoise as to the question of whether the Veteran's hearing loss is related to service.  The testimony of the Veteran and the lay evidence of his service comrade and wife, in combination with the corroborating private audiological nexus opinion, are sufficient to provide evidence of a nexus, or relationship, between the Veteran's current bilateral hearing loss and his period of active service.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Barr v. Nicholson, 21 Vet. App. 303 (2007).  Therefore, the Veteran has established a link between his hearing loss and service.  

Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for the Veteran's hearing loss disability.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for bilateral hearing loss is granted.  

The appeal on the issue of entitlement to an increased rating for a low back disability is dismissed.


REMAND

Unfortunately, a remand is required for the remaining issues on appeal.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.  38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012).  VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012).  

Concerning the Veteran's claim for service connection for a psychiatric disability, the Board notes that no psychiatric abnormalities were noted on either the Veteran's enlistment or discharge examinations.  However, the service medical records show that in February 1971 the Veteran underwent a psychiatric consultation due to a request for a humanitarian transfer.  One service medical record noted anxiety or depression as a result of his situation.  He was diagnosed with an emotionally immature personality, existing prior to entry into service, with situational anxiety reaction.  

Service connection can be granted for a preexisting disease considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease.  38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2012).  

A preexisting disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity.  The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of a disability.  Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2012).  

A finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease.  Furthermore, temporary or intermittent flare-ups of a preexisting disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens.  Jensen v. Brown, 4 Vet. App. 304 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991).  

Because this appeal involves the potential aggravation of a preexisting disorder and the presumption of soundness at enlistment, the usual standard of burden of proof applicable to a direct service connection claim is replaced by the clear and unmistakable evidence standard in that it must be shown by clear and unmistakable evidence that a disability preexisted service.  Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (rebuttal of presumption of sound condition requires clear and unmistakable evidence both that the condition preexisted service and that it was not aggravated by service).  

The Veteran was provided a VA mental disorders examination in September 2010.  The examiner noted that the Veteran had some mental health treatment in the past 15 to 20 years and had worked on issues of depression over the past 10 years.  After a mental status evaluation, the VA examiner diagnosed a recurrent moderate major depressive disorder and opined that it was less likely as not related to service.  The examiner stated that the Veteran was anxious and frustrated in service and not so much depressed.  

The Board must find that medical opinion inadequate because while the examiner provided an opinion regarding whether direct service connection for a psychiatric disorder was appropriate, the examiner did not address whether there was clear and unmistakable evidence of a preexisting psychiatric disorder that was not aggravated during active duty.  In addition, the examiner did not account for years of medical evidence found in the claims file indicating that the Veteran has been diagnosed with various other psychiatric disorders and failing to explain why they were not included in his own diagnosis.  Those records show diagnoses for dysthymia, generalized anxiety disorder, major depression with somnolence, adjustment disorder, and anxiety.  In December 2011, a private care provider, Dr. K.C., noted a diagnosis of depression not otherwise specified following service.  Therefore, as regards the psychiatric disorder claim, the record does not contain an adequate examination either in favor of or opposed to the Veteran's claim for service connection.  When an examination report is inadequate, the Board should remand the case for further development.  Bowling v. Principi, 15 Vet. App. 1 (2001).  

Therefore, on remand, the Veteran should be scheduled for a VA examination of his claimed mental disorders to obtain a medical opinion as to whether a preexisting psychiatric disorder was aggravated during his period of active duty or whether any currently diagnosed psychiatric disorder was related to his period of active duty.  

Concerning the Veteran's claims for service connection for rosacea, sleep apnea, and hypertension, the Board notes that both the Veteran and his representative have maintained that those claims should also be adjudicated as secondary to his depression.  The law provides that secondary service connection shall be awarded when a disability is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a) (2012); Libertine v. Brown, 9 Vet. App. 521 (1996); Harder v. Brown, 5 Vet. App. 183 (1993).  Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable.  Establishing service connection on a secondary basis therefore requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service connected disability.  38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995).  

As the psychiatric disability claim is being remanded for further development, and secondary service connection is not warranted for the other claims unless the Veteran is service connected for depression or some other psychiatric disorder, they are inextricably intertwined with the outcome of the psychiatric disorder claim.  The appropriate remedy where a pending claim is inextricably intertwined with another issue is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  

Therefore, on remand, after adjudicating whether the Veteran is entitled to service connection for an acquired psychiatric disorder, the claims for service connection for rosacea, for sleep apnea, and for hypertension, to include as secondary to his service-connected psychiatric disorder, should be readjudicated.  The Board finds that the Veteran is entitled to an examination of both his skin disability and hypertension claims.  

Concerning the Veteran's claim for service connection for rosacea, also claimed as chloracne, to include as due to exposure to herbicides, the Board notes that the service medical records are negative for any complaint of, or treatment for, a skin disability.  However, mild facial acne was noted in a September 1972 VA examination within months of discharge.  In addition, there is evidence of record suggesting that the Veteran served aboard a LST in the inland waterways of South Vietnam during that war, the USS Westchester County.  Therefore, VA has conceded the Veteran's exposure to herbicides.  

There is no evidence in the record that the Veteran has never been diagnosed with chloracne, and his diagnosed rosacea, facial eczema, and seborrheic dermatitis are not eligible conditions for presumptive service connection as a result of exposure to herbicides.  38 C.F.R. § 3.309(e) (2012).  A claimant may establish service connection for diseases not listed as presumptive based on exposure to herbicides with proof of actual direct causation.  Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  

A medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability.  38 C.F.R. § 3.159(c)(4) (2012); Charles v. Principi, 16 Vet. App. 370 (2002).  

Without further clarification, the Board is without the medical expertise to ascertain whether the Veteran's current rosacea or skin disability is related to service, including exposure to herbicides, or is secondary to a psychiatric disability.  The Veteran's private physician, Dr. K.C., noted a diagnosis of rosacea at times exacerbated by stress in a December 2011 submission.  No VA examination of his skin disability claim has ever been provided.  The Board finds there are sufficient reasons to warrant a VA examination and medical opinion on remand.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  On remand, therefore, a VA examination and medical opinion should be obtained.  The VA examiner should opine on whether any current skin disorder is more likely than not related to his period of active service, to include exposure to herbicides during his tour of duty in Vietnam, or is secondary to or aggravated by a psychiatric disorder.  

Concerning the Veteran's claim for service connection for hypertension, the Board notes a blood pressure reading of 122/94 at the time of his discharge examination in June 1972.  However, there is no evidence the Veteran was ever diagnosed with hypertension until many years after discharge.  

Without further clarification, the Board is without the medical expertise to ascertain whether any current hypertension is related to service, or is secondary to a psychiatric disability.  No VA examination of the hypertension claim has been provided.  The Board finds there are sufficient reasons to warrant a VA examination and medical opinion on remand.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  On remand, therefore, a VA examination and medical opinion should be obtained.  The VA examiner should opine on whether any current hypertension is more likely than not related to active service, to include as secondary to any psychiatric disability that may be service-connected.  

On remand, the all outstanding private and VA medical records related to the Veteran's claims which are not already in the claims file should be obtained.  

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and his representative and ask them to specify all private and VA medical care providers who treated him for any skin, sleep apnea, hypertension, and psychiatric disabilities and obtain those records.  Of particular interest are any outstanding private treatment records from psychiatric treatment at a Superior, Wisconsin, clinic the Veteran noted in a September 2012 filing, and all VA treatment records since January 2013, from either the Minneapolis VAMC or the VA Twin Ports clinic.  All attempts to procure records should be documented in the file.  

2.  After the development requested above has been completed, schedule the Veteran for a VA examination with an examiner who has not previously examined him.  The examiner must review the claims file and must note that review in the report.  A complete rationale for all opinions and conclusions reached should be provided.  All necessary tests and studies shall be conducted.  The examiner shall address the following opinion requests:

a) Did any psychiatric disorder clearly and unmistakably manifest before the Veteran entered active duty service in July 1968?  

b) If so, is there any evidence that symptoms of the psychiatric disorder were manifested during the Veteran's period of active duty (from July 1968 to July 1972)? 

c) If so, were these manifestations clearly and unmistakably the natural progression of the disease?  

d) Is it at least as likely as not (50 percent probability or greater) that any current psychiatric disability was incurred in or otherwise related to the Veteran's active duty from July 1968 to July 1972, to include his complaints and consultation during service?  

e) If the examiner determines that the Veteran has a preexisting psychiatric disability aggravated during service, or a current psychiatric disability related to service, then the examiner is requested to opine whether it is at least as likely as not (50 percent probability or greater) that psychiatric disability caused or aggravated the Veteran's current sleep apnea.  

3.  Schedule the Veteran for a VA examination to determine the etiology of any diagnosed skin disability.  The examiner must review the claims file and must note that review in the report.  A complete rationale for all opinions and conclusions reached should be provided.  Following a review of the claims file and examination of the Veteran, the examiner shall offer opinions as to:

a) Diagnose all current skin disabilities, such as rosacea, facial eczema, and seborrheic dermatitis, and state whether a diagnosis of chloracne is warranted.

b) Is it at least as likely as not (50 percent probability or greater) that any currently manifested skin disability is etiologically related to service, to include as due to exposure to herbicides during service in Vietnam? 

c) Is it at least as likely as not (50 percent probability or greater) that any currently manifested skin disability was caused by or aggravated by a psychiatric disability? 

4.  Schedule the Veteran to for a VA examination to determine the etiology of any hypertension.  The examiner must review the claims file and must note that review in the report.  A complete rationale for all opinions and conclusions reached should be provided.  Following a review of the claims file and examination of the Veteran, the examiner shall offer opinions as to:

a) Is it at least as likely as not (50 percent probability or greater) that any current hypertension is etiologically related to service, to include the blood pressure reading of 122/94 at separation from service? 

b) Is it at least as likely as not (50 percent probability or greater) that any current hypertension was caused by or aggravated by a psychiatric disability?

5.  Then readjudicate the claims.  If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then, return the claim to the Board

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).  

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).  



______________________________________________
HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs