Citation Nr: 1325292 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 11-01 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for chloracne, to include as due to Agent Orange exposure. 2. Entitlement to service connection for a skin disorder, other than chloracne, to include on a secondary basis and as due to Agent Orange exposure. 3. Entitlement to an initial evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 to December 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from April 2010 and a September 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In June 2011, a Travel Board hearing before the undersigned Veterans Law Judge was held at the RO. A transcript of that hearing is of record. A review of the Virtual VA paperless claims folder does not reveal any additional documents pertinent to the claim at hand. The Board notes that in his December 2009 claim, the Veteran requested service connection for chloracne. However, during the June 2011 hearing, the Veteran and his representative, articulated that the Veteran's symptomatology involves a skin disorder of the belt line and back, diagnosed as chloracne, as well as a skin disorder which manifests as a rash on his extremities. The Veteran's claimed symptomatology has been diagnosed as chloracne on his beltline and back and as neurodermatitis on his legs. In being cognizant of the Court of Appeals for Veterans Claims (Court) holding that VA should consider alternative current conditions within the scope of the filed claim, the Board finds that other related diagnoses might be considered as part of the Veteran's current claim on appeal. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board has recharacterized the issues on appeal as stated on the title page. This will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. As for the issue of entitlement to an initial evaluation in excess of 50 percent for service-connected PTSD, the Board is mindful that it has not been formally certified on appeal. Nevertheless, the record reflects that the Veteran has filed a timely Notice of Disagreement (NOD) with the initial 50 percent rating assigned in the September 2010 rating decision, which has yet to be addressed in a Statement of the Case (SOC). Accordingly, the Board finds it necessary to assume jurisdiction over this claim for the limited purpose of ensuring that a SOC is issued. See Manlincon v. West, 12 Vet. App. 238 (1999). The issues of entitlement to service connection for a skin disorder, other than chloracne, to include on a secondary basis and as due to Agent Orange exposure, and entitlement to an initial evaluation in excess of 50 percent for service-connected PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran served in Vietnam and is presumed to have been exposed to herbicides during his period of service. 2. Affording the Veteran the benefit of the doubt, his chloracne is presumed due to his exposure to herbicides in Vietnam. CONCLUSION OF LAW Chloracne may be presumed to be the result of herbicide exposure during active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the fully favorable finding with regard to the claim for service connection, no further discussion of compliance with the duties to notify and assist is warranted at this time. Analysis The Veteran asserts that he has chloracne which is due to in-service herbicides exposure. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA law and regulations provide that a chronic, tropical, or prisoner-of-war related disease, or a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 will be considered to have been incurred in or aggravated by service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than the ones listed in 38 C.F.R. § 3.309(a) will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116; 38 C.F.R. § 3.307(a). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. If a veteran, who served in the Republic of Vietnam was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service- connected if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), type II diabetes, and chronic lymphocytic leukemia. 38 C.F.R. § 3.309(e). On August 31, 2010, VA published a final rule amending 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents. 75 Fed. Reg. 53202. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In Barr, the Court emphasized that 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. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports the presence or absence of the alleged symptomatology. However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology. See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson not competent to diagnose a form of cancer). VA has defined competent lay evidence as any evidence not requiring that the proponent have specialized education, training or experience. 38 C.F.R § 3.159(a)(1). Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a layperson. Id. Further, competent medical evidence is defined as evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. 38 C.F.R § 3.159(a)(2). The facts of this case may be briefly summarized. The Veteran's DD Form 214 shows that the Veteran was separated from service in December 1971 and his last duty assigned was in Vietnam (January 15, 1971 to December 22, 1971). The Veteran has provided credible lay evidence, in statements to treatment providers dated as early as August 1991, testimony during the June 2011 Board hearing, and written statements, that he has continuously experienced outbreaks of chloracne symptomatology involving the belt line and back since approximately 6 months after his discharge from service. During an August 2010 VA dermatology consultation, the examining dermatologist diagnosed the Veteran with mild acne lesions on the belt line and scars from such lesions on the upper back, which the dermatologist found were compatible with chloracne. The Board finds that there is both competent and credible lay evidence that the Veteran has experienced recurrent outbreaks of chloracne since approximately 6 months after his exposure to herbicides and discharge from service, and the August 2010 VA dermatologist concluded that the lesions on the Veteran's belt line and back are compatible with chloracne. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran has chloracne which is presumed due to his exposure to herbicides in Vietnam. Thus, service connection is warranted for that disorder. ORDER Service connection for chloracne is granted. REMAND The Board is of the opinion that additional development is required before the Veteran's claim for entitlement to service connection for a skin disorder, other than chloracne, is decided. The Veteran contends that he has a rash on his lower and upper extremities which is due to Agent Orange exposure during service or is associated with the chloracne for which the Veteran was granted service connection herein. Initially, the record reflects that there are outstanding private dermatology treatment records. During the June 2011 Travel Board hearing, the Veteran testified that he sought treatment from a couple of private dermatologists for his claimed skin condition in the mid-1990s, and had biopsies performed. The RO must obtain and associate with the claims file all outstanding treatment records pertinent to the issue on appeal. Further, the claims file includes VA outpatient treatment records dated through August 2010. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically in the evidence of record. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must also obtain and associate with the Veteran's file or Virtual VA all outstanding records of VA evaluation and/or treatment since August 2010. Additionally, the Board finds that a VA examination to evaluate the Veteran's claimed skin disorder, other than chloracne, is in order in this case. In disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (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) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. The evidence reflects that the Veteran has a current skin disorder on the legs, diagnosed as "pickers nodules" or neurodermatitis. Further, to treatment providers and in testimony, the Veteran has stated that he has experienced the claimed skin disorder since approximately 2000, and he seems to get it prior to an outbreak of chloracne. In light of the above, the RO should provide the Veteran with a VA examination addressing the existence and etiology of his claimed skin disorder, other than chloracne. Additionally, as noted above, the Veteran claims that he has a current skin disorder, other than chloracne, which is due to service and/or his now service-connected chloracne. The Board notes that while the Veteran has been provided with notice pertaining to substantiating a claim for service connection on a direct basis, he has not been informed of the information and evidence necessary to establish entitlement to service connection on a secondary basis. Thus, statutory and regulatory notice should be provided concerning the information and evidence necessary to substantiate a claim for service connection on a secondary basis. Finally, in September 2010, the Veteran expressed disagreement with the evaluation for PTSD assigned by the RO in the September 2010 rating decision. The Board notes that the Veteran was not provided a SOC resulting from NOD. The filing of a NOD places a claim in appellate status. The failure to issue a SOC in such circumstances renders the claim procedurally defective and necessitates a remand. See 38 C.F.R. §§ 19.9, 20.200, 20.201 (2012); see also Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996). The purpose of remanding this issue is to give the RO/AMC an opportunity to cure this defect. Thereafter, the claim should be returned to the Board only if the Veteran perfects his appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must send the Veteran proper statutory and regulatory notice that advises the Veteran about what is needed to substantiate a claim for service connection on a secondary basis. 2. The RO/AMC must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, including the reports of any private dermatology treatment received. Based on his response, the RO/AMC must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO/AMC must obtain all relevant VA treatment records dated since August 2010. All attempts to secure this evidence must be documented in the claims file by the RO/AMC. If, after making reasonable efforts to obtain named records the RO/AMC is unable to secure same, the RO/AMC must notify the Veteran and (a) identify the specific records the RO/AMC is unable to obtain; (b) briefly explain the efforts that the RO/AMC made to obtain those records; (c) describe any further action to be taken by the RO/AMC with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 3. The Veteran must be afforded the appropriate VA examination to determine whether the Veteran has a skin disorder, other than chloracne, that is related to his military service or to a service-connected disorder. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must identify whether the Veteran has a skin disorder, other than chloracne, presently or at any point during the claims process. The examiner must also state whether any diagnosed skin disorder, other than chloracne, is at least as likely as not (50 percent or greater probability) related to the Veteran's active duty service, to include Agent Orange exposure therein. The examiner must also state whether any diagnosed skin disorder, other than chloracne, is at least as likely as not (50 percent or greater probability) due to or aggravated by a service-connected disorder, to include the service-connected chloracne. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 4. After the development requested has been completed, the RO/AMC must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If a report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 5. The RO/AMC must provide the Veteran and his representative a SOC addressing the issue of entitlement to an initial evaluation in excess of 50 percent for service-connected PTSD. The SOC should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The RO/AMC should advise the Veteran that the this claim will not be returned to the Board for appellate consideration following the issuance of the SOC unless he perfects an appeal. 6. Finally, after undertaking any other development deemed appropriate, the RO/AMC must readjudicate the any remaining issue(s) on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. 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). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs