Citation Nr: 1326047 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 09-17 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a low back disability, to include as due to an undiagnosed illness. 2. Entitlement to service connection for a skin disability, to include as due to an undiagnosed illness. 3. Entitlement to service connection for a respiratory disability, to include due to exposure to asbestos or herbicides or as due to an undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from August 1989 to May 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In September 2009, the appellant presented testimony at a personal hearing conducted at the Detroit RO before a Decision Review Officer (DRO). A transcript of this hearing has been associated with the appellant's claims folder. The appellant requested a hearing before the Board, but in March 2011, the appellant's representative stated that the appellant withdrew his request. Thus, the hearing request is deemed to be withdrawn. The Board notes that the appellant also perfected appeals to the Board on the issues of entitlement to a higher rating for bilateral hearing loss and tinnitus. In an August 2009 statement, the appellant's representative stated that the appellant wished to withdraw the appeal issues of a higher rating for bilateral hearing loss and tinnitus. Thus, these issues are not before the Board. 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 While further delay is regrettable, the Board finds that further development is required prior to adjudicating the appellant's claims. See 38 C.F.R. § 19.9 (2012). The appellant contends that he hurt his low back in basic training. The appellant's service treatment records appear to be incomplete. Records from the appellant's enlistment and early years of service have not been associated with the claims file. A record in his service treatment records noted there was a "replacement reorder in lieu of original" from November 1989 to April 24, 1992. Although an attempt was made to obtain clinical records from the Great Lakes Naval Hospital from January to December 1989, the RO did not attempt to find the appellant's missing service treatment records. The appellant's service personnel records may also note the incident and have not been associated with the claims file. Thus, the Board finds that an attempt should be made to obtain the appellant's missing service treatment records and his service personnel records. In a July 2013 Informal Hearing Presentation, the appellant's representative stated that if the appellant was injured during basic training it would have been recorded within daily reports submitted by his drill instructors attached to his platoon. Therefore, the representative requested that the appellant be asked to submit a specific date range needed to fulfill a Joint Services Records Research Center (JSRRC) request so all reports from the period can be ascertained and reviewed to see if the appellant's injury is included in the reports. As the appellant's service treatment records are incomplete, the Board agrees that an attempt should be made to verify the appellant's claimed injury through the JSRRC. In regard to the appellant's claims for a skin disability and a respiratory disability, the Board finds that VA examinations are necessary. The appellant's VA treatment records reflect that he has been diagnosed with asthma, allergic rhinitis and tinea pedis during the period on appeal. See September 2007 VA treatment record. An April 2008 letter from C.P.M., M.D. reflected that the appellant had a history of recurrent tinea pedis, episodic skin lesions, furuncle and contact dermitis. As a lay person, the appellant is competent to report that he had breathing problems and a skin condition in service. He is also competent to report that he has had symptoms since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In a December 2007 statement, the appellant stated that he had "suffered from breathing problems ever since [he] came home from Desert Shield/Storm." In a September 2008 notice of disagreement, the appellant stated that he had chronic skin disorders and breathing problems. As the appellant has been diagnosed with respiratory and skin disabilities, and he indicated that he has had the problems since service, the Board finds that VA examinations are necessary to determine the etiology of the appellant's skin and respiratory disabilities. Further, the appellant has asserted that his conditions are due to an undiagnosed illness. The appellant's DD Form 214 reflects that he had more than 2 years of sea service and received a Southwest Asian Service Medal (with two bronze stars) and a Kuwait Liberation Medal. In light of the appellant's sea service in the Southwest Asia theater of operations during the Persian Gulf War, the Board finds that the evidence of record raises a question as to whether the appellant's symptoms are manifestations of an undiagnosed illness. 38 C.F.R. § 3.317. The records reflect that the appellant has complained of low back pain but has not been diagnosed with a low back disability. The appellant has also asserted he has an undiagnosed respiratory problem. Accordingly, the Board finds that the appellant must be afforded a VA examination that fully assesses the appellant's claim of service connection a low back disability, as the evidence of record does not contain sufficient medical evidence to decide the claim. The Board also finds that the VA examinations addressing the etiology of the appellant's skin and respiratory disabilities should address whether he has an undiagnosed illness. 38 U.S.C.A § 5103A(d); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Obtain the appellant's complete service personnel records. If no records are available, the claims file must indicate this fact. 2. Request the appellant's complete service treatment records, including records from prior to April 1992. If no records are available, the claims file must indicate this fact. 3. Request that the appellant clarify the dates of his back injury in service. If the appellant responds, obtain the daily reports for the appellant's unit from the time period specified by the appellant. If the appellant does not respond and/or no records are available, the claims file must indicate this fact. 4. After completion of the above, schedule the appellant for a VA determatologic examination to determine the following: (a) Identify any skin disabilities. (b) Provide an opinion as to whether it is at least as likely as not (50 percent probability) that any skin disability identified is related to service. (c) If the appellant's complaints of skin problems cannot be attributed to any known clinical diagnosis, the examiner should indicate whether it is at least as likely as not that such symptomatology represents an objective indication of a chronic disability resulting from an undiagnosed illness related to any confirmed Persian Gulf War service, or a medically unexplained chronic multi-symptom illness. Forward the claims file to the examiner for review. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 5. After completion of steps 1 to 3, schedule the appellant for a VA respiratory examination to determine the following: (a) Identify all respiratory disabilities. (b) Provide an opinion as to whether it is at least as likely as not (50 percent probability) that any respiratory disability identified is related to service, to include any exposure to herbicides or asbestos. (c) If the appellant's complaints of respiratory problems cannot be attributed to any known clinical diagnosis, the examiner should indicate whether it is at least as likely as not that such symptomatology represents an objective indication of a chronic disability resulting from an undiagnosed illness related to any confirmed Persian Gulf War service, or a medically unexplained chronic multi-symptom illness. Forward the claims file to the examiner for review. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 6. After completion of steps 1 to 3, schedule the appellant for a VA orthopedic examination to determine the nature and etiology of his low back pain. (a) Identify whether it is at least as likely as not that the appellant's complaints of low back pain can be attributed to any diagnosed disability. (b) If the appellant has a low back disability, provide an opinion as to whether it is at least as likely as not (50 percent probability) that any currently diagnosed disability manifested by low back pain is related to service. (c) If the appellant's complaints of low back pain cannot be attributed to any known clinical diagnosis, the examiner should indicate whether it is at least as likely as not that such symptomatology represents an objective indication of a chronic disability resulting from an undiagnosed illness related to any confirmed Persian Gulf War service, or a medically unexplained chronic multi-symptom illness. Forward the claims file to the examiner for review. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 7. Thereafter, readjudicate the issues on appeal. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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). 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). _________________________________________________ MILO H. HAWLEY 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).