Citation Nr: 1326507 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 09-02 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for skin problems/rashes to include as secondary to exposure to Agent Orange. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran had active service from May 1967 to June 1969. The Veteran was awarded the Combat Infantryman Badge and the Purple Heart, among other medals. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2012 the Board granted entitlement to an initial disability evaluation of 50 percent for posttraumatic stress disorder (PTSD). The Board found that entitlement to an evaluation in excess of 50 percent disabling was not warranted for any period during the pendency of the claim. In addition, the Board remanded the claim of entitlement to service connection for skin problems/rashes to include as secondary to exposure to Agent Orange. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims. In a Joint Motion for Partial Remand (JMR), the parties agreed: To the extent that the Board's decision granted entitlement to a disability evaluation of 50 percent, but no higher, for his service-connected post-traumatic stress disorder (PTSD), and remanded a claim of entitlement to service-connected benefits for skin problems/rashes, to include as secondary to exposure to Agent Orange, the Appellant has elected not to pursue an appeal of these matters, and therefore, the parties respectfully request that those portions of the Board's decision remain undisturbed. The JMR further stated that: The parties concur that the Board's decision warrants remand because the Board did not provide an adequate statement of reasons and bases for its determination that Appellant had not presented a reasonably raised claim for entitlement to TDIU, and that adjudication of that issue was not merited. In addition, the parties agreed that a claim for TDIU was denied by the RO in January 2010 and that thereafter evidence bearing on the issue of unemployability was submitted, including a November 2011 VA treatment note and a December 2011 VA examination. In a February 2013 Order, the Court vacated and remanded the Board's decision "only to the extent that it failed to adjudicate a claim for a total disability rating based on individual unemployability." The case was returned to the Board for further consideration pursuant to the terms of the JMR. As the Court, in its order, found that the Board failed to adjudicate a claim for TDIU, the Board has taken jurisdiction of this issue and has listed it above. The issue of entitlement to an evaluation in excess of 50 percent disabling for PTSD has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 In June 2012 the Board remanded the issue of entitlement to service connection for skin problems/rashes to include as secondary to exposure to Agent Orange, for the Veteran to be afforded a VA medical examination. The Board ordered that the examiner indicate all diagnosed conditions, and opine as to whether it is at least as likely as not that any of them manifested during, or as a result of, active military service, to include as due to exposure to herbicidal agents. Pursuant to the Board's remand, the Veteran was afforded a VA medical examination in July 2012. Upon examination the Veteran was noted to not now have or ever had a skin condition. The examiner reported that the: Veteran served in Vietnam from October 1967 until October 1968 when he was exposed to Agent Orange. He had no problems with skin lesions at that time, nor in the years following his return. He has no history of acne or acneiform lesions such as blackheads or cysts. About 15 - 20 years ago, while living in Florida, [V]eteran states that he began to break out with bumps on the forearms after excess sun exposure. He states that the bumps were intermittent, and would disappear with no treatment, leaving small scars. He occasionally noticed a few bumps on his face, too. He has no current involvement of the face, neck, shoulders, back, chest, abdomen or lower extremities, but continues to have intermittent bumps on his forearms. He has never seen any doctor or dermatologist for diagnosis or treatment of his skin condition and uses no medications. Veteran has no diagnosis of skin condition. Upon physical examination the Veteran was found to have erythematous forearms with multiple hypopigmented scars bilaterally. He was found to have one raised hyperkeratotic lesion on the left forearm. One small popular lesion on the dorsal surface of the right forearm was palpable. No other areas of erythema or lesions were noted on the upper arms, back, face, chest, abdomen, or lower extremities. The examiner rendered the opinion that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided the rationale that due to the lack of any skin lesions during the time of service and the first 20 years after returning from Vietnam, it is less likely as not that the current skin disability is related to herbicide exposure. Although the examiner at first appears to provide an opinion regarding whether the Veteran's condition is directly related to service, the examiner qualifies the opinion in the rationale indicating that the condition is not related to the Veteran's exposure to herbicides. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the Board finds it necessary to afford the Veteran another VA medical examination. As the outcome of the claim of entitlement to service connection for skin problems/rashes to include as secondary to exposure to Agent Orange, may impact on the outcome of the Veteran's claim for TDIU, the Board finds these issues to be inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, the Board cannot adjudicate the issue of entitlement to a TDIU until the issue of entitlement to service connection for skin problems/rashes to include as secondary to exposure to Agent Orange, is resolved. In addition, the record raises the issue of entitlement to an evaluation in excess of 50 percent disabling for PTSD and the Board is referring this issue to the AOJ for initial consideration. As the outcome of this issue may also impact the issue of entitlement to a TDIU, the Board finds these issues to be inextricably intertwined. As such, on remand, the RO should adjudicate the claim of entitlement to an evaluation in excess of 50 percent disabling for PTSD, in conjunction with the issue of entitlement to at TDIU. See Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009) (en banc). A private expert, in April 2013, rendered the opinion "that it is at least as likely as not that his service-connected PTSD alone has prevented him and continues to prevent him from securing and following any substantially gainful occupation both presently and dating back to early 2008." The Veteran currently does not meet the minimum percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a) (2012). Even when the percentage requirements of 38 C.F.R. § 4.16(a) are not met, a TDIU may be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disability. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board cannot award TDIU on this basis in the first instance because 38 C.F.R. § 4.16(b) requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Therefore, for any period on appeal during which the Veteran does not meet the schedular criteria for TDIU, the claim should be submitted to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of a TDIU on an extra-schedular basis. Since the claims file is being returned it should be updated to include VA treatment records compiled since January 2012. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Adjudicate the issue of entitlement to an evaluation in excess of 50 percent disabling for PTSD. 2. Provide the Veteran with adequate notice with respect to his claim of entitlement to TDIU. 3. Obtain and associate with the claims file all VA treatment records regarding the Veteran dated since January 2012. Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file. 4. Thereafter, schedule the Veteran for a VA examination of the skin before an appropriate specialist. The Veteran's claims file and a copy of this remand must be made available for review by the assigned examiner prior to the scheduled examination. The examiner is asked to examine the Veteran, performing all indicated tests and studies, to determine whether he suffers from any skin disability(s). If so, the examiner should indicate all diagnosed conditions, and opine as to whether it is at least as likely as not that any of them manifested during, or as a result of, active military service, to include as due to exposure to herbicidal agents. The Board again notes that exposure to herbicides is conceded. 5. Thereafter, refer the Veteran's claim of entitlement to a TDIU to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of a TDIU on an extra-schedular basis for all applicable periods on appeal where the Veteran does not meet the schedular criteria for a TDIU. 6. If any benefits sought on appeal are not granted, issue a supplemental statement of the case and provide the Veteran and his representative an opportunity to respond. 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). _________________________________________________ M. E. LARKIN 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).