Citation Nr: 1328354 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 07-24 213A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a skin disorder, claimed as skin cancer due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran had active service from April 1970 to November 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from December 2004 and March 2007 decisions by the RO. It was one of 6 issues addressed by the Board in April 2011. In that decision, the Board denied 4 of the 6 issues, and remanded the other 2. Of those 2, the RO granted one, awarding service connection for hypertensive cardiomyopathy in a May 2012 decision. The RO continued to deny service connection for a skin disorder, and the case was returned to the Board for further appellate consideration. The issues of whether to reopen entitlement to service connection for a disability claimed as blood vessel damage of the head, mini-strokes, and transient ischemic attacks (TIA's), including as due to herbicide exposure, as well as entitlement to an earlier effective date for a total disability rating for compensation on the basis of individual unemployability (TDIU) have been raised in the July 2013 Service Organization Written Brief Presentation, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are 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 As indicated above, this issue was the subject of a Board Remand in April 2011. In explaining the basis for the Remand, the Board observed that the Veteran had skin problems noted in his service treatment records. Specifically, there was a diagnosis of xerosis of the hands (October 1971), and the service separation examination report revealed the presence of lichenified skin over both hands. Also at that time, "chronic dermatitis" was written in the notes section of that report. Although the post service records only appear to describe skin cancer and issues related to sun damaged skin, given the in-service findings, the presence of current disability, and the Veteran's contentions of on-going problems since service, an examination and opinion was sought to address the etiology of any current disability. In the report of examination that was obtained in May 2011, no mention was made of the in-service skin findings and any potential relationship they may have with current disability. Although perhaps one could infer from the report that the skin findings noted in service were no longer present and unrelated to the current findings, it is considered that a more explicit opinion would be needed to satisfy scrutiny by the Court of Appeals for Veterans Claims. Clarification should be sought. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Obtain any VA skin treatment records dated from June 2013 to the present from the Mountain Home VA Medical Center in Johnson City, Tennessee. 2. Forward the Veteran's claims file to the VA examiner who provided the May 2011 medical opinion, or if unavailable, to another qualified person. That person should review the claims folder, noting the in-service findings regarding xerosis, chronic dermatitis, and lichenified skin, and offer an addendum to the May 2011 VA examination report that addresses whether it is at least as likely as not that any current skin disability is directly related to, or the result of the Veteran's military service, specifically addressing the skin complaints noted therein, including the diagnosis of xerosis in October 1971, chronic dermatitis in November 1971, and lichenified skin over both hands in November 1971. If the Veteran no longer has xerosis, chronic dermatitis, or lichenified skin over both hands, that should be set forth. If it is necessary to examine the Veteran to obtain the requested opinion, that should be arranged. In any event, a complete rationale for any opinion expressed should be provided. If the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination. 3. After the requested development has been completed, the AMC should readjudicate the merits of the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant 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). _________________________________________________ MICHAEL E. KILCOYNE 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).