Citation Nr: 1328744 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 12-16 535A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a skin disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. All, Associate Counsel INTRODUCTION The Veteran had active military service from November 1969 to September 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran died in August 2012. The Veteran's surviving spouse was properly substituted as appellant in May 2013. 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 September 2009, the Veteran filed a claim seeking entitlement to service connection for psoriasis due to exposure to herbicides during his service in Vietnam. A December 2009 rating decision denied the claim. In February 2010, the Veteran filed a timely notice of disagreement (NOD) and provided the name of a private physician who treated him for his condition post-service. In July 2011, the VA sent a letter to the Veteran requesting that he provide authorization to obtain the private treatment records referenced in the NOD. The Veteran did not respond or provide the necessary authorization to obtain this evidence. The Veteran filed his substantive appeal in June 2012, indicating therein that he would obtain and submit the private treatment records referenced in his NOD. In September 2012, the Veteran died. No records were submitted or authorization received prior to his death. In May 2013, the Veteran's surviving spouse was substituted as appellant in accordance with 38 U.S.C. § 5121A. The representative has requested that the appellant be afforded an opportunity to obtain and submit the private treatment records, as the Veteran intended, prior to appellate review. See August 2013 Informal Hearing Presentation. It was the Veteran's contention that his skin disability was misdiagnosed as psoriasis. A VA examination to address his contention was not provided prior to his death, and unfortunately, cannot be provided now. The VA can, however, obtain a medical opinion, based on existing evidence, if it lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. See 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the elements are met, as the record contains evidence of a skin disability at the time of death, the Veteran was treated for a rash in the groin area in service (See February 1970 service treatment record), and the Veteran thought that his post service skin disability was the same as the skin problems he experienced in service. Accordingly, the case is REMANDED for the following action: 1. Provide the appellant with formal notice of her substitution as appellant. This notice should inform the appellant of her ability to submit additional information or evidence, and provide instruction on when and where to send the information or evidence. Specifically request the appellant to obtain and provide the private treatment records the Veteran was seeking prior to his death. An appropriate period of time should be allowed for the submission of additional information or evidence. 2. Thereafter, obtain a VA medical opinion to address the nature and etiology of the claimed skin disability. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the opinion. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is requested to identify all of the Veteran's skin disability, as indicated by the evidence of record. For each skin disability identified, provide an opinion as to whether it is at least as likely as not (probability of at least 50 percent) etiologically related to the Veteran's active service. In rendering this opinion, the examiner is instructed to comment on the treatment for a groin rash in service, the separation examination that was negative for skin disability, the Report of Medial History at service discharge in which the Veteran denied having or having had skin disease, and his presumed exposure to Agent Orange while in the Republic of Viet Nam during active duty. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3 After completing the above, and any other development deemed necessary, readjudicate the appellant's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, she and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). 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). _________________________________________________ THOMAS J. DANNAHER 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).