Citation Nr: 1331418 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 10-11 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for chronic bronchitis, to include as secondary to herbicide exposure. 2. Entitlement to service connection for a skin disorder, to include as secondary to herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1971, including service in Vietnam. His service medals include the Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a Travel Board hearing in March 2011, but this was cancelled upon his request in March 10, 2011 correspondence from the Veteran's representative. The Veteran initially filed a claim for chloracne and/or dermatitis. However, the record includes other skin diagnoses, such as onychomycosis, xerosis, contact dermatitis and pruritis. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. Applying the Clemons concept to this case since the record reflects multiple skin diagnoses, the Board has recharacterized the chloracne/dermatitis issue as service connection for a skin disorder to ensure that the full scope of the skin disorder is considered. The Veteran is not prejudiced by this recharacterization, as it ensures that any skin disorder reasonably encompassed by his original claim will be considered. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Chronic Bronchitis Additional development is needed with respect to the Veteran's application to reopen a claim of service connection for chronic bronchitis. Service connection for chronic bronchitis was last denied in an unappealed March 2003 rating decision. VA treatment records in the file at the time of this decision were positive for findings of acute bronchitis. Upon current review of the record, it appears that the Veteran continued to seek treatment from the VA medical system for various disabilities following that rating decision. Unfortunately, the only available post-March 2003 VA treatment records associated with the claims file appear to have been the result of two limited searches for records pertaining only to treatment of diabetes and posttraumatic stress disorder only. There is nothing in the record demonstrating that a search was done for records pertaining to bronchitis. Moreover, the records obtained as a result of the limited searches are dated from only from February 2003 to August 2009 - more recent VA treatment records are not available in either the Veteran's electronic record in Virtual VA or in his paper claims file although there is no indication that the Veteran is not continuing to receive medical care from VA medical facilities. For these reasons, the Board is unable to determine whether more recent records contain pertinent evidence sufficient to reopen this claim, including in accordance 38 C.F.R. § 3.156(b). Therefore, on remand, any additional VA treatment records dated after February 2003 should either be made accessible on Virtual VA or be printed and added to the file. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Skin Disorder The Veteran seeks service connection for a skin disorder, to include as a result of exposure to herbicides. His service treatment records reflect findings of ringworm of the legs and jungle rot of the toes in September 1969, and a facial rash diagnosed as severe acne vulgaris in August 1970. A post-service VA treatment record dated in August 2007, prior to the filing of the claim for service connection, shows a finding of onychomycosis, and other post-service treatment records show diagnoses of pruritis, xerosis, and contact dermatitis. As noted above, it appears additional VA treatment records (which could potentially include findings of a current chronic skin disorder) are outstanding. Accordingly, updated VA medical records most be obtained on remand. Finally, as the Veteran asserts he currently suffers from a skin disorder related to his military service, and there is evidence of in-service skin complaints and diagnoses and evidence of current diagnoses of multiple skin disorders; a medical nexus opinion based upon a thorough review of the record and a clinical examination of the Veteran is required to decide the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The Veteran is asked to provide, or authorize VA to obtain, any and all non-duplicative private treatment records pertaining to his claimed disabilities. All efforts to obtain any and all identified records must be fully documented in the claims file. Regardless of the Veteran's response, all pertinent VA treatment records from February 2003 to the present must be added to the claim file, either physically or electronically through Virtual VA. 2. Notify the Veteran that he may submit lay statements from himself, as well as from individuals who have first-hand knowledge of the nature, onset, and duration of his skin and respiratory symptoms. He is to be provided an appropriate amount of time to submit this lay evidence. 3. After any outstanding records are added to the claims file, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed chronic skin disorder. All indicated studies must be performed, and all findings must be reported in detail. The claim file must be made available to and reviewed by the examiner. The examiner must state whether it is at least as likely as not that any chronic skin disorder found on current examination had onset in service; or, manifested within one year of service; or, is otherwise related to service, to include as a result of presumed herbicide exposure. The examiner is advised that the Veteran is competent to report his history, including any continuity of symptoms and such statements must be considered in formulating the necessary opinions. The examination report must include a complete rationale for all opinions expressed. If the VA examiner determines that he or she is unable to provide the requested medical opinion without resorting to speculation, this should be indicated in the report, along with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran must be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran 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. N. HYLAND Acting 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).