Citation Nr: 1333152 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-11 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a right knee disability, to include as secondary to service-connected disability. 2. Entitlement to service connection for a skin disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service from September 1968 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the above Regional Office (RO). 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. The Board has reviewed the Veteran's claims files as well as the record maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) to ensure complete consideration of all the evidence. REMAND 1. Right knee The Veteran is seeking service connection, on a secondary basis for a right knee condition, diagnosed as degenerative joint disease, that he believes was caused, or made worse, by his service-connected left knee disability. He is currently service-connected for total left knee replacement rated as 30 percent disabling. The Board has determined that additional development is required for the reasons discussed below. In May 2005, the Veteran was afforded a VA examination to determine, the onset and etiology of any current right knee disability. The examiner diagnosed degenerative joint disease of the right knee. However he noted that without the benefit of additional medical records regarding the Veteran's work-related right knee injury and subsequent surgery, it was not possible to render an opinion. In this case, given the absence of an adequate medical opinion addressing whether a medical nexus exists between the Veteran's claimed right knee condition and any service-connected disability, a VA medical opinion is needed. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc) (holding that 38 C.F.R. § 3.310(a) authorizes a grant of service connection not only for disability caused by a service-connected disability, but for the extent of additional disability resulting from aggravation of a non-service-connected disability by a service-connected disability). 2. Skin disorder The Veteran is also seeking to establish service connection for a skin disorder, diagnosed as tinea, on a presumptive basis due to his alleged exposure to herbicides. Service connection can be established on a presumptive basis for certain diseases associated with exposure during service to herbicides. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.307, 3.309. The Board notes that tinea is not among the diseases which have been determined to be associated with exposure to herbicides such as Agent Orange. 38 C.F.R. §3.309(e). Thus, the presumption afforded under 3.309(e) cannot provide the basis for a grant of service connection. 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the foregoing presumption provisions, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Public Law No. 102-4, § 2, 105 Stat.11 (1991), the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The evidence of record does not necessarily provide a clear picture of any relationship between the Veteran's current skin problems and his active service, to include, as alleged by the Veteran, to be the result of his presumed herbicide exposure in Korea. In this regard, the Board notes that the RO has conceded Agent Orange exposure based on the Veteran's service in Korea from May 1969 to June 1970 along the demilitarized zone (DMZ), while assigned to Co B, 2d Bn, 9th Infantry Division; thus, exposure to herbicide agents in service may be presumed. Here there is no medical opinion that addresses the etiology of the Veteran's claimed skin disorder. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see McLendon supra. In this regard, an indication that a current disability may be associated with service is a low threshold. The Veteran should be scheduled for a VA examination to determine the likelihood that any skin disorder he may have is related to his period of service. He is competent to report the onset of respiratory symptoms in service (as this requires only personal knowledge and not medical expertise because it comes to him through his senses), the examiner must acknowledge and discuss the Veteran's contentions that he had skin problems during service and that he has experienced continued problems since that time. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where examiner did not comment on Veteran's report of in-service injury and instead relied on absence of evidence in service medical records to provide negative opinion). That said, however, the Veteran's contentions regarding these symptoms also must be considered in light of the medical and other evidence of record to determine whether his lay testimony is also credible (a factual determination) to resultantly have probative value. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Any ongoing medical records should be obtained. In this regard, the Board notes that it appears that the most recent record of any outpatient treatment that the Veteran has undergone (and that is included in his claims folder or Virtual VA/VBMS folder) is dated in December 2007. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file copies of all clinical records pertaining to treatment of the Veteran's right knee and skin disorders that are not already in the claims file. The Board is particularly interested in medical records pertaining to treatment and surgical repair of a right meniscal tear the Veteran sustained in 2001 as a result of a work-related injury. Document all efforts to obtain such records. If any pertinent evidence identified by the Veteran is unavailable, inform him and request that he obtain and submit it. If any records are unavailable/do not exist, and further efforts to obtain them would be futile, document this fact in the claims file. See 38 U.S.C.A. § 5103A(b). All such available documents should be associated with the claims folder or Virtual VA/VBMS folders (as appropriate). 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any right knee disability, including degenerative joint disease, that he may have. The claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. The examiner should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms, and the examination report should include a discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be performed, and the examiner should review the results of any testing prior to completing the report. Based on an examination of the Veteran and comprehensive review of the claims file, the examiner should address the question of whether it is it at least as likely as not, i.e., a 50 percent probability or greater that the Veteran's previously diagnosed degenerative joint disease of the right knee-as well as any other right knee disorder shown on current examination-is caused or aggravated by his service-connected total left knee replacement as a result of altered gait imposed by the left knee disability and/or weight-bearing due to pain from his service connected left knee disability. If no causation or aggravation is found, the examiner should specifically indicate so and explain why that is. If aggravation is found, the examiner should identify the baseline level of severity of the nonservice-connected disability to the extent possible. In providing this opinion, the examiner should address the May 2005 VA examination report indicating the Veteran sustained a right knee meniscal tear and underwent arthroscopic surgery in 2001 and discuss the impact, if any, of this injury on his current right knee disability. He/She should also acknowledge and discuss any of the Veteran's competent and credible statements regarding the onset of right knee problems. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. 3. Also, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his skin disorder, diagnosed as tinea. The claims file must be made available to the examiner for review of the case, and the examination report should include a notation to the effect that this record review took place. The examiner should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms, and the examination report should include a discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be performed, and the examiner should review the results of any testing prior to completing the report. The examiner should identify all skin disorders present and should opine as to whether it is at least as likely as not, i.e., at least a 50 percent probability or greater, that any such diagnosed disorders are traceable to any incidents, symptoms, or treatment that the Veteran experienced or manifested during service or is in any other way causally related to his military service including presumed exposure to herbicides (including Agent Orange) in service. [Note: The Veteran's in-service exposure to herbicides has been conceded.] The conclusions of both examiners should reflect review of the claims folder, and the discussion of pertinent evidence. If the examiners feel that the requested opinions cannot be rendered without resorting to speculation, they should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiners themselves (because he/she does not have the needed knowledge or training). 4. After completing the requested action, as well as any additional notification and/or development deemed warranted, readjudicate the service connection issues. If the benefits sought on appeal remains denied, furnish the Veteran and his representative an appropriate SSOC and give them an appropriate time period in which to respond. The Veteran 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).