Citation Nr: 1336677 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 12-20 417 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a skin disorder, to include cystic acne and chloracne, to include as a result of exposure to herbicides. 2. Entitlement to service connection for an acquired psychiatric disorder, to include an anxiety disorder with sleep disturbances, including as secondary to a skin disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from September 1967 to May 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In May 2013, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. 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 The Board finds that additional development is necessary prior to adjudication of the claims. At the May 2013 Board hearing, the appellant reported that he has received treatment for his skin disorder and psychiatric disorder at Brooklyn VA since the fall of 2000. See May 2013 Board Hearing Transcript (Tr.) at p. 19. Although some of the appellant's VA treatment records have been associated with the claims file, the earliest records are from 2005, more than 5 years after the appellant reported that he began treatment at VA. VA medical records, even if not in the claims file, are nevertheless considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C.A. § 5103A(b) (West 2002); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records); Ivey v. Derwinski, 2 Vet. App. 320, 323 (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them). Therefore, the Agency of Original Jurisdiction (AOJ) should obtain a complete set of VA treatment records from the fall of 2000. A July 2008 VA treatment record notes that the appellant is on Social Security Disability. The appellant's Social Security Administration records have not been associated with the claims file. As the records may be relevant to the claim, the AOJ should request the records. At the Board hearing, the appellant noted that he received psychiatric treatment from private providers, including at Lehigh Valley Hospital in 1987 to 1988 and 1996. See Tr. at p 25. As the records may be relevant to the claim, on remand, the AOJ should request the appellant to identify and provide release forms for any private providers from whom he has received relevant mental health and medical treatment. The appellant was afforded a VA examination in April 2009. The VA examiner found the appellant had cystic acne and noted that the appellant gave a history of developing cystic acne as far back as 1969. The examiner stated that "he was not seen by a dermatologist in the military but he was seen by general physicians who have noted this." The appellant's service treatment records are silent for any treatment or complaints of acne. The VA examiner stated that the appellant had cystic acne which he acquired in 1969, based on the appellant's self-reported history, but he did not provide an opinion as to whether the appellant's acne was related to service. The appellant was exposed to herbicides in the DMZ of South Korea. In a January 2006 VA treatment record, a VA physician stated that the appellant had cystic acne, scarring, "Cannot exclude Agent Orange as a contributing factor." The April 2009 VA examiner did not address whether the appellant's cystic acne was related to exposure to Agent Orange. If VA provides the claimant an examination in accordance with the duty to assist, the examination must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As the VA examiner did not provide an adequate opinion, a new VA examination is necessary. The Board finds that the claim must also be remanded for a VA psychiatric examination. VA must provide an examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). An October 2007 VA treatment record reflects that the appellant was diagnosed with major depression, generalized anxiety disorder and PTSD with an onset in 1996. At the Board hearing, the appellant stated that he believed his anxiety was related to service. Tr. at p. 26. The Board finds the facts in this matter meet the low threshold to trigger VA's duty to assist by providing a medical examination. Therefore, the AOJ should obtain a VA examination addressing the question of whether it is at least as likely as not that the appellant has an acquired psychiatric disorder resulting from service. Accordingly, the case is REMANDED for the following action: 1. Obtain all of the appellant's VA treatment records from the fall of 2000 to present which have not yet been associated with the record, including records from the VA medical facility in Brooklyn, New York developed between 2000 and 2005. If no records are available, the claims folder must indicate this fact. 2. Request the appellant to identify all medical providers (VA and private) from whom he has received relevant mental health and medical treatment, and complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for the identified treatment records for each medical treatment provider identified, to include records of treatment at Lehigh Valley Hospital in 1987 to 1988 and 1996. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records. 3. Contact the Social Security Administration and obtain a copy of that agency's decision concerning the appellant's claim for disability benefits, including any medical records used to make the decision. If the search for these records yields negative results, this fact should be clearly noted in the claims folder. 4. After completion of the above and after any relevant records obtained have been associated with the claims file, schedule the appellant for a VA examination to determine the following: (i) Identify all skin disorders, to include cystic acne and chloracne. (ii) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any skin disorders identified are related to service, to include due to exposure to herbicides. The examiner is advised that the Veteran's exposure to Agent Orange is conceded. Forward the claims file to the examiner for review. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 5. After completion of the above and after any relevant records obtained have been associated with the claims file, schedule the appellant for a VA psychiatric examination to determine the following: (i) Identify all psychiatric disorders, to include anxiety disorder, depression and PTSD. (ii) Provide an opinion as to whether any psychiatric disorders are at least as likely as not (50 percent probability or greater) related to the appellant's service on a direct basis. (iii) If the examiner at the appellant's VA skin examination opines that the appellant has a skin disorder that is at least as likely as not related to service, provide an opinion as to whether it is at least as likely as not (50 percent probability) the appellant has an acquired psychiatric disorder that is (a) caused or (b) aggravated (permanently worsened) by the service-connected skin disorder. Forward the claims file to the examiner for review. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 6. Thereafter, readjudicate the issues on appeal. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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.C. GRAHAM 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).