Citation Nr: 1337631 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 06-28 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for degenerative bone disease. 2. Entitlement to service connection for a skin disorder, to include as due to exposure to herbicides. 3. Entitlement to service connection for a lung disorder. 4. Entitlement to service connection for throat cancer, to include as due to exposure to herbicides. 5. Entitlement to service connection for peripheral vascular disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1970 to March 1971. He also had additional service in the Naval Reserves. This case comes before the Board of Veteran's Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In September 2010, the Board denied the Veteran's claims of entitlement to service connection for transient ischemic attack and fatty tumors on both arms. The Board also denied reopening the claim for service connection for hypertension. The Board remanded the claims of entitlement to service connection for degenerative bone disease, a skin disorder, including as due to herbicide exposure, a lung disorder, throat cancer, and peripheral vascular disease (claimed as poor circulation of the legs). A review of the Veteran's Virtual VA electronic claims file reveals additional VA outpatient treatment records dated through March 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 A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In May 2013, the Board remanded the Veteran's claims in order to obtain compliance with the previous remand instructing that Naval Reserve records be obtained. Specifically, in the September 2010 remand, the Board instructed the RO/AMC to obtain the Veteran's Naval Reserves records for the period from March 1971 to February 1975. The AMC subsequently requested these records from the Records Management Center (RMC). As pointed out by the Veteran's representative in September 2012, however, the outstanding records are not associated with the claims file, and there is no indication that the RMC provided a negative response to the request. There is also no indication that the RO or AMC undertook any additional efforts to obtain these outstanding records. As such the Board instructed that outstanding Navel Reserve personnel and treatment records be requested from the National Personnel Records Center (NPRC), the RMC, the Veteran's Naval Reserve Unit, or any other appropriate Federal or State custodian. While on remand, a Beneficiary Identification and Records Locator subsystem (BIRLS) search was conducted according to the M01 search for outpatient records at the NPRC, and the response indicated that BIRLS showed service treatment records were already in the VA's possession, but that a request could be submitted under the "M" request series. It does not appear that there was any follow-up based on the information that another request in the "M" series could be made, such that the Board finds this search was incomplete. In addition, an email was sent to K. Jungclaus requesting records, and he responded that the temporary folder did not contain service treatment records or personnel records for the Veteran's Naval Reserve service. In August 2013 the RO then issued a memorandum of formal finding on the unavailability of service treatment records. This memorandum indicated that records had been requested, a negative response was received, and the Veteran was so informed, such that further attempts would be futile. The Board observes, however, that the prior remand specifically requested that the NPRC, RMC and Naval Reserve Unit be contacted and requested to submit such records. This development has not been accomplished. Specifically, the RMC and Naval Reserve Unit were not contacted, and further follow-up for NPRC records is necessary. Request all the outstanding Naval Reserve records, in compliance with the prior remand. See Stegall, 11 Vet. App. at 271. In addition, the Board observes that pursuant to the September 2010 remand the Veteran was afforded an October 2010 VA examination for any bone or joint disease, and a skin disorder. The examiner opined that the Veteran's lumbar degenerative disc disease and facet arthropathy were not related to in-service back complaints and treatment. The reasoning provided indicated that the examiner was unable to locate any instance that the Veteran was seen for back or any other joint complaints while on active duty according to service treatment records, and the first instance of back pain complaints located in the record was in 2005. Regarding the Veteran's status-post right knee arthroplasty, the examiner indicated that the first instance of knee pain was in 2006. The examiner also diagnosed the Veteran as having vitiligo, and opined that it was not related to service. He reasoned that the only instance of skin problems in service was in October 1970 with impression of primarily sebaceous enlargement, and the first instance of documented vitiligo was in April 2004. This focus on the absence of medical documentation is, however, contrary to law. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). As such, the Board finds the examiner's opinions to be inadequate, and remand is necessary to obtain VA opinions where the reported instances of in service symptomatology are considered in providing the reasoning. In addition, the Veteran was afforded a January 2006 VA examination regarding his claimed vocal cord or throat cancer, and the examiner indicated that chronic obstructive pulmonary disease was totally unrelated to vocal cord cancer, and that whether vocal cord cancer was considered a laryngeal cancer or not was a matter of definition. The Board observes that respiratory cancers (cancers of the lung, bronchus, larynx and trachea) are presumptively service-connected if the Veteran was exposed to herbicides, and the Veteran served during the Vietnam era in the Navy stationed for a time in Saigon. See 38 C.F.R. § 3.309(e). There is a July 1998 private record indicating that the Veteran had a vocal cord carcinoma. A more recent VA examination to determine whether the Veteran has any residuals of vocal cord carcinoma would be helpful, in addition to assessing the Veteran's current lung problems, and providing diagnoses as indicated. The examiner should opine as to whether any diagnoses of the lungs or vocal cord is at least as likely as not related to service, to include exposure to herbicides. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must take all indicated action to secure from the National Personnel Records Center (NPRC), the Records Management Center (RMC), the Veteran's Naval Reserve Unit, or any other appropriate Federal or State custodian, the Veteran's complete medical and personnel records, for his entire time in the U.S. Naval Reserve from March 1971 to February 1975. Efforts to obtain the Naval Reserve records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal or State department or agency from whom they are sought. 38 C.F.R. § 3.159(c)(2). If any records sought are not obtained, the RO/AMC should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 2. Afford the Veteran a VA examination to determine the nature and etiology of his degenerative disease of the bones, a skin disorder, and the lungs and vocal chords. The examiner should be provided the claims folders and access to Virtual VA, if necessary. Any and all indicated evaluations, studies, and tests deemed necessary by the physician should be accomplished. The examiner should opine as to whether it is at least as likely as not that any currently shown degenerative bone or joint disease, a skin disorder, or any diagnoses of the lung or vocal cord is related to service. The examiner should provide a rationale that considers the Veteran's herbicide exposure, reported symptomatology and history, as well as the documented medical history and present examination. 3. Then, readjudicate the Veteran's claims. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. 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. 2013). _________________________________________________ REBECCA FEINBERG 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) (2013).