Citation Nr: 1338211 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 10-18 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a skin disorder (claimed as a skin rash), including as a result of exposure to herbicide agents used in Vietnam. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Appellant-Veteran and S. M. ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to December 1977. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). As support of his claim, the Veteran testified at a videoconference hearing in May 2013 before the undersigned Veterans Law Judge (VLJ) of the Board. This claim requires further development before being decided on appeal, so the Board is remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Although the Board sincerely regrets the further delay that inevitably will result from remanding, rather than immediately deciding, this claim, it is necessary to ensure the claim is fully developed and receives all due consideration. A review of the Veteran's service treatment records (STRs) shows that, on his Report of Medical History at separation, there is a notation of the skin condition vitiligo. He has reported that, upon returning from Vietnam, he noticed a scaly rash on his body. He stated that he never sought medical treatment and, instead, just used an over-the-counter medication to help the rash from spreading. He further reported that the rash since has spread, despite this, also that no treatment relieves his symptoms or seems to help, and that he believes it is due to exposure to herbicides, specifically Agent Orange, while serving in Vietnam. He also provided two supporting lay statements from friends who attested that, when they met him in 1971 and 1981, respectively, they noticed he had a rash on his body and that he still has the rash. Even as a layman, the Veteran is competent to report symptoms that he has experienced and equally can attest to factual matters of which he has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). See also Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Therefore, the Board finds that he is competent to report experiencing a skin rash since his service. Additionally, the Board finds him credible in these assertions. Therefore, he should be afforded a VA examination for a medical nexus opinion concerning the nature and etiology of his current skin rash, including insofar as whether it is due to exposure to herbicides in Vietnam, as the record confirms he served in Vietnam during the Vietnam War Era. 38 C.F.R. §§ 3.2(f), 3.307(a)(6); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994); see also Brock v. Brown, 10 Vet. App. 155 (1997); McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which in actuality involved exposure to radiation, are nonetheless equally applicable to claims based, instead, on exposure to Agent Orange). Combee and McCartt make clear that, even if a Veteran does not have a condition that is presumptively associated with the claimed event in service (which again, here, is exposure to Agent Orange), a Veteran still may establish entitlement to service connection with proof of actual direct causation. Also during his hearing, the Veteran testified that he saw a private doctor in New Jersey for his skin rash approximately five years after separation from active service, so in around 1982. Attempts therefore should be made to obtain these additional records, as well as any relevant current treatment records. 38 C.F.R. § 3.159(c). Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Undertake appropriate development to obtain all outstanding, pertinent medical treatment records, to include from the private doctor in New Jersey that the Veteran reported seeing approximately five years after separating from active service. All additional treatment records identified by the Veteran should be obtained and associated with the claims file for consideration. The amount of efforts needed to be expended depends on who has custody of the records. If they are not in the custody of a Federal department or agency, then 38 C.F.R. § 3.159(c)(1) controls, whereas subpart (c)(2) controls if they are. If these efforts yield negative results, a notation to that effect must be made in the file and the Veteran appropriately notified. 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of all additional records, schedule a VA compensation examination for a medical nexus opinion concerning the etiology of the Veteran's skin rash, including especially in terms of the likelihood (very likely, as likely as not, or unlikely) this rash: (a) initially manifested during his military service from June 1969 to December 1977, even if not complained about, diagnosed, or treated during his service, or (b) is otherwise related or attributable to his service, including especially to his presumed exposure to Agent Orange in Vietnam. In making these necessary determinations, the examiner must consider the Veteran's lay statements and hearing testimony concerning his skin rash that he says began after returning from Vietnam, as well as the supporting lay statements from friends who reported noticing his skin rash as early as 1971 and 1981, respectively. It therefore is essential the claims file be made available to and reviewed by the examiner. All necessary diagnostic testing and evaluation must be performed. The examiner must discuss the underlying rationale of the opinion, whether favorable or unfavorable to the claim, if necessary citing to specific evidence in the file supporting conclusions. Merely indicating he or she cannot provide an opinion without resorting to mere speculation is insufficient unless the examiner provides some explanation as to why comment or opinion is not possible or feasible. See Jones v. Shinseki, 23 Vet. App. 382 (2010). As such, if the examiner is unable to offer an opinion, it is essential the examiner indicate whether there is additional evidence or other procurable data that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge, multiple possible etiologies, or whatever may be the case. 3. Then readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN 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).