Citation Nr: 1340298 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 12-02 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a skin rash disability. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran had active service from September 1965 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision of the Des Moines, Iowa, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for the benefit sought on appeal. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to remanding this case. 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 While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. See 38 C.F.R. § 19.9 (2012). The Veteran contends that his current skin rash is related to his military service in Vietnam. He further contends that it is related to herbicide exposure. He has requested a VA examination to establish the etiology of his contended skin rash disability. In particular regard to the Veteran's contention that his claimed skin rash disability is related to herbicide exposure, the Board acknowledges that the Veteran's skin rash disability is not listed under the presumptive disease associated with herbicide exposure under 38 C.F.R. § 3.309(e). Notwithstanding 38 C.F.R. § 3.309(e), a veteran is not precluded from establishing service connection for diseases not subject to presumptive service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In establishing a direct causation on the basis of herbicide exposure the Veteran is still presumed to have been exposed to an herbicide agent under 3.307(a)(6)(iii). The Veteran was denied service connection by the RO due to the lack of any objective evidence of a skin rash in service. However, the Board notes that the Veteran is competent to report the symptoms of a skin rash. Although there is no indication of the development of a skin rash in the Veteran's service treatment records (STRs), the Board notes that the Veteran's participation in combat in Vietnam has been conceded, as is explained in the August 2009 rating decision granting service connection for post-traumatic stress disorder. As such, the presumptions of 38 U.S.C.A. § 1154(b) for combat Veterans is applicable here, and the Board finds that skin rash - such as may be caused by a fungal infection common in moist environments - would be consistent with his Vietnam combat experience. The private medical records the Veteran provided that indicate that he was diagnosed with lichen planus in November 1968 (15 months after service), and his October 1983 statement to a VA clinician that he had been treated for a rash after leaving Vietnam. Moreover, VA clinical records show treatment for skin conditions, including a relatively recent diagnosis of dermatitis/xerosis on his back as shown in a January 2010 VA treatment note. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to render a decision on the claim, as defined by law. In the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The evidence of record raises a reasonable possibility that his claim may be substantiated. Therefore, in view of the foregoing discussion, the Board finds it appropriate to remand the current appeal for such an examination. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of any outstanding VA and private medical records relevant to the Veteran's claim following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the claims file. If attempts to obtain any additionally identified records are unsuccessful, and it is determined that further attempts to obtain them would be futile, then make an express declaration to this effect and notify the Veteran of this in accordance with 38 C.F.R. § 3.159(c) and (e). 2. Following the conclusion of the above development, the Veteran shall be afforded an opportunity to attend an appropriate VA examination to evaluate the nature and etiology of any current skin disability. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that the claims file and any electronic records have been reviewed. Based on the clinical examination, a review of the evidence of record including the private medical records from November 1968 that diagnosed the Veteran with lichen planus, and with consideration of the Veteran's contention that his skin rash began in service, the examiner should identify a diagnosis of all skin rash disabilities and render an opinion as to the following question: Whether it is at least as likely as not (at least a 50 percent probability) that any currently diagnosed skin rash disability was incurred in, as a result of, or otherwise etiologically related to Veteran's active duty service, including exposure to herbicides in Vietnam. A complete rational for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide their reasons why an opinion would require speculation. The examiner must indicate whether there is any further need for information or testing necessary to make a determination. 3. After the development requested, including the VA examination, has been completed, the RO/AMC should review the examination reports to ensure that they are in complete compliance with the directives of this Remand. If a report is deficient in any manner, the RO/AMC should implement correct procedures at once. 4. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the AMC/RO must consider all the additional evidence, and the issue of entitlement to service connection for a skin rash disability should be readjudicated. If the benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond. The record should then be returned to the Board for appellate review. 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 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). _________________________________________________ JONATHAN B. KRAMER 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 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).