Citation Nr: 1340512 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 08-27 601 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for skin cancer. 3. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 4. Entitlement to a total disability rating by reason of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from September 1963 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from rating decisions issued by the Regional Office (RO) in Providence, Rhode Island. The Veteran testified at a hearing before the undersigned Acting Veterans Law Judge in March 2011. The Veteran's representative indicated that the Veteran wanted to file a claim for service connection for multiple myeloma. That issue has not been adjudicated by the agency of original jurisdiction (AOJ), hence the Board does not have jurisdiction over it. It is referred to the RO for appropriate action. 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 Veteran contends that he has hypertension and skin cancer that are related to his service, including exposure to herbicides in service. Review of the Veteran's service records confirm service in Vietnam during the Vietnam War. Hence, exposure to herbicides is conceded. While certain diseases listed at 38 C.F.R. § 3.309 are presumptively associated with exposure to herbicides, these diseases do not include hypertension or skin cancers. However, a Veteran may still establish a nexus to service by proving direct service connection. Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). The Veteran submitted a letter dated in July 2012 from his primary care doctor opining that the Veteran's exposure to herbicides in service may have put him at a higher risk of developing skin cancer. He also submitted a February 2007 letter from his dermatologist stating that the Veteran's skin cancers are most often caused by exposure to the sun, but there was a slight possibility that some of the cancers were caused by exposure to herbicides in service. At his hearing in March 2011 the Veteran testified that he was exposed to the sun frequently while in Vietnam, but that he had little sun exposure after service. These facts satisfy the low standard for provision of a VA examination. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran also alleges that he had hypertension in service. His separation examination showed elevated blood pressure, but it was not high enough to meet VA's definition of hypertension. At his hearing, the Veteran testified that his blood pressure at the time had been higher, but he was told to lie down and then his blood pressure was then taken again and that reading was what was recorded on the separation examination. The Veteran alleged that he was treated for hypertension since service. On his claim form he wrote that he was treated for his hypertension by a private physician beginning in 1966 to the present time. However, there is no indication that any attempt was made to try to obtain treatment records from this physician. Additionally, the Veteran's representative alleged that the Veteran's hypertension was aggravated by his service connected PTSD. In light of these circumstances, the Veteran should be provided a VA examination to determine the etiology of his hypertension. At the March 2011 hearing the Veteran indicated that he wanted to appeal the denial of an increased rating for PTSD and the denial of TDIU. The undersigned accepted this representation as a notice of disagreement pertaining to these issues. Therefore, they must be remanded for the issuance of a statement of the case (SOC). An unprocessed notice of disagreement should be remanded, not referred, to the AOJ for issuance of a statement of the case (SOC). Manlincon v. West, 12 Vet. App 238, 240-241 (1999). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify all health care providers who treated him for hypertension since service and provide appropriate releases to enable VA to obtain these records. The Veteran should also be informed that alternatively he could obtain the records himself and submit them to VA. If records are identified and the Veteran provides proper releases, all identified treatment records should be obtained. If records are identified but cannot be obtained, the attempts made to obtain the records should be documented in the claims file and the Veteran should be notified of VA's inability to obtain the records. 2. Afford the Veteran a VA examination to determine the etiology of his skin cancers. The examiner should review the claims file. He or she should provide an opinion as to whether it is at least as likely as not (at least 50 percent likely) that the Veteran's skin cancers were caused or aggravated (made permanently worse) by a disease or injury in service. In doing so, the examiner should specifically address (1) whether the Veteran's skin cancers are at least as likely not due to exposure to herbicides in service, and (2) whether the Veteran's skin cancers are at least as likely as not due to exposure to the sun in service. A complete rationale should be provided for all opinions expressed in the report of examination. If the examiner is unable to provide the requested opinion(s) without resort to undue speculation, he or she should explain why this is the case. 3. Afford the Veteran a VA examination to determine the etiology of his hypertension. The examiner should review the claims file. The examiner should provide an opinion whether it is at least as likely as not (at least 50 percent likely) that the Veteran's hypertension was caused or aggravated (made permanently worse) by his service or a service connected disability. The examiner should specifically discuss (1) whether it is at least as likely as not that the Veteran's hypertension is due to exposure to herbicides in service, and (2) whether it is at least as likely as not that his hypertension was aggravated by the service connected PTSD. A complete rationale should be provided for the opinion set forth in the report of examination. If the examiner is unable to provide the requested opinion(s) with resort to undue speculation, he or she should explain why this is the case. 4. After completion of the above development, the Veteran's claim should be re-adjudicated. If the determinations remain unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. 5. Issue the Veteran SOCs pertaining to the issues of entitlement to a rating in excess of 50 percent for PTSD and entitlement to TDIU, and inform the Veteran of the steps necessary to submit a timely substantive appeal. Thereafter, if appropriate, the claims should be returned to the Board for appellate disposition. 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. 2012). _________________________________________________ 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) (2012).