Citation Nr: 1341656 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 05-10 668A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a skin disorder, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to June 1970 with service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction over the case was subsequently transferred to the RO in Columbia, South Carolina. When this case was most recently before the Board in December 2012, it was remanded for additional development. The case has since been returned to the Board for appellate review. As an initial procedural matter, the RO denied service connection for athlete's foot, among other things, in a May 2009 rating decision. On review, the Veteran has not expressed disagreement with this portion of the decision to date. Thus, the issue of service connection for athlete's foot is not part of the instant appeal for a skin disorder and is not otherwise before the Board at this time. A review of the Virtual VA and VBMS electronic claims files reveals the August 2013 written appellate brief from the Veteran's representative, as well as additional evidence of the Veteran's ongoing VA treatment (Virtual VA). 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 In the December 2012 remand, the Board instructed the RO/AMC to undertake additional development, to include obtaining ongoing treatment records and providing the Veteran with another VA skin examination. On review, the RO/AMC did not issue a supplemental statement of the case (SSOC) following this additional development. The Veteran has not submitted a waiver of the agency of original jurisdiction's (AOJ) initial consideration of the evidence obtained on remand in relation to this issue. Moreover, in an August 2013 written appellate brief, the Veteran's representative specifically requested return of the case to the RO/AMC for review and issuance of an SSOC. Thus, the Board finds that a remand is required for the RO/AMC to issue a supplemental statement of the case. See 38 C.F.R. §§ 19.31 and 19.38 (requiring issuance of SSOC following Board remand unless Board specifies otherwise or purpose of remand is to assemble records previously considered and discussed in prior SSOC); 20.1304. The Board also finds that a clarifying medical opinion is needed as to the nature and etiology of any current skin disorder. In December 2012, the Veteran was afforded a second VA examination with the same examiner from the prior February 2011 VA examination. She diagnosed the Veteran with actinic keratoses, dermoid cysts, and chronic solar dermatitis and determined that it was less likely than not that the claimed skin disorders were related to the Veteran's military service, to include in-service symptomatology, herbicide exposure, and/or sun exposure. On review, it is unclear if the examiner specifically considered the diagnosis of chronic solar dermatitis in rendering the opinion. In addition, in light of the reopening and expansion of the claim on appeal, it appears that there may be additional skin diagnoses of record during the pendency of the entire claim not specifically addressed in this opinion. Thus, the Board finds that a clarifying medical opinion is needed to have sufficient medical evidence to decide the Veteran's claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (requirement of current disability is satisfied when claimant has a disability at the time a claim for VA disability compensation is filed or at any point during the pendency of that claim); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (When VA provides an examination or obtains an opinion, it must ensure that the examination or opinion is adequate.). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should refer the Veteran's claims file to the December 2012 VA examiner, or, if she is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any current skin disorder. An additional examination of the Veteran should be performed if deemed necessary by the individual providing the opinion. The examiner is requested to review all pertinent records associated with the claims file, including the December 2012 VA examination report. It should be noted that the Veteran was treated for various skin symptoms in service, including sore/ringworm on scalp (July-September 1968); boils on the nose and head (September-October 1968); lesions on the glands and foreskin (June 1969); pruritic blisters determined to be a drug reaction (November 1969); heat rash of the groin and buttocks (May 1970); pustule of the left foot (May 1970); and monilia infection of the groin (June 1970). The June 1970 separation examination noting that the Veteran's skin/lymphatics system was abnormal on clinical evaluation appears to correspond to the entry in the service treatment records of the monilia infection made that same day. The Veteran has offered three causal theories related to service for his current skin disorders - herbicide exposure, sun (ultraviolet ray) exposure, and in-service onset based on symptoms therein. He is presumed to have been exposed to herbicide agents during his military service. During the course of the claim, he has received treatment for various skin disorders with diagnoses including seborrheic dermatitis, verruca vulgaris (warts), cysts, actinic keratoses, actinic dermatosis, chronic solar dermatitis, topical med dermatitis, and seborrheic keratosis. See, e.g., VA treatment records from December 2000, April 2001, September 2002, June and August 2005, April, May, and August 2006, January and March 2007, June 2009, and April 2012; private treatment records from February 2000 (Dr. S.C.), September 2004 (Dr. B.J.), and May 2011 (Dr. R.J.). It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current skin disorders. For each skin disorder, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise related to the Veteran's military service, to include as a result of the symptomatology therein, in-service herbicide exposure, and/or in-service sun (ultraviolet ray) exposure. In rendering this opinion, the examiner should specifically address whether any of the current skin disorders as described above or otherwise observed in the claims file constitute the same disease or symptomatology of another disease (rather than a separate, diagnosable disorder). (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review. 2. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraph, the case should be reviewed by the RO/AMC on the basis of additional evidence, to include all evidence received since the July 2012 SSOC. If the benefit sought is not granted, the Veteran and his representative should be furnished an SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ J.W. ZISSIMOS 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).