Citation Nr: 1343526 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 09-12 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a skin disability, to include as secondary to Agent Orange exposure. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1968 to February 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Roanoke RO. In his April 2009 VA Form 9 (Substantive Appeal) the Veteran requested a hearing before the Board. In July 2013, he failed (without giving cause) to appear for such hearing on the date it was scheduled. In September 2013, the case was remanded for additional development and to satisfy due process requirements. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND As was noted in the September 2013 remand, the instant claim is for a skin disability, to include actinic keratosis. The Veteran alleges that his skin disability is the result of Agent Orange exposure while in Vietnam. Service personnel records confirm he served in Vietnam from February 1969 to February 1970. Accordingly, he isd presumed to have been exposed to, Agent Orange. Service treatment records (STRs) are silent for complaints of, treatment for, and diagnosis of any skin disability. A separation examination (and additional STRs) was determined to be unavailable. Postservice treatment records show the Veteran was treated for moles of the upper and lower chest wall in February 1979 and VA treatment records show a history of actinic keratosis beginning in May 2000. However, the most recent VA treatment record (dated in May 2013) note that the Veteran does not have any lesions, rash, or pruitis of the skin. The Board notes that actinic keratosis is not a disease associated with exposure to herbicide agents as listed in the presumptive service connection provisions of 38 C.F.R. § 3.307, 3.309(e). However, the record is incomplete (i.e., there may be other skin diagnoses noted in outstanding treatment records), and the Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran has not been afforded an examination with respect to this claim. VA must provide an examination to secure a medical nexus opinion when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which he qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with his service or a service-connected disability; but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). In McLendon, the Court noted that the third prong of the assessment as to whether an examination is needed is a low threshold requirement. As the evidence shows that the Veteran has a skin disability and exposure to Agent Orange is conceded, the "low threshold" standard as to when a VA examination to secure medical nexus opinion is necessary is met. In addition, the record reflects that the Veteran has received, and continues to receive, treatment at the Mountain Home VA Medical Center. Records of past treatment from May 2007 to May 2012, are not been associated with the record. Furthermore, the most recent treatment report in the record is dated in May 2013. VA is obligated to obtain and consider all relevant treatment records in adjudicating this appeal. 38 C.F.R. § 3.159(c)(2). On remand all outstanding VA treatment records must be secured. Accordingly, the case is REMANDED for the following action: 1. The RO should secure for the record copies of the complete clinical records of all VA evaluations and/or treatment the Veteran has received for skin disability from May 2007 to May 2012 and from May 2013 to the present. 2. The RO should thereafter arrange for the Veteran to be examined by a dermatologist to determine the nature and likely etiology of his skin disability. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on examination of the Veteran and review of his claims file, the examiner should provide opinions that respond to the following: a. Identify (by medical diagnosis) each skin disability entity found. b. Please identify the likely etiology for each skin disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that the diagnosed skin disability is related to the Veteran's service, to include as due to exposure to Agent Orange therein. The examiner must explain the rationale for all opinions. 3. The RO should then review the record and readjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, 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 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). _________________________________________________ GEORGE R. SENYK 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).