Citation Nr: 1509401 Decision Date: 03/04/15 Archive Date: 03/17/15 DOCKET NO. 13-06 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma ISSUES 1. Entitlement to service connection for skin conditions, including basal cell carcinoma, neurofibroma, and actinic keratoses, to include as due to Agent Orange exposure. 2. Entitlement to service connection for restless leg syndrome, to include as due to Agent Orange exposure or as secondary to service-connected right calf and right foot muscle shrapnel injury residuals. REPRESENTATION Appellant represented by: Robert C. Brown, Jr., Esq. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse. ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to October 1969. He is the recipient of, among other decorations, a Purple Heart medal with one Oak Leaf Cluster, and the Vietnam Service Medal with two Bronze Stars. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In January 2014, the Veteran testified before the undersigned Veterans Law Judge at a videoconference Board hearing at RO in Muskogee, Oklahoma. A transcript of the proceeding has been associated with the claims file. The Board has not only reviewed the Veteran's physical claims file, but also the electronic records maintained in Virtual VA and VBMS to ensure consideration of the totality of the evidence. The issues of entitlement to service connection for residuals of a left leg shrapnel wound, a cervical spine condition with left hand paresthesias, and a bilateral knee condition, and whether new and material evidence has been received sufficient to reopen claims for service connection for a left shoulder condition and a right shoulder condition, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these matters, and they are referred to the AOJ for appropriate action. See Board hearing transcript at 17 (left leg shrapnel); Correspondence, January 2013; see also Private Evaluation, Dr. J.E., January 2013. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND A. Skin Cancer The Veteran served on active duty from January 1968 to October 1969, including service in Vietnam as an infantryman from June 1968 to June 1969. He claims that he incurred skin conditions (claimed as "skin cancer") due to sun exposure in Vietnam. He testified at the Board hearing that he spent most of his service in Vietnam outdoors, and that his skin burned repeatedly there and was sore. In the alternative, he asserts that his skin conditions were caused by Agent Orange exposure in Vietnam. As an initial matter, based on the Veteran's service in in Vietnam, exposure to herbicides is presumed. See 38 C.F.R. § 3.307(a)(6)(iii) (2014). Skin cancers, neurofibromas, and actinic keratosis, however, are not among the diseases listed in 38 C.F.R. § 3.309(e) for which presumptive service connection may be awarded due to herbicide exposure. The Veteran is not, however precluded from otherwise proving entitlement to service connection on a direct basis (i.e., with evidence of a nexus to such presumed herbicide exposure). See Combee v. Brown, 5 Vet. App. 248 (1993). The Veteran's service treatment records are silent as to any treatment for a skin condition. The Veteran testified that his post-service employment has mostly been outdoors, including as a peanut and wheat farmer for eight years, and subsequently building oil field sites and cleaning up oil well pits. A July 2002 VA agent orange registry examination reflects diagnosed actinic keratoses of the arms and face, but includes no etiological opinion. Private treatment records from Abbott Dermatology dated from September 2007 to November 2010 reflect diagnosed actinic keratoses of the forehead, face, right ear, lower lip, neck, arms, hands and fingers, and left foot. Biopsy reports show diagnosed basal cell carcinoma of the right lower back in September 2007, a neurofibroma of the mid-back in October 2009, and basal cell carcinoma of the forehead in October 2010. Also, a June 2010 record reflects diagnosed basal cell carcinoma of the back, although the later biopsy report ultimately showed it was actinic keratosis. Also, a September 2007 letter notes a prior history of basal cell carcinoma of the nose treated by Dr. Le- and Dr. Lo-. The Veteran reported in a recent statement submitted at the hearing that his nose was treated surgically in 2005. The Veteran also testified that he was currently receiving treatment for a skin condition on one of his legs. A January 2013 private evaluation and opinion letter from Dr. J.E. reflects that he reviewed some of the Veteran's records in the claims file, noted the Veteran's history of basal cell carcinoma and actinic keratoses, and opined that the Veteran's basal cell carcinoma was caused by the Veteran's exposure to intense sunlight in Vietnam and to Agent Orange causing cellular mutation. No opinion was provided regarding the Veteran's actinic keratoses. The Veteran has not been provided with a VA examination relating to his claim. While the Board acknowledges the above opinion from Dr. J.E., the Board finds that this matter should nevertheless be remanded for a VA medical examination, including to address both the Veteran's in-service and post-service sun exposure, as well as the etiology of Veteran's actinic keratoses. Also, none of the Veteran's records of treatment for his history of basal cell carcinoma by Dr. Le- or Dr. Lo- have been associated with the claims file. Therefore, on remand, these outstanding records should be associated with the claims file. In addition, all the Veteran's more recent VA treatment records dated since March 2013 should be associated with the claims file. Finally, Dr. J.E. noted in his January 2013 letter that the Veteran was treated for basal cell carcinoma of the lower lip in 2011, but none of the Veteran's dermatological records from Abbott Dermatology dated since November 2010 have been associated with the claims file. As noted above, the Veteran testified that he was being treated for a current skin condition on one of his legs. Therefore, on remand, all of the Veteran's treatment records from Abbott Dermatology dated since November 2010 should be associated with the claims file, and the Veteran should be asked to identify any other outstanding records of dermatological treatment. B. Restless Leg The Veteran also claims that he has restless leg syndrome due to his active service, including due to his presumed herbicide exposure in Vietnam. In the alternative, the Veteran asserts that his restless leg syndrome is due to his in-service shrapnel wounds to his right leg, or otherwise is secondary to his service-connected right calf and right foot muscle shrapnel injury residuals. See Correspondence, April 2003; Board hearing transcript at 16-17. By way of background, the Board notes that the Veteran is already service-connected for a muscle injury of the right calf and right foot due to shrapnel wounds in service. As noted above, based on the Veteran's service in in Vietnam, exposure to herbicides is presumed. See 38 C.F.R. § 3.307(a)(6)(iii) (2014). Restless leg syndrome, however, is not among the diseases listed in 38 C.F.R. § 3.309(e) for which presumptive service connection may be awarded. The Board finds it worthy to note that although the listed "chronic" diseases include "other organic diseases of the nervous system," there is no evidence that the Veteran's restless leg syndrome constitutes an organic disease of the nervous system. In fact, the Board will note that the medical diagnostic code for restless legs (ICD-9 333.99) is listed under "Hereditary and Degenerative Diseases of the Central Nervous System (330-337)," whereas, for example, periodic limb movement disorder (ICD-9 327.51) is listed under "Organic Sleep Related Movement Disorders." Nevertheless, the Veteran may prove entitlement to service connection for restless leg syndrome on a direct basis (i.e., with evidence of a nexus to his presumed herbicide exposure). See Combee v. Brown, 5 Vet. App. 248 (1993). The Veteran testified that his symptoms began within around a year of separation from service and that his wife at that time complained that he was always moving his legs. He described it as a crawling sensation causing him to continuously move his legs. His current wife testified that the Veteran had shown symptoms of moving his legs their entire 22-year marriage during the daytime and nighttime. A January 2012 VA treatment record reflects diagnosed restless leg syndrome. See Virtual VA, August 2013 (received) at 33 of 36. The Veteran testified that he was prescribed medication to treat his restless leg syndrome by a private family physician for about three to five years. He mentioned a Dr. R. at the hearing as well, although it is not clear whether Dr. R. is his private family physician or another treating physician. None of these treatment records, however, have been associated with the claims file. Therefore, the Board finds that this matter should be remanded to obtain any outstanding treatment records from the Veteran's primary care physician, and if that is not Dr. R., then also from Dr. R. relating to his claim. The January 2013 opinion letter from Dr. J.E. also addressed the Veteran's restless leg syndrome. In his letter, Dr. J.E. opined that the Veteran's Agent Orange exposure caused neurological damage resulting in restless leg syndrome, without providing any further rationale. The Veteran has not been provided with a VA examination relating to his claim. In light of the above evidence of the diagnosis of restless leg syndrome, the Veteran's reported history of symptoms beginning shortly after his discharge, and the positive medical opinion (albeit it brief) of Dr. J.E., the Board finds that on remand, the Veteran should be afforded a VA examination relating to his claim, including to address his presumed herbicide exposure in Vietnam, as well as his contention that his restless legs are due to his right leg shrapnel injury in service, or that it is otherwise caused or aggravated by his service-connected right calf muscle disability relating to the shrapnel injury. Also, the Board notes that the January 2011 and March 2011 VCAA notice letters did not address the Veteran's secondary service connection contention from his April 2003 correspondence. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file copies of all of the Veteran's VA treatment records dated since March 2013. 2. Associate with the claims file any outstanding private treatment records from Dr. Le- and Dr. Lo- relating to the Veteran's claimed skin conditions, including but not limited to basal cell carcinoma of the nose and any surgical treatment therefor. 3. Associate with the claims file any private treatment records from Abbott Dermatology dated since November 2010. Also, ask the Veteran to identify any other records of private treatment for his claimed skin conditions (other than at Abbott Dermatology), noting that he has reported recent treatment for his lip and left leg at the Board hearing. 4. Associate with the claims file all of the Veteran's private treatment records from Dr. R. relating to his claimed restless leg syndrome. Also ask the Veteran to clarify whether Dr. R. is his family physician he referred to at the Board hearing regarding treatment for his restless leg syndrome. If not, ask the Veteran to identify his private family physician who treated him for restless leg syndrome so that any outstanding relevant records may be obtained. 5. After all of the above development has been completed, schedule the Veteran for a VA dermatological examination to determine the current nature and the etiology of his basal cell carcinoma, neurofibroma (mid-back), and actinic keratoses. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The complete claims folder must be provided to the examiner for review in conjunction with the examination, including a copy of this Board remand, and the examiner must note that the claims folder has been reviewed. The examiner should indicate whether it is "at least as likely as not" (meaning likelihood of at least 50%) that the Veteran's basal cell carcinoma, neurofibroma, and actinic keratoses are related to the Veteran's active service, including a) his sun exposure in Vietnam, and b) his presumed herbicide exposure in Vietnam. Please note to the VA examiner that the opinion should specifically address the Veteran's post-service sun exposure, and explain whether it is "at least as likely as not" that each of the Veteran's skin conditions are related to his in-service sun exposure in Vietnam regardless of his post-service sun exposure farming and in oil wells (for example, regardless of whether any post-service sun exposure may have additionally contributed to his skin conditions or aggravated them). 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. As to any opinions expressed, it would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 6. Provide the Veteran with a new VCAA notice relating to his claim for service connection for restless leg syndrome that includes an explanation of how to substantiate a claim based on secondary service connection. 7. After all of the development in paragraphs (1), (4), and (6) has been completed, schedule the Veteran for a VA examination to determine the current nature and the etiology of his restless leg syndrome. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The complete claims folder must be provided to the examiner for review in conjunction with the examination, including a copy of this Board remand, and the examiner must note that the claims folder has been reviewed. The examiner should indicate whether it is "at least as likely as not" (meaning likelihood of at least 50%) that the Veteran's restless leg syndrome is related to his active service, including the Veteran's presumed herbicide exposure, and including his history of a right calf shrapnel wound. Also, please ask the VA examiner to address whether the Veteran's restless leg syndrome was caused or aggravated by (beyond the natural progress of the disease) his service-connected right calf and right foot muscle disability relating to his shrapnel wounds in service. 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. As to any opinions expressed, it would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 8. Then, readjudicate the Veteran's claims. If any claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on this matter. 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 2014). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).