Citation Nr: 1601541	
Decision Date: 01/14/16    Archive Date: 01/21/16

DOCKET NO.  12-11 421A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1. Entitlement to service connection for depression.

2. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure.

3. Entitlement to service connection for hypertension. 

4. Entitlement to service connection for a skin condition, to include as secondary to a service connected condition or as due to herbicide exposure.


REPRESENTATION

Appellant represented by:	The American Legion




WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Dustin Ware, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1969 to June 1971.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) Atlanta, Georgia.

The Veteran testified before the Board at an August 2015 hearing conducted at the RO.  A transcript of the hearing is of record.

The issues of entitlement to service connection for diabetes mellitus, hypertension, and a skin condition are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

1. On August 24, 2015, prior to the promulgation of a decision in the appeal of entitlement to service connection for depression, the Veteran testified before the Board that a withdrawal of this appeal is requested.



CONCLUSION OF LAW

1. In regards to the appeal of the issue of entitlement to service connection for depression the criteria for withdrawal of an appeal have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015).


ORDER

Entitlement to service connection for depression is dismissed.  


REMAND

The Veteran claims entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, entitlement to service connection for hypertension, and entitlement to service connection for a skin condition, to include as secondary to a service connected condition or as due to herbicide exposure.

In August 2015, the Veteran testified that he receives treatment at VA facilities in Chattanooga and Murfreesboro, Tennessee.  A review of the claims file shows only VA treatment records from August 23-24, 2012.  Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  On remand, VA must undertake efforts to acquire the Veteran's VA treatment records as they may be material to his claims.  See 38 U.S.C.A. § 5103A(b).
   
Additionally, the VA has a duty to provide an examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease.  See 38 C.F.R. § 3.159(c)(4) (2015); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The Veteran has provided Disability Benefits Questionnaires (DBQ) completed by private physicians in September 2015 that diagnose diabetes mellitus, hypertension, and multiple skin conditions.  These DBQs do not include opinions on the etiology of these conditions.  However, the Veteran has stated that VA physicians have indicated to him his conditions may be service related and he should obtain an examination.  August 2013 Veteran's Statement, September 2013 Veteran's Statement.  Therefore, it is necessary that VA examinations be conducted and opinions with supporting rational provided on the etiologies of the Veteran's diabetes mellitus, hypertension, and skin condition.

Finally, it is necessary that a copy of his service personnel records be associated with the claims file.  The Board notes while there has been a formal finding as to the unavailability of the service treatment records there has been no such finding as to the service personnel records.    

Accordingly, the case is REMANDED for the following action:

1. Obtain and associate with the claims file all outstanding VA treatment records.  Efforts to obtain these records must be associated with the claims file and requests for these records must continue until the Agency of Original Jurisdiction determines that the records sought do not exist or that further efforts to obtain those records would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record.  38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2) (2015). 

2. Request a copy of the Veterans complete service personnel records.  Efforts to obtain these records must be associated with the claims file and requests for these records must continue until the Agency of Original Jurisdiction determines that the records sought do not exist or that further efforts to obtain those records would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record.  38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2) (2015).

3. Following the completion of items (1) and (2), schedule the Veteran for VA examinations for the purpose of ascertaining the nature and etiology of diabetes mellitus, any skin conditions, and hypertension.  All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail.  The claims file should be made available for review in connection with the examination. 

The examiner is requested to address the following:

a. Is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's diabetes mellitus, type II, is etiologically related to his active duty service?

b. Is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran's hypertension is etiologically related to his active duty service?

c. Is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any diagnosed skin condition is etiologically related to his active duty service?

d. Is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any diagnosed skin condition is proximately due to (caused by) the Veteran's diabetes mellitus?

e. If the answer to (a) is less likely than not (i.e., probability less than 50 percent), is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed skin condition has been aggravated beyond its normal progression by the Veteran's diabetes mellitus?

Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.  

The examiner is requested to provide a complete rationale for any opinion expressed based on the examiner's clinical experience, medical expertise, and established medical principles.  If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 

4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims based on the entirety of the evidence.  If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a Supplemental Statement of the Case.  An appropriate period of time should be allowed for response.

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 2014).



______________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs