Citation Nr: 1613819 Decision Date: 04/05/16 Archive Date: 04/13/16 DOCKET NO. 12-05 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a skin disorder of the arms, feet and groin. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Chris Miller, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1966 to October 1968, including service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from an October 2009 rating decision issued by the Regional Office (RO) in Milwaukee, Wisconsin. In July 2013, the Veteran and his wife testified at a videoconference hearing before the undersigned. A transcript of the hearing has been associated with the Veteran's claims file. In September 2014, the Board remanded the claim for additional development. The appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran asserts that he has a skin disability that is a consequence of his service in the Republic of Vietnam, due to the damp conditions that he encountered while walking through rice paddies. See July 2013 Board testimony, pp. 5 & 8. In his April 2009 claim, he stated that he was seeking service connection for a rash. Later, in his October 2010 notice of disagreement and in his testimony before the Board, he described his skin disabilities as bilateral foot jungle rot, tinea cruris (a fungal infection of the groin), and bilateral arm rash and dry skin. The Veteran asserts continuous and persistent symptomology since service, wherein his skin problems wax and wane. See February 2012 VA 9; see also lay statements of his wife and children. In a November 2008 record from the Amery Regional Medical Center, he reported a recurrence of rash, stating that it can worsen or improve in severity. The rash could be found on both arms. At an October 2008 VA Agent Orange examination, he reported past psoriatic type lesions on his arm since 1968. At a primary care session held in June 2013, it was noted that he still has problems with his skin that date back to Vietnam. There was a particular discussion of the Veteran's feet. While the physician stated that there was no current outbreak, he noted scarring on the Veteran's hands, feet, and groin. Based on his service in Vietnam, the Veteran is presumed to have been exposed to Agent Orange. 38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2015). Although the Veteran has not been diagnosed with a disease that is presumed service connected in veterans who have been exposed to Agent Orange, 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e), he may still establish that he has a disability due to such exposure. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). While the Veteran received a VA examination in December 2011, this examination was conducted during a period when the Veteran's skin problems were in remission. Consequently, there was no medical opinion offered as to the etiology of the Veteran's skin disorder. The Court has recognized that some conditions, by their inherent nature, wax and wane and accordingly are sometimes active and other times not. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994). In Ardison, the Court held that the Board may not rely on a medical examination performed during the inactive stage of a veteran's fluctuating condition. Id. Thus, pursuant to the Court's holding in Ardison, an examination must be conducted during a period when there is a flare up of his skin problems. See Barr v. Nicholson, 21 Vet. App. 303, 311-312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). This examination should also consider the records submitted by the Veteran, to include pharmacy records dating back to 1985 that the Veteran submitted in his assertion of continuous and persistent symptomology. Any outstanding records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary authorizations, request any outstanding dermatology treatment records of the Veteran. 2. Following completion of the above, schedule a VA dermatology examination concerning the Veteran's claimed disabilities. This examination must be conducted during a period where the Veteran's skin problems are flaring up. The AOJ should take appropriate steps to coordinate with the Veteran in conducting the examination during such a period. The examination should include all necessary diagnostic testing or evaluation. The claims file, including a complete copy of this remand, must be made available for review. The examiner should identify all skin disorders that the Veteran has had since approximately April 2009, when he filed his claim. Then, based on review of the record and examination of the Veteran, the examiner should indicate whether it is at least as likely as not (probability of 50 percent or more) that any such current skin disability had its onset in or is related to service, to include as due to Agent Orange exposure. The fact that any current skin disorder is not on the list of diseases presumed service connected in veterans exposed to Agent Orange should not be used as a reason for finding that a diagnosed skin disorder is not related to Agent Orange exposure, as the inclusion of certain skin disorders on the list does not preclude establishing service connection for a skin disorder not on the list. A complete rationale should be provided. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports and the lay statements of his family must be taken into account, along with the other evidence of record, in formulating the requested opinions. 3. After completing the above, and any other necessary development, readjudicate the Veteran's claim. If any benefit sought is not granted, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford a reasonable opportunity to respond before the case is returned to the Board for further review. The Veteran 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). _________________________________________________ Jonathan Hager 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) (2015).