Citation Nr: 1633119 Decision Date: 08/22/16 Archive Date: 08/26/16 DOCKET NO. 14-00 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a skin disability, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from August 1958 to August 1960 and from June 1961 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Houston, Texas. In June 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. At the hearing, the Veteran requested the record be held open for sixty days to attempt to obtain and submit a private medical opinion. The record was held open in excess of the requested sixty days; however, no additional evidence has been received to date. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Remand is required to afford the Veteran a VA examination to determine the etiology of the his skin disability as he has not previously been afforded a VA examination. The Veteran contends that his current skin disability is related to service, to include in-service exposure to Agent Orange. As the Veteran's service personnel records document his service in the Republic of Vietnam during the Vietnam era, his in-service exposure to herbicides is presumed. 38 U.S.C.A. § 1116(f); 38 C.F.R. §§ 3.307, 3.309. Although it is unclear whether the Veteran has a current skin disability for which service connection may be presumptively granted on the basis of exposure to herbicides, the Board notes that service connection may be still be granted on a direct basis if the evidence indicates the Veteran's current disability is related to active duty, to include exposure to herbicides. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As a result, the Board finds that on remand, the examiner should ascertain whether any skin disability diagnosed during the pendency of the appeal is etiologically related to active duty, to include exposure to herbicides. See McLendon, 20 Vet. App. 79, 83; 38 C.F.R. § 3.159(c)(4). Service treatment records note a skin disability. Specifically, the February1979 retirement examination notes that the Veteran had dermatofibroma. Although the Veteran has not received an actual diagnosis for his skin disability, he reported that he observed a small "wart" on his arm approximately six months after discharge from service and subsequently more appeared. See the June 2016 Travel Board hearing transcript. During the hearing, the VLJ noted the observation of red marks on the Veteran's arms. Id. Since service treatment records note a skin disability and the evidence shows that the Veteran has a current skin disability, there is an indication that the skin disability is related to service. However, as there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim, a VA medical opinion is necessary. See McLendon, supra; see also 38 U.S.C.A. § 5103A (d)(2), 38 C.F.R. § 3.159(c)(4)(i). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of any skin disability diagnosed during the pendency of the appeal. The claims file, including a copy of this remand should be made available to and be reviewed by the examiner in conjunction with the examination. The VA examiner should review and comment on the service treatment records, post-service treatment records, June 2016 hearing transcript, and consider the Veteran's presumed in-service exposure to herbicides. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any skin disability diagnosed during the pendency of the appeal is related to active duty, to include exposure to herbicides. Specifically, the examiner is asked to comment on the in-service notation of dermatofibroma of the leg. A complete rationale should be provided for any opinion or conclusion expressed. 3. After completing the above directives and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the Veteran's claim for entitlement to service connection for a skin disability, to include as due to herbicide exposure. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ Nathaniel J. Doan 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 the appeal. 38 C.F.R. § 20.1100(b) (2015).