Citation Nr: 1751048 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-35 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a skin disability, to include due to exposure to herbicide agents. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney INTRODUCTION The Veteran served on active duty from March 1966 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office in Hartford, Connecticut (RO), denying service connection for skin sores. In July 2015, the Board remanded this matter for a VA medical opinion, and the case has been returned for appellate consideration. This appeal was processed using the Virtual VA (VVA) and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future review of this Veteran's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. The Veteran seeks entitlement to service connection for a skin condition, specifically skin sores under the arms, that he claims he has had since the 1960s while serving at U-Tapeo Air Force Base in Thailand. He also claims that herbicide agents were present on the base and that he was exposed to them. The Veteran also claims that, since discharge from service, he has been treated for this skin condition during the 70s, 80s and 90s, as well as currently. The evidence of record suggests that there are outstanding relevant service treatment records that may address whether the Veteran's skin condition was incurred in or aggravated by service. The Veteran's Report of Medical History, which was part of his December 1969 separation examination report, shows that the Veteran had childhood asthma, including severe attacks, which was controlled by twice weekly medication. The Veteran reported that during childhood and service, he suffered severe attacks of hay fever, which was treated with unknown medication. A March 1970 clinical record history details the Veteran's gastrointestinal disorder and diagnosis of hiatal hernia that occurred during service. This report enumerated several hospitalizations, while the Veteran was in service: 1) hospitalized in Thailand for two weeks; 2) hospitalized at Clark Air Force Base in the Philippines for two weeks; 3) subsequent treatment at Clark for four days; 4) psychiatric evaluation at Eglin Air Force Base in Florida for three weeks; and 5) treatment at Travis Air Force Base in California. These courses of care occurred during 1968 and 1969. The evidence of record shows that the Veteran had considerable contact with healthcare providers starting when he arrived in Thailand. Regardless of the underlying complaint for these contacts, it is possible that observations of the condition of the Veteran's skin were made and recorded during those contacts, thereby making those service treatment records relevant. An example of such documentation appears in an August 2011 report from Dr. P.G. of a gastrointestinal examination, in which it was noted: "He has a rash under his arms since he was in the military." (April 1, 2014, MTR, non-gov't, at 56.) Accordingly, attempts must be made to obtain the medical records corresponding to the above noted courses of care while the Veteran was in service. On remand, the Board finds that, after the above development is completed, the Veteran must be afforded a new VA examination to determine the etiology of the Veteran's skin disability, taking into account the Veteran's statements about his symptoms as well as his recorded history of allergies and asthma, the record evidence, and accepted medical principles. See 38 C.F.R. § 3.159(c)(4) (2017). If the examiner concludes that there is no current skin condition, the examiner should attempt to reconcile findings in the record that document diagnoses and treatment for such a condition. The Board recognizes that the United States Court of Appeals for Veterans Claims has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). On remand, the RO should also associate ongoing pertinent VA and private treatment records with the record before the Board. 38 C.F.R. § 3.159(c) (2017). Accordingly, the case is REMANDED for the following actions: 1. The AOJ must attempt to obtain copies of all records pertaining to the Veteran's medical care in Thailand, at Clark Air Force Base, at Eglin Air Force Base, and at Travis Air Force Base from 1968 to 1969. All attempts to secure this evidence must be documented in the claims file by the AOJ. If, after being advised that the requested records do not exist or the custodian does not have them, the AOJ must notify the Veteran and (a) identify the specific records the AOJ was unable to obtain; (b) briefly explain the efforts that the AOJ made to obtain those records; (c) describe any further action to be taken by the AOJ with respect to the claim; and (d) that the Veteran is ultimately responsible for providing the evidence. The Veteran and his representative must be given the opportunity to respond. 2. After all additional records are associated with the claims file, the AOJ must arrange for an appropriate VA examination to determine the nature and etiology of any diagnosed skin disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims folder (including Virtual VA and VBMS documents) and a copy of this REMAND must be provided to the examiner in conjunction with the examination. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements; the examiner must indicate on the examination report that such review was undertaken. The examiner must obtain a full history from the Veteran. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation. The examiner is asked to respond to the following: a) Identify all current diagnoses for any skin disability, and any which manifested during the appeal period. b) For any identified skin disabilities, provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that such disability was either incurred in or aggravated by service, to include exposure to herbicide agents therein. In rendering the requested opinion, the examiner must address specifically the significance, if any, of allergies such as hay fever and asthma, as noted in the Veteran's December 1969 Report of Medical History, to skin conditions. The examiner should reconcile any opinion with the evidence of record, and cite to the record as appropriate. Also, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 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. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the claim on appeal. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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 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). _________________________________________________ LANA K. JENG 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) (2017).