Citation Nr: 1802761 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 10-14 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for venous insufficiency with stasis pigmentation of the bilateral lower extremities, including as due to in-service herbicide exposure. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD). 3. Entitlement to service connection for basal cell carcinoma of the face, including as due to in-service herbicide exposure. 4. Entitlement to an initial rating greater than 10 percent prior to November 5, 2013, and greater than 30 percent thereafter for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from August 1967 to June 1969, including in combat in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied, in pertinent part, the Veteran's claims of service connection for venous insufficiency with stasis pigmentation of the bilateral lower extremities (which was characterized as venous insufficiency with stasis pigmentation (claimed as bilateral leg and skin conditions), including as due to in-service herbicide exposure, GERD (which was characterized as acid reflux), and for basal cell carcinoma of the face, including as due to in-service herbicide exposure. The Veteran disagreed with this decision in May 2008. He perfected a timely appeal in April 2010. This matter next is on appeal from a February 2010 rating decision in which the RO granted the Veteran's claim of service connection for PTSD (which was characterized as posttraumatic stress disorder with panic disorder with agoraphobia), assigning a 10 percent rating effective June 19, 2007. The Veteran disagreed with this decision in April 2010. He perfected a timely appeal in June 2011. In March 2014, the RO assigned a higher initial 30 percent rating effective November 5, 2013, for the Veteran's service-connected PTSD. Because the initial ratings assigned to the Veteran's service-connected PTSD are not the maximum rating available for this disability, this claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated on the title page. This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant'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 on his part. REMAND The Veteran contends that he incurred venous insufficiency with stasis pigmentation of the bilateral lower extremities, GERD, and basal cell carcinoma of the face during active service. He alternatively contends that his in-service herbicide exposure while in combat in Vietnam caused or contributed to his current venous insufficiency with stasis pigmentation of the bilateral lower extremities and basal cell carcinoma of the face. He also contends that his service-connected PTSD is more disabling than currently (and initially) evaluated. Having reviewed the record evidence, the Board finds that additional development is necessary before the underlying claims can be adjudicated on the merits. With respect to the Veteran's service connection claims for venous insufficiency with stasis pigmentation of the bilateral lower extremities, GERD, and basal cell carcinoma of the face, the Board notes initially that his service personnel records confirm his honorable combat service in Vietnam. Thus, the Veteran's in-service herbicide exposure is presumed. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2017). The Board next notes initially that, although the Veteran's in-service herbicide exposure is presumed based on his honorable combat service in Vietnam, neither venous insufficiency with stasis pigmentation of the bilateral lower extremities nor basal cell carcinoma of the face are considered chronic diseases for which service connection is available on a presumptive basis due to such exposure. Id. Nevertheless, service connection may be available for these disabilities on a direct basis. See 38 C.F.R. §§ 3.303, 3.304 (2017). The record evidence also shows that the Veteran has been diagnosed as having and treated for each of these claimed disabilities since his service separation. The Board observes that service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). Unfortunately, to date, the Veteran has not been scheduled for appropriate examinations to determine the nature and etiology of any of these disabilities. The Board notes in this regard that VA's duty to assist includes providing an examination where necessary. Accordingly, the Board finds that, on remand, the Veteran should be scheduled for appropriate examinations to determine the nature and etiology of his venous insufficiency with stasis pigmentation of the bilateral lower extremities, GERD, and basal cell carcinoma of the face. With respect to the Veteran's higher initial rating claim for PTSD, the Board notes that he last was examined for PTSD for VA adjudication purposes in December 2013. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); but see Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (finding "mere passage of time" does not render old examination inadequate). Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examination in December 2013, the Board finds that, on remand, he should be scheduled for an updated VA examination to determine the current nature and severity of his service-connected PTSD. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. The AOJ also should attempt to obtain the Veteran's updated treatment records. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA and private treatment records which have not been obtained already. 2. Schedule the Veteran for examination to determine the nature and etiology of any venous insufficiency with stasis pigmentation of the bilateral lower extremities. The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that venous insufficiency with stasis pigmentation of the bilateral lower extremities, if diagnosed, is related to active service or any incident of service. The examiner should provide separate etiological opinions for each of the Veteran's bilateral lower extremities. A rationale also should be provided for any opinions expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the examiner should explain why this is so. 3. Schedule the Veteran for examination to determine the nature and etiology of any GERD. The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that GERD, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the examiner should explain why this is so. 4. Schedule the Veteran for examination to determine the nature and etiology of any basal cell carcinoma of the face. The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that basal cell carcinoma of the face, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the examiner should explain why this is so. 5. Schedule the Veteran for an updated examination to determine the current nature and severity of his service-connected PTSD. 6. Readjudicate the appeal. 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. §§ 5109B, 7112 (West 2012). _________________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), 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).