Citation Nr: 1803550 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-09 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for chloracne, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Marsh II, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1967 to July 1970, to include service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, AZ. In the March 2014 Substantive Appeal (VA Form 9), the Veteran requested a Travel Board hearing before a Veterans Law Judge. The record shows that the Veteran was scheduled for a December 2016 Board hearing; however, the Veteran's representative sent a November 2016 correspondence indicating that the Veteran wished to withdraw his request for a hearing.. Therefore, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for chloracne due to exposure to herbicides. His military records confirm his service in the Republic of Vietnam from January 1968 through August 1969. Therefore, he is presumed to have been exposed to herbicides. Certain diseases listed at 38 C.F.R. § 3.309(e) have been found by VA to be associated with herbicide exposure. The list includes chloaracne or other acneform diseases consistent with chloracne. Unlike with other conditions listed in 38 C.F.R. § 3.309, however, pursuant to 38 C.F.R. § 3.307(a)(6)(ii), chloracne must have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to herbicides during active military service. Thus, evidence would have to show diagnoses of chloracne by August 1970. In May 2011, the RO denied service connection for chloracne due to herbicide exposure, essentially based on findings that there was no evidence of chloracne during service or within one year from the last exposure. The Veteran contends that he suffers from chloracne as a result of Agent Orange exposure during service in Vietnam. The Veteran further contends that he began suffering from symptoms of chloracne while in service, and the symptoms have never subsided. Additionally, the Veteran asserts that he had a cyst removed from his neck in 1978. Efforts were taken to associate records of the cyst removal with the claims file, but were ultimately unsuccessful. The Veteran also submitted a lay statement from his wife indicating that the Veteran suffered from skin conditions at the time they met, prior to their marriage in 1973. However, the Veteran's service treatment records and separation examination are absent of any treatment or complaints of any skin condition. It is unclear from the evidence of record whether the Veteran has a confirmed diagnosis of chloracne or other acneform disease consistent with chloracne. A June 2011 VA Agent Orange examination notes "chloracne associated with Agent Orange evident at this time" but provides no objective findings or basis for the diagnosis. Additionally, the Veteran has submitted private treatment records which reflect diagnoses and treatment for sebaceous cysts, squamous cell carcinoma, and inflamed acne, but provide no objective findings or basis for the diagnoses. In this case, there is competent lay evidence suggesting that the Veteran was experiencing symptoms of chloracne during service or directly upon return from Vietnam and that he has experienced such symptoms for many years following service. See Layno v. Brown, 6 Vet. App. 465(1994) (a veteran is competent to report what comes to him through his senses). Thus, there is an indication that his chloracne may be related to his conceded in-service exposure to herbicides, despite the lack of medical evidence in the record to show they manifested within the requisite period required to grant service connection on a presumptive basis. The Board also notes that service connection can be established on a direct basis as due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to herbicides does not preclude direct service connection for other conditions based on exposure to herbicides); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, considering the June 2011 medical statement, the Veteran's private treatment records, and the Veteran's lay statements, the Board finds a VA examination and opinion are needed. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA skin examination. The electronic claims folder must be available for review. The examiner is requested to indicate whether the Veteran has chloracne or other acneform disease consistent with chloracne. If so, the examiner should state whether such is at least as likely as not related to active service or events therein, to include Agent Orange exposure. Attention is invited to the June 2011 VA Agent Orange Examination, the Veteran's private treatment records, and the Veteran's lay statements concerning his symptoms of chloracne during service. The examiner is advised that even if chloracne is not shown within one year after the last exposure to herbicides, service connection may still be established on a direct basis. The examiner must explain the rationale for all opinions, citing to supporting factual data as deemed appropriate. 2. The AOJ should then review the record, ensure all development sought is completed, and readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. 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 (2012). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).