Citation Nr: 1804808 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-13 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a skin disability, to include jock itch. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a cardiac disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1975 to September 1978 with additional service in the Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in September 2017. A transcript of the hearing is associated with the claims files. The Board has reviewed the electronic records maintained in the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran seeks entitlement to service connection for: a skin disability, to include jock itch, a right knee disability, and a cardiac disability. Although the Board sincerely regrets any delay, further development is required prior to adjudicating these claims. As an initial matter, the Board notes that the Veteran testified that he had 18 years of service in the reserves following active duty. While some service records associated with the record, his reserve records and reserve dates/ specific periods of active duty for training (ACDUTRA) and/or inactive duty for training (INACDUTRA) have not been obtained or identified. This is particularly significant in light of the fact that the Veteran contends that he complained of knee problems during reserve service. Accordingly, on remand, all his service records must be obtained as well as verification of all periods of ACDUTRA and/or INACDUTRA The VA must provide an examination when the evidence shows: (1) A current disability; (2) an in-service event, injury, or disease; (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for the VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board first addresses the Veteran's claim for service connection for a skin disability, to include jock itch. The Board has considered the required elements in consideration of the Veteran's claim for service connection for a skin disability, to include jock itch. With regard to the first element, the Veteran testified that he had ongoing difficulty with jock itch since service. See Hearing Testimony, dated September 2017. As to the second element, the Veteran also testified that the Veteran had had jock itch on active duty, during basic training, and was given treatment for this condition. Id. The Veteran is competent to testify to the onset and presence of a skin condition, such as a rash. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). There is insufficient competent evidence of record for the VA to make a decision regarding service connection in this case. There is no opinion regarding the relationship of the skin disability during the appellate period and service. As such, the Veteran should be scheduled for an appropriate VA examination to assess whether a causal link exists to his skin disability. The Board next addresses the Veteran's claim for service connection for a right knee disability. The Board has considered the required elements in consideration of the Veteran's claim of service connection for a right knee disability. With regard to the first element, the Veteran had a right knee arthroscopy in July 2011 due to a grade four chondral defect. See Private Treatment Records, dated December 2008 and July 2011. At the hearing, the Veteran asserted that he had had pain and instability of the right knee ongoing since the surgery. See Hearing Transcript, dated September 2017. The Veteran testified at the hearing that he had had pain during his active service, notably during running and training with his boots, but he did not complain about his knee until he was in the Reserves. See Hearing Transcript, dated September 2017. There is insufficient competent evidence of record for the VA to make a decision regarding service connection in this case. There is no opinion regarding the relationship of the right knee disability during the appellate period to service. As such, the Veteran should be scheduled for an appropriate VA examination to assess whether a causal link exists to his right knee disability. The Board next seeks to address the Veteran's claim for service connection for a cardiac disability. The Board has considered the required elements in consideration of the Veteran's claim of service connection for a cardiac disability, to include cardiomyopathy. With regard to the first element, the Veteran was diagnosed with mild cardiomyopathy. See Private Treatment Records, dated January 2009, November 2010, July 2011, April 2012 . The Veteran implied, via his representative, at the hearing, that he had been exposed to caustic and toxic substances during service that he believes may have caused his cardiac disability. See Hearing Transcript, dated September 2017. There is insufficient competent evidence of record for the VA to make a decision regarding service connection in this case. There is no evidence regarding the presence or absence of exposure to toxic and caustic substances during the Veteran's time in active service. This is necessary to determine any causation of exposure to a cardiac disability. Therefore, it is necessary to obtain the Veteran's service personnel records to assist in determining the presence or absence of a causal nexus between the Veteran's service and his current cardiac disability. Additionally, there is no opinion regarding the relationship of the cardiac disability during the appellate period to service. As such, the Veteran should be scheduled for an appropriate VA examination to assess whether a causal link exists to his cardiac disability. Accordingly, the case is REMANDED for the following actions: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Appropriate efforts should be made to obtain and associate with this case file any outstanding private treatment record, with all necessary assistance from the Veteran. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Undertake appropriate action to attempt to verify all of the Veteran's periods of ACDUTRA and INACDUTRA, to include the precise dates of each. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 4. Request from the National Personnel Records Center (NPRC), the Veteran's Guard Unit, or any other appropriate entity, any additional service treatment records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 5. Request that the JSRRC (or any other official source/agency deemed appropriate) provide any information that might corroborate the Veteran's alleged in-service exposure to caustic and toxic substances during service. If the AOJ is notified that additional information is needed from the Veteran to conduct a search for evidence that might corroborate his alleged in-service exposure toxic substances, he should be contacted and informed of the information needed. 6. After undertaking the development listed above to the extent possible and any additional records are associated with the claims file, obtain an appropriate VA examination for the skin from an appropriate medical professional. The electronic claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. Elicit a complete history from the Veteran. The AOJ must provide all periods of active duty and ACDUTRA to the examiner. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: a. Identify all of the Veteran's current skin disabilities and estimate the approximate date of onset. b. Is it as likely as not (a fifty percent probability or greater) that the Veteran's skin disabilities, to include jock itch, were caused or aggravated by any period of service? It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner's attention is invited to the Veteran's statements concerning the onset of his claimed disability. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran's reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 7. After undertaking the development listed in directives 1-5 to the extent possible and any additional records are associated with the claims file, obtain an appropriate VA examination for the right knee from an appropriate medical professional. The electronic claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. Elicit a complete history from the Veteran. The AOJ must provide all periods of active duty and ACDUTRA to the examiner. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: a. Identify all of the Veteran's current right knee disabilities and estimate the approximate date of onset. b. Is it as likely as not (a fifty percent probability or greater) that the Veteran's right knee disabilities, to include a grade four chondral defect, were caused or aggravated by any period of service, to include the reported running and training in boots during active service? It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner's attention is invited to the Veteran's statements concerning the onset of his claimed disability. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran's reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 8. After undertaking the development listed in directives 1-5 to the extent possible and any additional records are associated with the claims file, obtain an appropriate VA examination for cardiac disabilities from an appropriate medical professional. The electronic claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. The AOJ must provide all periods of active duty and ACDUTRA to the examiner. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: a. Identify all of the Veteran's cardiac disabilities present throughout the time on appeal and estimate approximate date of onset. b. Is it as likely as not (a fifty percent probability or greater) that the Veteran's cardiac disabilities, to include cardiomyopathy, were caused or aggravated by any period of service, to include asserted exposure to toxic or caustic substances, as supported by the Veteran's service personnel file? It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner's attention is invited to the Veteran's statements concerning the onset of his claimed disability. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran's reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 9. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a Supplemental Statement of the Case which addresses all evidence associated with the claims file since the last Statement of the Case. The Veteran and his representative should be afforded the applicable time period in which to respond. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ LANA K. JENG 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).