Citation Nr: 1808437 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 16-40 742A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUE Entitlement to service connection for a skin disorder, to include as due to sun and/or herbicide agent exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from May 1958 to October 1980. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2014 rating decision in which the RO, inter alia, denied the Veteran's claim for service connection for a skin condition. In March 2015, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in July 2016 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2016. In July 2016, the Executive in Charge of the Board granted a motion to advance this appeal on the Board's docket. See 38 U.S.C. § 7017 (a)(2)(C) (2012) and 38 C.F.R. § 20.900(c) (2017). While the Veteran previously had a paper claims file, this appeal is being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. For reasons expressed below, the claim on appeal is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND The Board 's review of the claims file reveals that further action in this appeal is warranted. The Veteran's service personnel records document that he served in the Republic of Vietnam during the applicable presumptive period for exposure to herbicide agents. Therefore, he is presumed to have been exposed to herbicide agents during such service. See 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017), Furthermore, in the January 2018 Appellate Brief Presentation, the Veteran's representative argued that not only was the Veteran exposed to Agent Orange while serving in the Republic of Vietnam, but Agent Blue, which contained arsenic that has been linked with medical conditions, to include skin and bladder conditions. The representative cited to an article on cancer.org noting that the relationship between arsenic and skin conditions has recently been documented. Although the Veteran is not competent to diagnose certain skin disorders, he is competent to observe that he experiences skin rashes or skin lesions, as well as to report in-service sun exposure. As such, and given his presumed in-service herbicides exposure, and lay assertions as to a relationship between such exposure(s) and service, the Board finds that the criteria for arranging for the Veteran to undergo VA examination to obtain medical opinion are met See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Specifically, the examiner should opine, for each skin disorder documented in the claims file or diagnosed during the examination, whether the disability is medically related to active military service. to include exposure to herbicide agents and/or sun therein. In addition, in the August 2016 substantive appeal, the Veteran asserted that he submitted private treatment records in June 2016 with respect to his treatment for his skin condition. The Veteran included a copy of a certified mail receipt with a notation that the mail was received on June 23, 2016. A review of the claims file does not show any private treatment records were associated in the claims file in June 2016 or any time thereafter. The Veteran stated that he receives most of his treatment through private medical providers. In light of the foregoing, the Board finds that a remand is necessary to attempt to locate the missing private treatment records submitted by the Veteran and to give the Veteran another opportunity to provide information (to include completing and submitting VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs) or evidence pertinent to the claim on appeal. Furthermore, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. In this regard, the AOJ should give the appellant another opportunity to provide information and/or evidence pertinent to the claim on appeal to include VA treatment records since April 2016, explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b) (2012); but see 38 U.S.C.A. § 5103(b)(3) (2017) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA), See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Undertake all appropriate action to attempt to locate the missing private treatment records submitted by the Veteran in June 2016 and associate any such records with the electronic claims file. Clearly document all steps taken to locate these records and notify the Veteran if these records are unavailable. 2. Obtain from the Phoenix VAMC all outstanding records of VA evaluation and/or treatment of the Veteran since April 2016. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After completing the foregoing and all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA skin examination from an appropriate physician. The contents of the entire, electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the designated examiner, and the examination report should reflect full consideration of the Veteran's documented medical history and lay assertions. For each skin disorder diagnosed currently, or at any point pertinent to the current claim (even if now asymptomatic or resolved), the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during service or is otherwise medically related to service, to include herbicide exposure and/or sun exposure therein. In rendering each requested opinion, the examiner must consider and discuss all in and post-service medical and other objective evidence of record, to include the cited medical article reference by the Veteran's representative in the January 2018 Appellate Brief Presentation. The physician also must consider and discuss all lay assertions, to include any assertions as to in-service events, and as to the nature, onset, and continuity of symptoms. Notably, the absence of documented evidence of a specific disability or associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. In this regard, the physician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. Complete, clearly-stated rationale for the conclusions reached, must be provided. In this regard, it would be helpful if the examiner referenced studies and/or medical articles as part of his or her opinion with respect to whether the Veteran's skin disorder(s) is etiologically related to exposure to herbicide agents. 6. To help avoid another remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence (to particularly include all that added to the VBMS and/or Virtual VA file(s) since the last adjudication) and legal authority. 8. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative a supplemental SOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this remand is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The appellant need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This remand must be afforded expeditious treatment. The law requires that all claims 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). The AOJ is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).