Citation Nr: 20050147 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 16-16 915 DATE: July 28, 2020 REMANDED Entitlement to service connection for hypertension, secondary to diabetes mellitus, Type II, is REMANDED. Entitlement to service connection for a skin condition is REMANDED. REASONS FOR REMAND The Veteran served honorably in the United States Navy from January 1965 to December 1968. The Veteran’s certificate of release from active duty (DD214) reflects that he received the Vietnam Service Medal and a Vietnam Campaign Medal for his service as a Boatswain’s Mate. Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran’s service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claim prior to final adjudication.   1. Entitlement to service connection for hypertension, secondary to diabetes mellitus, Type II, is remanded. In December 2010, the Veteran filed a VA Form 21-526b. Therein, the Veteran confirmed his desire to reopen the previously denied entitlement claim for service connection for hypertension. In September 2018, the Board considered the claims listed on the title page. At that time, the Board found that sufficient evidence had been submitted to reopen a final denial of service connection for a skin condition. The Board remanded the Veteran’s entitlement claim to the AOJ in order to associate outstanding records from UT Southwestern with the claims file. The Board notes that VA regulations provide that certain diseases associated with exposure to tactical herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 (a)(6) are met. 38 C.F.R. § 3.309 (e). The Board observes that the Veteran’s exposure to a tactical herbicide agent in the waterways of the Republic of Vietnam has been conceded. However, the Veteran’s hypertension is not a disease identified as presumptively associated with herbicide exposure. 38 C.F.R. § 3.309 (e). Nevertheless, the statutory and regulatory provisions governing presumptive service connection for certain diseases deemed to be associated with herbicide exposure is a legal consideration rather than a medical consideration. Meaning, the exclusion of hypertension from the list of disabilities for which a presumption may be assigned does not preclude a grant of service connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In January 2020, a VA Memorandum was associated with the claims file. Therein, the VA conceded the Veteran’s exposure to herbicide agents during service in the inland waterways, and the offshore eligible waters, of the Republic of Vietnam. In March 2020, the Veteran underwent a VA examination that considered the nature and etiology for any currently endured hypertension. The VA examiner reported a 2005 diagnosis for hypertension. The VA examiner opined that it is less likely than not that Veteran's hypertension is proximately due to, or the result of, his diabetes. The Board observes that the March 2020 VA examiner did not opine regarding the relationship, if any, between the Veteran’s conceded in-service exposure to tactical herbicide agents and the diagnosed hypertension. Consequently, the Board finds that the examination report not adequate. The VA’s duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C. § 5103A ; 38 C.F.R. §§ 3.159 (c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). On remand, the agency of original jurisdiction (AOJ) should obtain a VA examination report that addresses the nature and etiology of the hypertension currently endured by the Veteran. The resultant examination reports must specifically address the Veteran’s conceded exposure to tactical herbicide agents in the waters of the Republic of Vietnam. 2. Entitlement to service connection for a skin condition is remanded. In December 2010, the Veteran filed a VA Form 21-526b. Therein, the Veteran confirmed his desire to reopen the previously denied entitlement claim for service connection for a skin condition. In September 2018, the Board considered the claims listed on the title page. At that time, the Board found that sufficient evidence had been submitted to reopen a final denial of service connection for a skin condition. The Board remanded the Veteran’s entitlement claim to the AOJ in order to associate outstanding records from UT Southwestern with the claims file. In February 2018, the Veteran supplied sworn testimony to the undersigned Veterans’ Law Judge (VLJ). The Veteran testified that he had acne and skin rashes all over his chest and back ever since. In July 2019, the Veteran’s treatment notations from the Dallas VA Medical Center (VAMC) were associated with the claims file. In February 2019, a VA provider reported hyperpigmentation on the upper back and upper chest that appeared chronic, but not inflamed. In November and December 2019, the Veteran’s treatment notations from the UT Southwestern Medical Center were associated with the claims file. In November 2018, it was reported that the Veteran experienced skin rash and itching since his last visit. A physical examination in May 2019 revealed no skin rash or erythema. A review of systems in November 2019 revealed negative itching, rash, change in mole and hair loss. A November 2019 review of systems revealed no skin rashes, lesions or itching. The November 2019 Dermatologic section relayed that, “(p)atient has normal skin temperature and turgor and color to bilateral foot and ankle with no open lesions or signs of infection. Bilateral toenails 1 through 5 are elongated thickened and with ramshorn curvature of the distal nail plate to all lesser toenails digging into the distal tuft skin of all his lesser toes. The left third and fourth toenails are thickened with brittle nail plate and subungual debris. No open lesion or ulceration rash or sign of infection.” In March 2020, the Veteran underwent a VA examination that considered the nature and etiology for any currently endured skin conditions. The VA examiner relayed that the Veteran did not have a current skin condition. The VA examiner relayed that the Veteran had tinea pedis, which is now completely resolved and no longer requires treatment. The VA examiner relayed that the utilized topical cream for more than six weeks to resolve the Tinea pedis. The VA examiner relayed that the Veteran did not have Acne, Chloracne, Vitiligo, Scarring alopecia, Alopecia areata, Hyperhidrosis, chronic Urticaria, primary cutaneous Vasculitis, Erythroderma (exfoliative dermatitis), or Erythema multiforme; toxic epidermal necrolysis. The VA examiner opined that it is considered less likely than not that Veteran's claimed skin condition is proximately due to, or the result of, his diabetes. The VA’s duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159 (c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the March 2020 VA examination report is not adequate to render a decision on this entitlement claim for service connection for a skin condition. In July 2019, the notations from the Dallas VAMC reported hyperpigmentation on the upper back and upper chest that appeared chronic, but not inflamed. The March 2020 VA examiner relayed that, “(t)he post-inflammatory hyperpigmentation noted to the trunk (which Veteran claims as his ‘skin condition’) is non-specific and does not have the clinical appearance of tinea / dermatophytosis involving these areas.” The Board observes that the 2020 VA examiner did not address the Veteran’s contention that he has endured itchy spots to the back, chest, and arms since separated from the United States Navy. Moreover, the 2020 VA examiner opined on secondary service connection, relating to the service-connected diabetes mellitus, Type II. The VA examiner did not consider or address whether the Veteran has a current skin condition that is a resultant of the conceded exposure to tactical herbicide agents in the waters of the Republic of Vietnam or whether the Veteran may have had a skin disability that resolved during the course of the appeal. Consequently, on remand, the AOJ should secure another examination report that considers the nature and etiology of any skin condition currently endured by the Veteran or that have been manifested at any time during the course of the appeal. Consequently, the matters are REMANDED to the AOJ for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA, Federal, or private health care providers. With the Veteran’s assistance obtain copies of any pertinent records and add them to the claims file. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c) (2017). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Schedule the Veteran for a VA examination to determine the etiology of the currently diagnosed hypertension. The claims file should be made available to, and be reviewed by, the examiner, and it should be confirmed that such records were reviewed. The examiner should: For the current hypertension diagnosis, indicate whether the disability is at least as likely as not (a 50 percent probability or greater) related to the Veteran’s service in the United States Navy. The VA examiner should consider and address the Veteran’s conceded exposure to tactical herbicide agents in the waters of the Republic of Vietnam. An explanation for all opinions expressed must be provided. All opinions must take into account the Veteran’s own history and contentions. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any currently endured skin condition. The claims file should be made available to, and be reviewed by, the examiner, and it should be confirmed that such records were reviewed. The examiner should: 4. For any current skin condition identified on examination or indicated in the record, indicate whether the disability is at least as likely as not (a 50 percent probability or greater) related to the Veteran’s service in the United States Navy. In responding to this inquiry, the examiner should address the Veteran’s self-reported “itchy spots” on the back, chest, and arms after separation from the United States Navy. Also, the examiner should address the competently reported hyperpigmentation on the upper back and upper chest that appeared chronic, but not inflamed. The VA examiner should consider and address the Veteran’s conceded exposure to tactical herbicide agents in the waters of the Republic of Vietnam. An explanation for all opinions expressed must be provided. All opinions must take into account the Veteran’s own history and contentions. 5. The AOJ must ensure that the examination report requested above is in compliance with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. 6. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claims for service connection for hypertension and a skin condition. If the benefits sought is not granted, the AOJ must then issue a Supplemental Statement of the Case (SSOC) and allow   the Veteran and his representative an opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.