Citation Nr: 22016508 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 20-13 573 DATE: March 22, 2022 REMANDED Entitlement to service connection for a skin disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 1965 until his honorable discharge in August 1969. For this meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal, the Vietnam Campaign Medal, and Combat Action Ribbon. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The Board has recharacterized the Veteran's claims more broadly based on the Veteran's contentions and the medical evidence of record to ensure complete consideration of the claims' scope. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (The scope of a claim includes any disability that may be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). Entitlement to service connection for a skin disability is remanded. The Veteran contends his skin disability (claimed as skin disorder on elbows, knees, groin area, foot fungus/feet) stems from service. Specifically, the Veteran argues his skin disability is related to exposure to contaminated water at Camp Lejeune. See December 2015 VA Form 21-526EZ. In the alternative, the Veteran contends his skin disability is related to exposure to herbicide agents. See March 2016 Correspondence. The VA has a duty to assist, which includes providing a medical examination, when necessary, to make a decision on a claim. 38 C.F.R. § 3.159(c)(4). In determining whether VA's duty to assist requires a VA examination or medical opinion, four factors are for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumptive period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103(A); 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has not been afforded a VA examination for his service connection claim, and the Board finds that an examination and medical opinion are warranted. Additionally, the Veteran has raised, and the record supports, three possible theories of entitlement, which need to be addressed. First, the record reflects that the Veteran was stationed at Camp Lejeune, North Carolina, during his military service. Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 provide a presumption of service connection for certain diseases based on exposure to contaminants present in the water supply at Camp Lejeune. Under 38 C.F.R. § 3.309(f), the following diseases may be presumed for service connection for military personnel who served at Camp Lejeune from August 1, 1953, to December 31, 1987: kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. For the purposes of 38 C.F.R. § 3.307(a)(7), contaminants in the water supply means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride that were in the on-base water-supply systems. Here, the record reflects diagnoses of (1) unspecified urticaria and (2) contact dermatitis and other eczema, unspecified cause. Although these diagnoses are not enumerated diseases determined to be associated with exposure to contaminated water at Camp Lejeune, the exclusion of a disability from the list of disabilities for which presumptive service connection may be assigned does not preclude service connection on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (VA must still consider direct service connection, even if service connection cannot be granted on a presumptive basis). The Agency of Original Jurisdiction (AOJ) has not obtained an opinion or considered service connection for a skin disability on a direct basis, as due to or caused by contaminated water at Camp Lejeune. Therefore, the Board finds additional development is needed to determine the etiology of the Veteran's skin disability on a direct basis. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Second, and similarly, the Veteran's military personnel records confirm he served in the Republic of Vietnam from July 1967 to September 1968. The Veteran's exposure to herbicide agents is presumed. 38 C.F.R. §§ 3.307, 3.309. The AOJ has not obtained an opinion or considered service connection for a skin disability as due to or caused by presumed exposure to herbicide agents. Despite the presumptive regulations, a Veteran may establish service connection based on exposure to herbicide agents with proof of actual, direct causation. Combee, 34 F.3d 1039. Therefore, the Board finds additional development is needed to determine the etiology of the Veteran's skin disability on a direct basis. McLendon, 20 Vet. App. 79. Third, the Veteran has stated, and his service treatment records indicate, that the Veteran experienced, was diagnosed with, "lymphadenopathy left groin" and "T. versicolor" during service. See STRs dated February 1968 and July 1968. Therefore, an opinion should be obtained as to whether the Veteran's skin disability had its onset during service. Lastly, there is evidence of record that indicates potential relevant outstanding private treatment records related to his skin disability. There is evidence of record that indicates the Veteran was being followed by a podiatrist (Dr. H.F. Preuss, D.P.M.) See July 2020 private treatment records. It does not appear these records have been associated with the claims file. The AOJ should take steps to request any outstanding records from Dr. H.F. Preuss. The matters are REMANDED for the following action: 1. Afford the Veteran an additional opportunity to submit or identify any outstanding pertinent evidence from Dr. H.F. Preuss, D.P.M., that have not already been associated with the claims file. The AOJ should then attempt to obtain those records if the appropriate authorization is provided. 2. After the above is completed, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any currently diagnosed skin disability. Following a review of the entire record, the examiner should address the following: (a.) Identify/diagnose any skin disability that presently exists or that has existed during the appeal period (from December 2015). With respect to any skin disability found to be present, the examiner should provide the following opinion: (b.) Whether it is as likely as not (an approximate balance of negative and positive evidence) that the disability(ies) is the result of, caused by, or related to contaminated water at Camp Lejeune. (c.) Whether it is as likely as not (an approximate balance of negative and positive evidence) that the disability(ies) is the result of, caused by, or related to, exposure to herbicide agents. The examiner is advised that service connection can be established due to exposure to contaminated water at Camp Lejeune and exposure to herbicide agents by direct proof of causation, and that it is insufficient to conclude that there is not direct causation simply because the Veteran's skin disability(ies) is not on the list of diseases and conditions that are presumptively associated with exposure to contaminated water and exposure to herbicide agents. (d.) Whether it is as likely as not (an approximate balance of negative and positive evidence) that the Veteran's skin disability(ies) is etiologically related to or incurred in active duty service. The examiner's attention is directed to service treatment records dated February 1968 and July 1968. Following direction from the United States Court of Appeals for the Fourth Circuit in Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), the proper standard of review is whether the factors are in an "approximate balance." Lynch held that the Veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance, i.e., nearly equal and does not require the evidence to be in exact equipoise. Id. Please address the Veteran's lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. A complete rationale must be provided. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. The AOJ must send the Veteran and his representative a letter with the date, time, and place of the Veteran's scheduled examination, and include a copy of this letter in the claims file. L. Baskerville Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, 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.