Citation Nr: 1743974	
Decision Date: 09/15/17    Archive Date: 10/10/17

DOCKET NO.  09-33 306	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to service connection for a skin disorder, other than malignant fibroxanthoma, to include as secondary to service-connected diabetes mellitus, or due to Agent Orange exposure.

2.  Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II, or due to Agent Orange exposure.

3.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	The American Legion




WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Polly Johnson, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the Army from January 1966 to January 1969 earning, among other distinctions, a combat infantry badge for his combat service in Vietnam.

This matter is before the Board of Veterans' Appeals (Board) on appeal from January 2008 and January 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.  The January 2008 rating decision denied service connection for multiple skin cancers; the January 2009 rating decision denied service connection for hypertension.

The Veteran appeared at a hearing before a Veterans Law Judge (VLJ) in March 2012.  A transcript of the hearing has been associated with the claims file.  The VLJ who conducted the hearing has since retired.  The Veteran was informed of this in a March 2016 letter and was given the opportunity to have another hearing.  In March 2016, the Veteran replied that he did not want to appear at another hearing.

The Board notes that the RO granted service connection for residuals of malignant fibroxanthoma in a December 2016 rating decision.  The question of whether the Veteran's other skin disabilities may be service-connected remains at issue.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.
REMAND

The Board regrets having to again delay adjudication of the Veteran's claims. However, this remand is necessary to ensure compliance with the Board's prior remand instructions, and to afford the Veteran all consideration due to him under the law.  See Stegall v. West, 11 Vet. App. 268 (1998); see also the Veteran's July 2017 Informal Hearing Presentation, submitted by the Veteran's representative.

The Veteran claims he has various skin disorders and hypertension related to his combat service in Vietnam, specifically his presumed exposure to Agent Orange.  Alternatively, he claims his disabilities may be secondary to his service-connected diabetes mellitus, type II.

Pursuant to the Board's prior remands, medical opinions were obtained with respect to the Veteran's claimed disabilities.  For the reasons set forth below, the Board finds that the most recent VA opinions are inadequate to decide the claims.  See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms.)  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Skin Disorders

The Veteran has skin diagnoses including actinic keratosis, nummular dermatitis, and folliculitis.  See, February 2015 VA skin disorders examination report.  The February 2015 VA examiner explained that lesions associated with actinic keratosis could take years to develop.  The Board's April 2016 remand specifically directed that a new examiner address the question of any potential latency in the development of any skin conditions, and how that may be relevant to the Veteran's current conditions and his military service.  The May 2016 VA examiner failed to address that question.  Moreover, the examiner did not acknowledge the other diagnoses identified at the February 2015 VA examination.
Additionally, the Veteran has asserted that his skin problems are related to exposure to Agent Orange.  The July 2012 VA examiner stated that the Veteran's skin conditions were not presumptive to Agent Orange exposure.  The February 2015 VA examiner addressed herbicide exposure with respect to the Veteran's nummular dermatitis, but not with respect to the Veteran's other diagnosed conditions.  The Board's April 2016 remand directed that a VA examiner address the most recent Institute of Medicine (IOM) update on Agent Orange exposure with respect to all of the Veteran's diagnosed skin disabilities.  Because the examiner did not discuss the IOM report, the Board finds that a new opinion is necessary.

Hypertension

The Veteran asserts that he has hypertension that is directly related to his military service, secondary to Agent Orange exposure, and/or related to his service-connected diabetes mellitus, type II.  See, July 2011 Veteran's Substantive Appeal.

His post-service medical records show a current diagnosis of hypertension.

The April 2016 Board remand directed that a new medical opinion be obtained that addressed the above-mentioned IOM report on the association between veterans and Agent Orange.  The report was not addressed.  

TDIU

Lastly, the Board notes that the issue of entitlement to TDIU is inextricably intertwined with the claims being remanded herein, as the outcome of the service connection claims may impact the outcome of the TDIU claim.  See, e.g., Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).  Hence, the Board will defer appellate consideration of the issue of entitlement to TDIU pending completion of the action requested below.


Accordingly, the case is REMANDED for the following action:

1. Contact the Veteran and request that he identify, submit, or authorize VA to obtain any VA or private treatment records not already on file that he believes are pertinent to his appeal, to include VA treatment records dated from April 2016 to the present.

2.  Send the claims file to a physician of appropriate knowledge and expertise to determine the nature and etiology of the Veteran's claimed skin conditions, other than malignant fibroxanthoma.  It is up to the discretion of the physician selected whether a new examination is necessary, or in the alternative, an addendum opinion is sufficient.

The claims file must be made available to and be reviewed by the examiner.  

Based on a review of the record, the examiner should:

a)  Identify any skin disability diagnosed during the pendency of the appeal, other than malignant fibroxanthoma (which has already been service-connected).

b)  Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed skin disability was incurred in, or is otherwise related to the Veteran's period of active duty service, to include exposure to herbicide agents and/or prolonged sun exposure while in combat in Vietnam.

c)  Address the most recent IOM update on Agent Orange exposure, and whether the findings contained therein bear on the question of whether the Veteran's skin disabilities are related to in-service herbicide exposure.  

d)  Address any potential latency in the development of his skin conditions (in particular, actinic keratosis), as suggested by the February 2015 VA examiner, and how this may be relevant to the Veteran's current conditions and his military service.

e)  Address the Veteran's lay contentions with respect to his sun exposure/exposure to herbicides, and his current skin conditions.  Such lay statements must be considered and weighed in making the determination as to whether a nexus exists between service and the currently diagnosed skin disorders, and alternatively the exposure to herbicides.

f)  Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's skin disabilities were (i) caused by, or (ii) aggravated by, any service-connected disability, to include the Veteran's service-connected diabetes mellitus, type II.

A complete rationale should be given for all opinions and conclusions expressed, and a discussion of the facts and medical principles involved must be provided.

3.  Return the claims file to a physician of appropriate knowledge and expertise to determine the nature and etiology of the Veteran's claimed hypertension.  It is up to the discretion of the physician selected whether a new examination is necessary, or in the alternative, an addendum opinion is sufficient.

The claims file must be made available to and be reviewed by the examiner.  The examination report must indicate that the claims file was reviewed in conjunction with the report.  

Based on a review of the record, the examiner should:

a)  Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was incurred in, or is otherwise related to the Veteran's period of active duty service, to include exposure to herbicide agents while in combat in Vietnam.

b)  Address the most recent IOM update on Agent Orange exposure.

c)  Address the Veteran's lay contentions with respect to his sun exposure/exposure to herbicides, and his current hypertension.  Such lay statements must be considered and weighed in making the determination as to whether a nexus exists between service and the currently diagnosed hypertension, and alternatively the exposure to herbicides.

d)  Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was (i) caused by, or (ii) aggravated by, any service-connected disability, to include the Veteran's service-connected diabetes mellitus, type II.

A complete rationale should be given for all opinions and conclusions expressed, and a discussion of the facts and medical principles involved must be provided.

4.  Thereafter, the claims file should be made available to a physician to address the extent to which the Veteran's service-connected disabilities impact his ability to work.  The physician should provide information concerning the functional impairment resulting from the Veteran's service-connected disabilities that may affect the ability to function and perform tasks in a work setting.  

5.  Readjudicate the issues on appeal, to include the issue of TDIU.  If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable period of time within which to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

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.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
V. Chiappetta
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).

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