BVA9502611 DOCKET NO. 89-21 012 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for allergies and skin disability, claimed as residuals of Agent Orange exposure. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. H. Mathis, Counsel INTRODUCTION The veteran had active service from September 1970 to March 1972, including service in the Republic of Vietnam. This matter originally came before the Board of Veterans' Appeals (Board) from rating decisions by the Los Angeles, California, Regional Office, of the Department of Veterans Affairs (VA). In October 1989, the Board remanded the case to the RO pending the promulgation of additional regulations governing benefits for residuals of herbicide exposure. The Board did not consider the merits of the veteran's appeal in 1989 regarding the Agent Orange claim because in May 1989 the United States District Court, Northern District of California, had voided all benefit denials under existing herbicide exposure regulations. New regulations have since been promulgated. In October 1989, the Board also denied service connection for psychiatric disability, including post-traumatic stress disorder, and for wounds to the right hip and left forearm. In a rating decision of June 1994, the RO considered whether new and material evidence had been submitted to reopen the claim for service connection for post-traumatic stress disorder. No Notice of Disagreement was received pertaining to the decision which confirmed the prior action on the claims, but in December 1994 the representative annotated a statement in support of the claim, dated July 11, 1989, confirming the arguments made in 1989, which included service connection for post-traumatic stress disorder, and wounds to the right hip and left forearm. Inasmuch as this may be considered a Notice of Disagreement with the 1994 decision by the RO, the matter is referred to the RO for any action deemed appropriate. REMAND During service in July 1971, the veteran was seen for an infection on his left arm, which reportedly was healing well. He returned the next day with the same complaint. The service medical records contain no further reference to these symptoms and the report of the separation examination is not of record. A fungus was noted on a VA outpatient visit in February 1987. When the veteran was examined by VA in July 1987, he provided the history that since 1972 he had been complaining of a skin condition, characterized by flaking of the skin with some vesicles, affecting mostly the upper and lower extremities. The VA examination report further reflects that he had been treated at that facility, only with temporary relief. There is a notation that the skin would be examined in detail by the Dermatology service. On the general medical examination there was a diagnosis of exposure to toxic chemical (Agent Orange) by history. There is no report of a special dermatological examination of record. When the veteran underwent VA examinations in December 1993, the examination by the respiratory specialist included requests for chest X-rays and a sinus series. The studies are in the claims folder, but there is a notation of waiting for sinus series and chest X-ray in the Diagnostic/clinical test results portion of the examination report. The respiratory examiner should have an opportunity to complete the examination report by reviewing the special studies and making a diagnosis. Also, the skin examination report does not include any mention of a review of the veteran's claims folder, including the veteran's service medical records. VA has a duty to assist the veteran in the development of facts pertinent to a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993). In view of the foregoing, the Board concludes that further development of the evidence, as specified below, would be helpful prior to a decision on the merits. The purpose of the action to obtain the veteran's complete medical records is to ensure that the entire record is available for review by VA clinical specialists prior to a decision on the merits. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should attempt to retrieve additional service medical records, especially the report of the veteran's separation examination, if any. 2. The RO should contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated or evaluated any allergy or skin disability at any time since service. With any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran, which have not been previously secured, and associate them with the claims folder. The development should include the RO obtaining the report of any special dermatology examination of the veteran referred to in the examination report of July 1987. 3. The RO should provide the examiner who conducted the VA respiratory examination in December 1993 with an opportunity to complete the examination report by reviewing the special studies and entering a diagnosis, if any. 4. When the foregoing development has been completed, the RO should arrange for a VA examination of the veteran by a board certified allergist and a board certified dermatologist, if available, to determine the nature and extent of any allergy and of any skin disability. All indicated studies should be performed. The dermatologist should examine the veteran, review the record, including the VA medical reports for 1987, and provide an opinion, with complete rationale, as to the etiology of any skin disability, to include whether it is at least as likely as not that any skin disability shown is related to the veteran's skin complaints in service. It is imperative that a copy of this Remand and the veteran's claims file be made available to each examiner prior to the examination. 5. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examination does not include all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. 6. Thereafter, the RO should readjudicate the issues regarding allergies and skin disability currently certified on appeal. If the benefits sought on appeal are not granted to the appellant's satisfaction or if a timely Notice of Disagreement is received with respect to any other matter, a Supplemental Statement of the Case addressing all issues in appellate status should be prepared and furnished to the appellant and his representative. They should be provided an opportunity to respond. Thereafter, in accordance with proper appellate procedures, the case should be returned to the Board for further appellate review, if otherwise in order. All issues properly in appellate status should be returned to the Board at the same time. In taking this action, the Board implies no conclusion, either legal or factual, as to any final outcome warranted. The appellant need take no action until otherwise notified. _____________________________ ROBERT E. SULLIVAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 State. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1993).