BVA9504185 DOCKET NO. 93-09 958 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a liver disorder. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a lung disorder. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for post- traumatic stress disorder. 4. Entitlement to an increased evaluation for service-connected onychomycosis of the feet and hands, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael A. Pappas, Associate Counsel INTRODUCTION The veteran served on active duty from October 1969 to May 1971. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Philadelphia, Pennsylvania, Regional Office (RO). In pertinent part, an October 1991 rating decision denied the veteran's claims of entitlement to service connection for a liver disorder, determined that new and material evidence had not been submitted to reopen claims of entitlement to service connection for a lung disorder and post-traumatic stress disorder, and denied the veteran's claim to an evaluation in excess of 10 percent for service-connected onychomycosis of the feet and hands. The veteran was afforded a hearing before a Member of the Board in April 1993. The appeal was received and docketed at the Board in May 1993. The veteran has been represented throughout his appeal by Disabled American Veterans. In the course of the hearing before the Board, the veteran expressed the desire to withdraw from consideration the issues of entitlement to a permanent and total rating for non-service connected pension benefits, whether new and material evidence had been submitted to reopen a claim of entitlement to service connection for chest pain, and entitlement to service connection for residuals of exposure to agent orange. Since the hearing transcript has now been reduced to writing, and the veteran's withdrawals are deemed to be in compliance with 38 C.F.R. § 20.204 (1994), the Board will limit its consideration to the four issues shown on the initial page of this remand. REMAND At his hearing before the Board, the veteran indicated that his skin fungus disorder of the feet and hands had increased in severity, particularly in the summer when it is humid. He stated that he had been treated for the disorder in the recent past by his family physician, private dermatologists, private physical therapists, and at a VA hospital. With respect to the issue of service connection for a liver disorder, the veteran indicated that he first found out that he had an abnormal liver in 1978 or 1979. Following a series of tests at a local hospital, he was diagnosed and treated by his family physician for some form of hepatitis. These treatments continued through 1981. The veteran further indicated that more recent blood tests have been conducted at the Kennedy Hospital. Thirdly, the veteran indicated that he has been treated in the past for his claimed post-traumatic stress disorder by a VA psychiatrist who later referred him to a social worker. It is unclear whether the veteran is referring to recent or remote treatment. Finally, a review of the record indicates that the veteran has not been afforded a VA compensation examination for the objective medical evaluation of his service-connected onychomycosis of the feet and hands. In light of this, and since there is a reasonable probability of a valid claim for an increased evaluation for that disorder, the Board is of the belief that a limited medical examination is warranted. The VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994) This duty includes assisting the veteran in securing clinical and treatment records when the veteran asserts that such records exist, but are not on file. Murphy v. Derwinski, 1 Vet.App. 78 (1990). Littke v. Derwinski, 1 Vet.App. 90 (1990). This duty also includes affording the veteran a VA medical examination when there is a reasonable probability of a valid claim. 38 C.F.R. § 3.326(a) (1994). Under the circumstances of this case, the Board is of the opinion that additional development is required. The case is REMANDED to the RO for the following: 1. The veteran should be asked to submit or identify any VA or private medical evidence, not previously of record, showing that he has post-traumatic stress disorder, that his lung disorder is related to service, or that he has a liver disorder related to service. This should include the name of the family doctor from whom he received treatment for his liver disorder between 1978 and 1981 and the address of the Kennedy Hospital. Copies of his medical records should then be obtained. He should also be asked to describe the events during service that he believes resulted in post-traumatic stress disorder, including dates, locations, military units and individuals involved. The RO should also ask him to identify any medical care providers, including family physicians, private dermatologists, and VA facilities, that have evaluated or treated him in the recent past for his skin fungus disorder. Any medical providers identified should be asked to provide copies of the veteran's medical records. The veteran should be asked to sign any necessary consent forms for the release of his private medical records. 2. Following the accumulation of the medical records requested above, a preliminary review of those records should be undertaken. If a diagnosis of post- traumatic stress disorder has been shown since June 1983, the RO should undertake any indicated stressor development based on the stressor information provided by the veteran. In that regard, his DD Form 214 shows only several very brief periods in Vietnam in 1970 and the veteran has stated in the past that he was not in combat. 3. Thereafter, if, but only if, post- traumatic stress disorder has been shown since June 1983, the veteran should be afforded a VA psychiatric examination by a board certified psychiatrist. The examination should include a psychological evaluation with formal testing that includes post-traumatic stress disorder subscales. The claims folder and a separate copy of this remand, including any evidence accumulated pursuant to this remand, must be made available for review by the evaluating psychiatrist prior to examination of the veteran. The examiner's attention is directed to the veteran's DD Form 214 showing specific dates of service in Vietnam and to the fact that he previously denied having engaged in combat. The examiner should express an opinion as to the correct Axis I and Axis II diagnoses, if any. If post-traumatic stress disorder is, in fact, diagnosed, the examiner should identify the specific stressors and the evidence considered in establishing the occurrence of those stressors. 4. Following the accumulation of the medical records requested above, but in any event, the veteran should be afforded a special VA examination by a dermatologist to specifically determine the nature and extent of the service-connected onychomycosis of the feet and hands. The nature and extent of any ulceration, exfoliation, exudation, crusting or other manifestations should be noted. The veteran's recent history should be reported. If possible, unretouched photographs of the affected areas should be taken and associated with the claims folder. 5. Thereafter, the veteran's claims of entitlement to service connection for a liver disorder, a lung disorder, and post- traumatic stress disorder, and his claim of entitlement to an increased evaluation for service-connected onychomycosis of the feet and hands, should be reviewed. In regard to the issue of service connection for a liver disorder, the RO should determine whether the claim is well grounded and, if so, whether additional development of the evidence is necessary. Any indicated development should be accomplished. In regard to the issues of service connection for a lung disorder and post-traumatic stress disorder, the RO should determine whether the requisite new and material evidence has been received to reopen a claim previously denied by the Board and the RO, respectively, in accordance with 38 U.S.C.A. § 5108 and 38 C.F.R. § 3.156(a). If it is determined that new and material evidence has been submitted, then the claim or claims must be adjudicated on a de novo basis, with consideration of all of the evidence of record, both old and new. If any of the benefits sought are not granted, the veteran and his representative should be furnished copies of a supplemental statement of the case. The veteran and his representative should be given an opportunity to respond, and the case should be returned to the Board for further appellate consideration. No action by the veteran is required until he receives further notice. The purpose of this remand is to ensure due process, and assist the veteran in the development of his claim. (Continued on next page) JANE E. SHARP Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 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) (1994).