BVA9503752 DOCKET NO. 88-03 940 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a skin disorder, claimed as residuals of chloracne, secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Charles G. Sener, Associate Counsel INTRODUCTION The appellant had active service from June 1966 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1985 rating decision of the Department of Veterans Affairs (VA) Philadelphia, Pennsylvania, Regional Office (RO), which denied a claim of entitlement to service connection for a skin disorder secondary to Agent Orange exposure. However, in Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989), a United States District Court voided all benefit denials under 38 C.F.R. § 3.311a, the "dioxin" (Agent Orange) regulation, which was promulgated under the "Dioxin and Radiation Exposure Compensation Standards Act," 38 U.S.C.A. § 1154(a) (West 1991), and remanded the case to the Department of Veterans Affairs for revision of the regulation in accordance with the ruling of the Court. An October 1988 Board decision remanded the issue of entitlement to service connection for a skin disorder secondary to Agent Orange exposure to the RO for further development that included a request for private medical records and a VA medical examination to determine the nature of any skin disorders the appellant may have then had. In September 1989, a Board decision remanded the issue of entitlement to service connection for a skin disorder secondary to Agent Orange exposure to the RO to be held in abeyance pending the promulgation of regulations pertaining to Agent Orange exposure, as required by Nehmer. Final regulations were promulgated by VA in February 1994, and the RO, in a June 1994 rating decision, has again denied the appellant's claim after considering the new regulations. REMAND A January 1971 rating decision granted a noncompensable evaluation for the residuals of a cyst on the appellant's chest. Review of the claims file indicates that the appellant appears to be seeking entitlement to a compensable evaluation for the service-connected residuals of a cyst on his chest, on the basis that the present skin disorder is a component of the skin disorder already service-connected. The Board finds that this claim is inextricably intertwined with the current claim. In a January 1995 statement, the representative noted that the appellant's service-connected residuals of a cyst on his chest may be etiologically related to his present skin disorder and that a medical opinion should be requested to address that issue. The Board acknowledges that request as a claim for entitlement to service connection for a disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (1994). In Harris v. Derwinski, 1 Vet.App. 180 (1991), the United States Court of Veterans Appeals (Court) ruled that where additional issues have been raised but not certified, which are "inextricably intertwined," appellate action prior to development by the originating agency of all intertwined issues would be premature. Review of the appellant's service medical records reveals that an April 1966 service enlistment medical examination listed "moderate facial acne" as a diagnosis. A September 1966 service medical record showed that the appellant was treated for a cyst on his chest that was described as a healing abscess, which was draining and crusted. An April 1967 service medical record indicated that the appellant had a rash on his chest, and the record listed "acne vulgaris - responding to erythromycin." In an August 1967 service medical record, a physician reported that the appellant had had a three year history of acne vulgaris involving his face, chest, and back, with moderate scarring and pustular activity noted. Further review of the service medical records reveals additional medical treatments for acne vulgaris during service. However, the service medical records do not disclose a diagnosis of chloracne. Copies of private medical records from the Police & Fire Medical Assn., Inc., for the period 1979 to 1989, showed that the appellant had been treated on several occasions for cysts in the gluteal area and on the chest, acne on the face, and seborrhea of the ears and scalp. Although a copy of an April 1986 private medical statement written on Police & Fire Medical Assn., Inc. letterhead, from P. Rosenberg, M.D., disclosed that the appellant "has had severe cystic chloracne for several years," the private medical records did not indicate treatment for, or a diagnosis of, chloracne. P. Rosenberg, M.D., in a subsequent February 1989 private medical statement that was written on Police & Fire Medical Assn., Inc. letterhead, reported that the appellant had had severe cystic chloracne of the neck, trunk, and groin since 1982. At a March 1987 VA dermatological medical examination, a physician indicated that the appellant had been seen by a dermatologist, in July 1986, who had diagnosed chloracne. A physical examination noted a reddened papule on the appellant's chest, a depressed atrophic lesion with an area of central hypopigmentation on his back, and two hyperpigmented patches with shiny, bright, papule lesions on his thighs. Lesions on his thighs were diagnosed as "impetigo," and no other diagnoses were listed. At a February 1992 VA dermatological examination, the appellant gave a history of "chloracne." Physical examination revealed erythematous, eczematous plaques on the scalp, inner ear, and chest, "burned out" acneiform scarring of the face, multiple cystic papules on the lower abdomen, marked intertrigo, and candidal balanitis. A physician diagnosed old acneiform scarring, a possible tendency toward hidradenitis, intertrigo, and eczematous patches. The diagnosis also disclosed "no evidence of chloracne at this time." Correspondence from the appellant, dated in June 1994, contained photographs of him that showed an extensive skin condition affecting various parts of his body. VA has a duty to assist the appellant in the development of facts pertinent to his claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993). The Court has held that when the Board believes the medical evidence of record is insufficient it may supplement the record by ordering a medical examination. Colvin v. Derwinski, 1 Vet.App. 171 (1991). The Court has stated that the VA's statutory duty to assist includes issues raised in all documents or oral testimony submitted prior to a Board decision, not just those derived from a liberal reading of the appellant's substantive appeal, "EF" v. Derwinski, 1 Vet.App. 324 (1991). In Harris v. Derwinski, 1 Vet.App. 180 (1991), the Court ruled that where additional issues have been raised but not certified, which are "inextricably intertwined," appellate action prior to development by the originating agency of all intertwined issues would be premature. The Board believes that the issues of secondary service connection for a skin disorder and a compensable evaluation for the service-connected residuals of a cyst on the chest are inextricably intertwined in the current claim. Accordingly, this case is REMANDED to the RO for the following actions: 1. The appellant should be afforded an examination by a dermatological specialist who has not previously examined him, in accordance with the VA's Physician's Guide for Disability Evaluation Examinations (1985), in order to allow the RO to ascertain the nature and severity of all skin disorders, including the residuals of a cyst on the appellant's chest. All indicated special studies should be conducted, if not medically contraindicated. Specifically, the examiner should be requested to render diagnoses for all skin disorders noted on examination. The examiner should also be requested to express an opinion as to the onset and etiology of all skin disorders present, particularly as to whether they are proximately due to or the result of Agent Orange exposure during service, or are components of the service-connected residuals of a cyst on the appellant's chest. The claims folder and a copy of the REMAND should be made available to the examiner for review prior to the examination. 2. The RO should review the examination report to determine if it is adequate for rating purposes and in compliance with this remand. If it is not, it should be returned to the examiner for supplemental action. 3. The RO should take all action necessary to develop and adjudicate the claim for entitlement to a compensable evaluation for the service-connected residuals of a cyst on the appellant's chest. After the above requested actions have been completed, the RO should review the appellant's claims with regard to the additional evidence obtained. If the benefit sought on appeal remains denied, a supplemental statement of the case should be furnished to the appellant and his representative. They should be afforded a reasonable period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The purpose of this REMAND is to obtain additional medical evidence and to ensure that the appellant receives his procedural due process rights. No opinion, either legal or factual, is intimated as to the merits of the appellant's claims by this REMAND. He is not required to undertake any additional action until he receives further notification from the VA. JACK W. BLASINGAME 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 so assigned. 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).