Citation Nr: 0000390 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-13 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for a skin disorder, to include entitlement under the provisions of 38 C.F.R. § 3.307(a)(6) (1999) for exposure to a toxic herbicide. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD M. L. Wright, Counsel INTRODUCTION The veteran had active service from October 1969 to April 1971. During this period, he served in the Republic of Vietnam from August 1970 to April 1971. This appeal arises from an August 1997 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) which denied the veteran's claim for service connection for a skin disorder. This claim was also denied under the provisions of 38 C.F.R. § 3.307(a)(6) as a claimed result of exposure to toxic herbicides. The veteran appealed these determinations. A hearing was held, via video conference, before the Board of Veterans' Appeals (Board) in October 1999. This hearing was conducted by N. R. Robin, a Member of the Board, who was designated to do so by the Chairman of the Board pursuant to 38 U.S.C.A. § 7102(a) (West Supp. 1999) and who will be making the final determination in this case. FINDINGS OF FACT 1. The veteran has claimed to have been exposed to toxic herbicides during his wartime service in the Republic of Vietnam. 2. A private medical opinion of October 1998 has diagnosed the veteran's skin disorder as chloracne and provided a nexus opinion between this skin disorder and the veteran's claimed exposure to toxic herbicides during military service. CONCLUSION OF LAW The claim of entitlement to service connection for a skin disorder is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet.App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence of noting is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. As noted above, the veteran had active service in Vietnam. He testified at his October 1999 Board hearing that he was exposed to toxic herbicides during field patrols his first 30 days stationed in Vietnam. The veteran also provided testimony that this skin problems started two to three months after his separation from the military. He claimed that these problems had not existed prior to his military service. At his hearing in October 1999, the veteran submitted two lay statements, one from a fellow servicemember and the other from a sibling, to the effect that his skin problems started soon after leaving service in 1971. A private physician's letter of October 1998 noted that the veteran currently suffered from chloracne and the likely cause of this disorder was the veteran's exposure to "Agent Orange" while fighting in Vietnam. Based on this evidence, the undersigned finds that the veteran has presented evidence of a current skin disorder and a medical nexus opinion that it was related to an incident during his military service. Therefore, he has satisfied the requirements for a well-grounded claim as outlined in the Caluza decision. This issue is further discussed in the following remand. ORDER The claim of entitlement to service connection for a skin disorder is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to service connection for a skin disorder is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). At his hearing in October 1999, the veteran claimed that his skin disorder was treated within one year after his separation from the military by a private physician. However, he also acknowledged that this physician was now dead and his attempts to retrieve this medical evidence had been unsuccessful. He noted treatment of his skin disorder by the VA Medical Center (VAMC) in Durham, North Carolina, sometime in 1982. However, the RO had previously requested these records. In May 1997, the VAMC responded that these records were no longer available. It was noted that a search had been performed under both the veteran's former and current names. Based on these responses, the undersigned finds that the VA has met all the requirements regarding the duty to assist the veteran in obtaining the above-mentioned records under 38 U.S.C.A. § 5107(a) (West 1991) and any further attempt to develop would be futile. A review of the claims file indicates that the veteran has received numerous and conflicting diagnoses for his skin problems since March 1982. The only diagnosis for chloracne was given in the private physician's letter of October 1998. It was acknowledged at his hearing by the veteran that this physician was not a specialist in dermatology. In a separate letter of September 1998, a different private physician reported that the veteran's skin disorder was severe atopic eczematosis dermatitis. Due to the conflicting diagnoses and because it is not evident that these physicians had reviewed the veteran's entire medical history, a VA skin examination is required to provide a definitive diagnosis and etiological opinion. See Godfrey v. Brown, 8 Vet. App. 113 (1995) (VA is not required to accept a medical opinion based upon the veteran's recitation of his or her medical history). In addition, the veteran testified that he had been treated for his skin disorder at a private clinic in Brooklyn, New York, in 1972 and had not attempted to retrieve these records. As these records are pertinent to the current claim, the RO should attempt to obtain them while this case is on remand. Based on the above analysis, the undersigned finds that further development is required, and the case is REMANDED to the RO for the following action: 1. The RO should appropriately contact the veteran and request the names and addresses of all healthcare providers who treated his skin disorder from November 1995 to the present time. After securing the necessary release(s), the RO should obtain any records not already contained in the claims file; to include those from any identified VA medical center or outpatient clinic. The RO should specifically request signed release forms for the following physicians: a. George C. Debnam, M.D. The Debnam Clinic Primary Care Center 524 South Blount Street Raleigh, North Carolina 27601 b. Kenneth Banks, M.D. Raleigh Medical Associates 2949 New Bern Avenue Suite 112-A P.O. Box 14005 Raleigh, North Carolina 27620 It should specifically be requested that the veteran identify the private clinic located in Brooklyn, New York, at which he was treated in 1972. A release form should be obtained for this facility. The veteran is advised that it is ultimately his responsibility to ensure that the VA receives all pertinent medical evidence regarding his claims and his failure to submit such evidence could have an adverse effect on his claims. Once obtained, all records must be associated with the claims folder. 2. Following completion of the above development, the veteran should be afforded a VA skin examination. The purpose of this examination is to diagnosis any current skin disorder(s) and determine an etiology. Such tests as the examining physician deems necessary should be performed. The clinical findings and reasons upon which the opinions are based should be clearly set forth. The claims folders must be made available to the examining physician in connection with the examination so that he or she may review pertinent aspects of the veteran's medical history. If the examiner finds it impossible to answer any of the questions below, it should be so noted on the examination report with the reasons given for this conclusion. The examiner should provide the following opinions: a. Does the veteran currently suffer with a chronic skin disorder(s)? If so, please provide the appropriate diagnosis(es). b. Are any of these skin disorders etiologically linked to the veteran's military service or claimed exposure to a toxic herbicides in Vietnam? Please provide the reasons and bases for your conclusions. 3. Thereafter, the RO must review the claims folders 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 opinions requested, appropriate corrective action is to be implemented. 4. Following completion of this action, the RO should review the evidence and determine whether the veteran's claims may now be granted. This determination should include a consideration of the applicability of the provisions of 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If any of the RO's decisions remain adverse to the veteran, he and his representative should be furnished an appropriate supplemental statement of the case, and given an opportunity to respond. Thereafter, the case should then be returned to the Board for further appellate consideration, if appropriate. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. The veteran need take no further action until he is informed. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to obtain additional information. No inference should be drawn regarding the final disposition of the claims as a result of this action. N. R. ROBIN Member, Board of Veterans' Appeals