Citation Nr: 0004546 Decision Date: 02/22/00 Archive Date: 02/28/00 DOCKET NO. 98-06 517A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for chloracne, to include as secondary to exposure to Agent Orange or other herbicides. 2. Entitlement to an increased disability rating for service-connected residuals of pilonidal cyst, status post cystectomies, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from September 1960 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1995 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Atlanta, Georgia, which, inter alia, denied claims by the veteran seeking entitlement to service connection for chloracne, secondary to Agent Orange exposure, and entitlement to an increased disability rating for service- connected residuals of pilonidal cyst. The Board notes that, during his November 1998 personal hearing, the veteran contended that he had degenerative disc disease and arthritis of the lumbar spine and that this condition was related to his pilonidal cyst disability. Service connection for a low back disorder was previously denied by RO rating decision in May 1967. The veteran attempted to reopen his claim for service connection for a low back disorder in July 1994, which was denied in the RO's June 1995 rating decision. The Board construes the November 1998 statements as another attempt to reopen, with new and material evidence, the claim for service connection for a low back disorder, diagnosed as degenerative disc disease and arthritis of the lumbar spine, to include as secondary to service-connected residuals of pilonidal cyst, status post cystectomies. This claim has not yet been developed by the RO. It is referred to the RO for proper action. FINDINGS OF FACT The claims file contains evidence of a recent diagnosis of chloracne, of presumed exposure to Agent Orange or other herbicides in service, and of a plausible relationship between the chloracne and the presumed Agent Orange exposure. CONCLUSION OF LAW The claim of entitlement to service connection for chloracne, to include as secondary to exposure to Agent Orange or other herbicides, is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999); 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 I. Laws & Regulations The law provides that "a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991). 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. 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 held that, under 38 U.S.C. § 5107(a), VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the Court 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). Generally, a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A claim for entitlement to service connection is well grounded when there is (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of inservice occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an inservice injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza, 7 Vet. App. 498, 506 (1995) (citations omitted), aff'd 78 F.3d 604 (Fed. Cir. 1996). 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. In determining whether a claim is well-grounded, the supporting evidence is presumed to be true. King v. Brown, 5 Vet. App. 19, 21 (1993). Once well-groundedness has been established, service connection may be established for a current disability in several ways including on a "direct" basis. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303(a), 3.304 (1999). Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (1999). Establishing direct service connection for a disability which has not been clearly shown in service requires that the evidence show the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(d) (1999); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). For some factual issues, such as the occurrence of an injury, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnosis, competent medical evidence is required to satisfy the second element. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For veterans who served in the Republic of Vietnam during the Vietnam era and who have one of the diseases listed in 38 C.F.R. § 3.309(e), the law provides a presumption of exposure to an herbicide agent (e.g. Agent Orange). 38 C.F.R. § 3.307(a)(6)(iii) (1999). The presumptive diseases are: chloracne or other acneform diseases consistent with chloracne; Hodgkin's disease; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and certain soft-tissue sarcomas. 38 C.F.R. § 3.309(e) (1999). In addition, there is a presumption of service connection for chloracne, if manifested to a compensable degree within 1 year after service. 38 C.F.R. § 3.307(a)(6)(ii) (1999). The Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 59 Fed.Reg. 341 (1994). Nevertheless, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In deciding claims for VA benefits, "when there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant." 38 U.S.C.A. § 5107(b) (West 1991). II. Analysis In this case, the Board concludes that the veteran's claim for service connection for chloracne is well grounded. First, the Board finds that the claims file contains competent evidence of a recent diagnosis of chloracne. This is shown by a December 1995 VA skin examination report, which provides a diagnosis of "chloracne, bilateral lower extremities, secondary to Agent Orange exposure per history of the patient, with positive clinical findings on exam." In addition, the Board finds competent evidence of an inservice "disease or injury." 38 C.F.R. § 3.303 (1999). Specifically, the veteran's service personnel records show that he served 90 days or more during the Vietnam era, with service in the Republic of Vietnam. This fact, coupled with the recent diagnosis of chloracne, entitles the veteran to a presumption of inservice exposure to Agent Orange or other herbicides. 38 C.F.R. § 3.307, 3.309 (1999). This presumed exposure satisfies the requirement of an inservice disease or injury, for purposes of a well grounded claim. Finally, the claims file contains medical evidence linking the recent chloracne diagnosis to service, namely to Agent Orange exposure. The December 1995 VA examination report indicates that the veteran's chloracne was secondary to Agent Orange exposure, as per the veteran's history. This is sufficient evidence of a plausible nexus between chloracne and service. Gaines v. West, 11 Vet. App. at 357; see also Caluza v. Brown, 7 Vet. App. at 506; 38 C.F.R. § 3.304(f) (1999). ORDER The claim of entitlement to service connection for chloracne, to include as secondary to exposure to Agent Orange or other herbicides, is well grounded. (CONTINUED ON NEXT PAGE) REMAND I. Service connection for chloracne Because the claim of entitlement to service connection for chloracne 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). Here, the Board finds that further evidentiary development is needed prior to appellate review. Initially, the Board finds that there are medical records potentially available that are pertinent to this claim, which are not currently in the claims file. The VA has a duty to obtain all pertinent medical records which have been called to its attention by the veteran and by the evidence of record. Culver v. Derwinski, 3 Vet. App. 292 (1992). Decisions of the Board must be based on all of the evidence that is known to be available. 38 U.S.C.A. §§ 5103(a), 7104(a) (West 1991 & Supp. 1998). Here, the Board finds that the veteran indicated that he was treated for a "skin rash" at the VA Medical Center in New Orleans, Louisiana, in 1970. The claims file contains various medical records from that facility, but those are first dated in 1972 and do not indicate treatment for any skin problems. Therefore, there may be additional, earlier VA medical records available from that facility and pertinent to his claim. The Board also notes that the veteran, in a January 1995 letter to his Congressman, indicated that he was in receipt of Social Security Administration (SSA) disability benefits. It is probable that the SSA disability determination file contains relevant medical evidence. Therefore, a copy of any and all medical records from that file should be obtained. In addition, the claims file repeatedly references an October 13, 1994, VA dermatology consultation report from Dr. Alan Langford. It appears that that report is not available. The December 1995 VA skin examination was performed by Dr. Langford, under the presumption that the October 1994 report was missing. A November 1998 VA request for records indicates that the RO attempted to obtain the October 1994 report from the Carl Vinson VA Medical Center in Dublin, Georgia, the facility where the examination took place. However, only outpatient treatment records were requested. While this search should have returned the October 1994 report, it did not. The Board finds that a specific search for the October 1994 report should be undertaken, to ensure that it is indeed unavailable. Finally, the Board finds that another VA dermatological examination is necessary. The United States Court of Appeals for Veterans Claims has held that the "fulfillment of the statutory duty to assist . . . includes the conduct of a thorough and contemporaneous medical examination . . . so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet. App. 121, 124 (1991); see Allday v. Brown, 7 Vet. App. 517, 526 (1995) (citing Suttman v. Brown, 5 Vet. App. 127, 138 (1993) (The duty to assist includes providing the veteran a thorough and contemporaneous medical examination when needed). When the medical evidence is inadequate, the VA must supplement the record by seeking a medical opinion or by scheduling a VA examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); see 38 C.F.R. § 4.70 (1999). In this case, the Board recognizes that the veteran was diagnosed with chloracne secondary to Agent Orange exposure in the December 1995 VA report. However, that diagnosis was admittedly based on history provided by the veteran. Furthermore, the Board finds that chloracne was not diagnosed prior to the time of that report, nor at any time subsequently. However, several other skin problems have been diagnosed. The veteran's service medical records show that he had "moderately severe cystic acne, face and trunk" at the time of his induction medical examination report in September 1960. They also show that he was treated for a "severe pustular skin eruption aggravated by grease and oil" during service. Upon examination at separation from service in March 1966, "acne vulgaris" was noted. A February 1977 VA examination report shows a diagnosis of "severe acneform scaly eruptions of the trunk." A September 1982 VA examination report reflects a diagnosis of "tinea cruris and tinea of the toenails" and "bilateral peritibial necrobiosis lypociac diabeticorium [sic] dermatitis of the legs." A January 1990 record from the Mayo Clinic reflects a diagnosis of "necrobiosis lipoidica." The September 1994 VA examination report shows diagnoses of "chronic lower leg rash" and "comedone acne versus chloracne back, neck, chest." Due to the plethora of differing diagnoses, the Board cannot surmise whether or not the veteran currently has chloracne (or other acneform disease consistent with chloracne, see 38 C.F.R. § 3.309(e) (1999)). This determination is further complicated by the fact that the medical records indicate that the veteran has peripheral vascular disease of the lower extremities, apparently due to diabetes, and that that disease necessitated a bypass operation of the right leg and amputation of the right hallux. Records also show repeated treatment for "chronic stasis ulcers" of the lower extremities, clinically correlated to the peripheral vascular disease. Most recent medical treatment is for "chronic nonhealing ulcers" of the lower extremities and peripheral vascular disease. Overall, the Board finds that clinical clarification of the veteran's skin disorder(s), to determine whether or not he currently has chloracne, is necessary prior to appellate review. This is needed in order to provide a record upon which a fair, equitable, and procedurally correct decision on the veteran's claim can be made. 38 C.F.R. §§ 3.326, 3.327 (1999). II. Increased rating for residuals of pilonidal cyst In regard to the veteran's claim for entitlement to an increased disability rating for service-connected residuals of pilonidal cyst, the Board finds that a Notice of Disagreement to the RO's June 1995 denial of that claim was submitted by the veteran in November 1995. The pertinent law and regulations provide that "[a]ppellate review will be initiated by a Notice of Disagreement and completed by a Substantive Appeal after a Statement of the Case is furnished as prescribed in this section." 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.200 (1999); see also 38 C.F.R. § 20.201 (1999) (requirements for notices of disagreement). The Notice of Disagreement must be filed with the RO from which the claimant received notice of the determination being appealed within one year from the date of mailing of the notice of the result of the initial review or determination. 38 U.S.C.A. § 7105(b)(1) (West 1991); 38 C.F.R. §§ 20.300, 20.302(a) (1999). The Notice of Disagreement can be filed by the veteran or his or her representative if a proper Power of Attorney as to the representative is of record. 38 C.F.R. § 20.301 (1999). Thereafter, upon the timely receipt of a Notice of Disagreement, the RO must prepare and furnish to the claimant a Statement of the Case unless the benefit being sought is granted in full. 38 U.S.C.A. § 7105(d)(1) (West 1991); Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995). Here, the Notice of Disagreement was timely filed, but no Statement of the Case was issued on the issue of an increased disability rating for pilonidal cyst. The RO's May 1996 Statement of the Case addressed only the issue of service connection for chloracne. Consequently, this matter must be remanded in order for the veteran to be assured of full procedural due process. See 38 C.F.R. § 19.9 (1999) ("If further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision," the Board is required to remand the case back to the agency of original jurisdiction.) (emphasis added). III. Remand instructions In light of the above, further appellate consideration will be deferred and the case is REMANDED to the RO for the following development: 1. The RO should contact the veteran and provide him the opportunity to identify any and all additional sources of treatment received for chloracne since service, and to either submit such records himself or furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source he identifies. In this regard, the RO should make a specific attempt to obtain any medical records from the VA Medical Center in New Orleans, Louisiana, dated prior to 1972, and the October 13, 1994, VA dermatological examination report from a Dr. Alan Langford, from the Carl Vinson, VA Medical Center in Dublin, Georgia. Copies of all correspondences made and records obtained should be added to the claims folder. 2. The RO should request from the SSA a copy of its administrative decision granting the veteran disability benefits, as well as any supporting documentation, to include all medical examination reports and treatment records. All records obtained should be associated with the veteran's claims folder. 3. The RO should schedule the veteran for VA dermatological examination by a dermatologist in order to determine whether or not he currently has chloracne or other acneform disease consistent with chloracne. He must be given adequate notice of the requested examination, which includes advising him of the consequences of failure to report for it. If he fails to report for examination, this fact should be documented in the claims folder. The claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to the examination. The examiner should discuss any and all manifestations of the veteran's current skin disorder(s), to determine whether his disorder involves chloracne or other acneform disease consistent with chloracne. In doing so, an attempt must be made to clarify and harmonize the numerous diagnoses related to his skin, namely cystic acne; pustular skin eruption; acne vulgaris; acneform scaly eruption; tinea cruris and tinea of the toenails; bilateral peritibial necrobiosis lypociac diabeticorum dermatitis of the legs; chronic lower leg rash; and comedone acne. If chloracne or other acneform disease consistent with chloracne is manifested, the examiner should also render an opinion as to the etiology of that disorder, including whether or not the skin condition is related to exposure to Agent Orange or other herbicides. All necessary tests, should be conducted, and the examiner should review the results of any testing prior to completion of the report. The reasoning which forms the basis of the above opinions should be set forth. That the claims folder was reviewed prior to the examination should be expressly stated. All findings are to be recorded in a concise, legible manner and made part of the claims folder. 4. Following completion of the foregoing, the RO should 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, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the examination report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. See 38 C.F.R. § 4.2 (1999). 5. Thereafter, the RO should review the veteran's claim seeking entitlement to service connection for chloracne, to include as secondary to exposure to Agent Orange or other herbicides, based on all the evidence in the claims folder. 6. If the action is adverse to the veteran, he and his representative should be furnished a Supplemental Statement of the Case which summarizes the pertinent evidence, fully cites the applicable legal provisions, and reflects detailed reasons and bases for the decision reached. 7. The veteran and his accredited representative should also be issued a Statement of the Case with respect to the claim of entitlement to an increased disability rating for service-connected pilonidal cyst, status post cystectomies. The veteran should be advised that he may perfect his appeal of this issue by filing a substantive appeal within 60 days of the issuance of the Statement of the Case, see 38 C.F.R. § 20.302(b) (1999), or alternatively, within the time proscribed by law to perfect an appeal to the Board. Thereafter, the veteran and his representative should be afforded the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND the Board intimates no opinion, either factual or legal, as to the ultimate determination warranted in this case. The veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (1999) failure to attend a scheduled VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). 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. A. BRYANT Member, Board of Veterans' Appeals