Citation Nr: 0018841 Decision Date: 07/18/00 Archive Date: 07/25/00 DOCKET NO. 96-03 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to service connection for chloracne secondary to Agent Orange exposure. 2. Entitlement to service connection for skin cancer secondary to Agent Orange exposure. 3. Entitlement to service connection for tinea pedis secondary to Agent Orange exposure. 4. Entitlement to service connection for chronic irritant dermatitis secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Solomon J. Gully, IV, Associate Counsel INTRODUCTION The veteran had active service from March 1965 to October 1969. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from an August 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. This case was previously remanded by the Board for additional development in March 1998. The case is now, once more, before the Board for appellate review. The Board notes that in an October 1995 notice of disagreement (NOD), the veteran requested a personal hearing. Consequently, the veteran was scheduled for a hearing at the RO in February 1996. He subsequently rescheduled personal hearing dates set in April 1996 and June 1997, apparently, due to his receipt of notification only days prior to the scheduled hearing date, and difficulties associated with transportation to the RO. The veteran was most recently scheduled for a personal hearing in September 1997, but failed to appear. There is no indication of record that attempts were made by the veteran to reschedule this hearing date, or advise the RO of any impeding circumstances that would prevent his appearance. In view of the foregoing, the Board is satisfied that the veteran's hearing request has been withdrawn. In view of the fact that additional development is required with respect to the issue of entitlement to service connection for chloracne, the Board will defer a final decision as to the claims for service connection for other skin disabilities pending the further augmentation of the record. REMAND Background Based on a review of the claims folder, it appears that some of the veteran's service medical records (SMRs), including the separation examination report, are not available. The Board recognizes the particular importance of supplying reasons and bases for a decision when an appellant's medical records have been lost. On enlistment examination in March 1965, the veteran reported a medical history of "boils." The examination report notes a normal clinical evaluation of the skin. Available service medical records are negative for complaints, diagnosis, or treatment of a chronic skin disorder. During an October 1984 VA evaluation for exposure to chemical toxins, the veteran reported recurrent itching and skin eruptions at the right ankle since his separation from service. In his responses on a chemical toxins questionnaire, he indicated that he was not certain as to the number of times he was exposed to chemical agents, nor was he certain of the method of such exposure. The veteran maintained, however, that such exposure occurred while he was stationed on field duty in Tan-Ninh province from October 1966 to September 1967. He further contended that his exposure was not limited to a single occurrence, but was attributable to "repeated" episodes of exposure. The veteran suggested that he had previously been in areas that were sprayed, or had ingested contaminated food or water. Current complaints included a rash on his leg. A physical examination revealed the skin to be "clear throughout." There were no lesions, and healed excoriations were noted over the right external malleolus. Recurrent itching dermatitis of the right ankle was diagnosed. In February 1995, the veteran filed a claim of entitlement to service connection for various disorders secondary to Agent Orange exposure, including skin cancer, and a skin rash on the right foot and arms. On VA Agent Orange examination in March 1995, the veteran gave a history of skin lesions in the right temple area since 1970, and indicated that a lesion recently began to increase in size. He reported macular lesions on his back and legs since returning from Vietnam, which were "sometimes pustular." The record notes a history of recurrent dermatitis on the lateral aspect of the right foot since the veteran's separation from service, which was present only during warm weather. In addition, the veteran related that he tended to get blisters on his skin in various locations following exposure to the sun. A physical examination showed an enlarging, slightly raised, lightly pigmented lesion in the right temporal area, measuring 21/2 centimeters by 1 centimeter. A 3 centimeter by 3 centimeter, slightly raised area of light brown pigmented skin was noted on the forehead. This area displayed indefinite borders, scattered with clear areas inside. There was a 11/2 centimeter by 11/2 centimeter, deeply pigmented lesion anterior to the right side of the face, just below the temporal lesion. There were numerous pink, patulous lesions, measuring from 2 centimeters to 5 centimeters in diameter. One of these lesions was noted to be pustular at the time of the examination. Scarring was noted at the site of previous lesions on the back. There was no active dermatitis of the feet. The examiner opined that the lesions observed on the veteran's face were potentially nevi and/or skin cancer. The diagnostic impression was lesions on the face possibly nevi and/or skin cancer, possibly secondary to Agent Orange, chloracne secondary to exposure to Agent Orange, and recurrent dermatitis of the right foot, probably fungal. Color photographs depicting areas of skin on the head and back, claimed as chloracne associated with Agent Orange exposure, were provided. The examiner noted that the veteran was being referred to a dermatology clinic, as well as the surgical clinic for evaluation of the lesions on his face, particularly the enlarging lesion in the right temporal region. An August 1995 rating decision denied service connection for skin disability associated with Agent Orange exposure, on the basis that there was no evidence of skin cancer present, nor was there evidence of chloracne during service or within one year thereafter. The RO further noted that the dermatological conditions involving the right foot and arms were not shown to be associated with herbicide exposure. The veteran filed a notice of disagreement (NOD) with this decision in October 1995, and submitted a substantive appeal (Form 9) in January 1996, perfecting his appeal. The Board remanded the case for further development in March 1998. In particular, the Board directed the RO to request the National Personnel Records Center (NPRC) to conduct another search for any additional service medical records relating to the veteran's period of military service which had not been associated with the claims folder, attempt to obtain all outstanding medical records reflecting post- service treatment of the veteran's skin disorders, and to schedule a VA examination to determine the nature and severity of any skin disorders diagnosed. In conjunction with the March 1998 remand, VA treatment records dated from March to June 1995 were associated with the veteran's claims folder in May 1998. These records reflect that the veteran underwent an excision biopsy of a seborrheic keratosis of the skin of the right temple in April 1998. A pathology report dated later that month notes a diagnosis of pigmented solar keratosis. In an October 1998 response to the RO's request for additional service medical records, including the veteran's separation examination report, NPRC reported that no additional records were available. According to a November 1998 VA examination report, the veteran gave a history of exposure to Agent Orange during service in Vietnam, and indicated that he experienced a rash on his legs, arms, and hands with persistent itching since that time. He reported that he tried "numerous things" for his athlete's foot, but nothing helped. A physical examination revealed maceration, erythema, and scaling between the toes. The veteran's skin was noted to be very dry all over with scattered excoriated papules and plaques. The diagnostic impression was tinea pedis, and chronic irritant dermatitis of the legs. In a February 1999 addendum to the November 1998 VA examination report, the physician opined that the veteran's pre-service folliculitis was not aggravated by exposure to Agent Orange. He explained that while Agent Orange can cause a specific type of acne, it does not cause or aggravate boils. He further noted that "basal cell carcinoma and fungal infection are not a direct result of exposure to Agent Orange in Vietnam." In correspondence the following month, the physician clarified that folliculitis was not caused or aggravated by exposure to Agent Orange, and neither basal cell carcinoma of the face, nor fungal infection of the foot is directly related to Agent Orange exposure. Based on this evidence, the RO continued the denial of the veteran's claims for service connection. Analysis The record indicates that a disability linked to reported Agent Orange exposure was not listed on the examination in 1994. The diagnostic impressions on VA examination in March 1995 included lesions on the face possibly nevi and/or skin cancer, possibly secondary to Agent Orange, chloracne secondary to exposure to Agent Orange, and recurrent dermatitis of the right foot, probably fungal. According to the physician who conducted the November 1998 VA examination, the diagnostic impression was tinea pedis, and chronic irritant dermatitis of the legs. In a February 1999 addendum to the November 1998 VA examination report, the physician opined that the veteran's pre-service folliculitis was not aggravated by exposure to Agent Orange. He explained that while Agent Orange can cause a specific type of acne, it does not cause or aggravate boils. He further noted that "basal cell carcinoma and fungal infection are not a direct result of exposure to Agent Orange in Vietnam." In correspondence the following month, the physician clarified that folliculitis was not caused or aggravated by exposure to Agent Orange, and neither basal cell carcinoma of the face, nor fungal infection of the foot is directly related to Agent Orange exposure. The Board finds that the record remains unclear as to whether or not the appellant has a skin disorder related to service. The examination in November 1998 and the subsequent addenda appear to indicate that the veteran does not have a skin cancer or fungal disorder of service origins. These reports however, do not explicitly comment upon whether the veteran has or had chloracne or other acneform disease consistent with chloracne. A diagnosis of chloracne was advanced in 1995, although it has not been repeated since that time. The most recent reports acknowledge that Agent Orange has been linked to a specific type of acne; however, the most recent reports do not expressly state that chloracne or other acneform disease consistent with chloracne is not present or was not present. Given the earlier diagnosis, the Board finds that this question must be squarely addressed. Accordingly, the case is remanded for the following development: 1. The veteran may submit additional evidence and argument in support of his claim. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should take appropriate action to obtain a supplemental medical opinion. The claims file should be returned to the physician who conducted the November 1998 examination, if feasible, and that physician should be requested to provide an opinion as to the degree of medical probability that the veteran has or previously had chloracne or other acneform disease consistent with chloracne. In this context, it would be helpful if the examiner addressed whether or not the diagnosis of chloracne offered in 1995 was supported by the history and findings. If the examiner can not provide the supplemental opinion without conducting a further examination of the veteran, that examination should be arranged. If the examiner can not provide the requested opinion without resort to speculation, he should so state. If the same physician is not available to provide the supplemental opinion, the record should be annotated to indicate why. The appropriate authority should then seek to obtain the requested opinion from another suitably qualified physician. If that physician can not provide the supplemental opinion without conducting a further examination of the veteran, that examination should be arranged. If the examiner can not provide the requested opinion without resort to speculation, he should so state. If the benefits sought on appeal are not granted, the veteran and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should then be returned to the Board for final appellate review. 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. Richard B. Frank Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).