Citation Nr: 0101343 Decision Date: 01/18/01 Archive Date: 01/24/01 DOCKET NO. 98-05 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a skin disorder diagnosed as folliculitis with asteatoic eczema, dermatitis, tinea versicolor, and allergic dermatitis as a result of Agent Orange or other herbicide exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kelli A. Kordich, Associate Counsel INTRODUCTION The veteran had active military service from August 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1998 rating decision by the Des Moines, Iowa, Regional Office (RO) of the Department of Veterans Affairs (VA) which, in part, denied service connection for a skin condition, diagnosed as folliculitis with asteatotic eczema. REMAND The Board notes that the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), amended the provisions of 38 U.S.C.A. § 5107 to eliminate the well- grounded claim requirement. VA is now required to assist a claimant in developing all facts pertinent to a claim for VA benefits. VA shall provide a medical examination when such examination may substantiate entitlement to the benefits sought. However, VA may decide a claim without providing assistance when no reasonable possibility exists that such assistance will aid in establishment of entitlement. It also includes new notification provisions. Specifically, it requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Initially, the Board notes that the veteran contends that he developed folliculitis with asteatoic eczema, dermatitis, tinea versicolor, and allergic dermatitis secondary to Agent Orange exposure during his service in Vietnam. However, the Board notes that these conditions are not included in the list of diseases for which a veteran may be entitled to a presumption of Agent Orange exposure. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e); McCartt v. West, 12 Vet. App. 146 (1999). Nevertheless, although the veteran in this case may not establish service connection for the skin conditions on a presumptive basis based on Agent Orange exposure, he may still establish service connection on a direct basis, including as due to Agent Orange exposure. Combee v. Brown, 34 F.3d 1039, 1045 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727- 29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation). The veteran contends that he suffers folliculitis with asteatoic eczema, dermatitis, tinea versicolor, and allergic dermatitis as a result of exposure to Agent Orange while serving in Vietnam as a petroleum storage specialist. Service medical records show no complaints, treatment or diagnoses of folliculitis with asteatoic eczema, dermatitis, tinea versicolor, or allergic dermatitis. In June 1967, the veteran was treated for a boil on the right leg. Separation examination dated July 1968 is negative for any of the above mentioned conditions. At a VA examination dated September 1983 the examination showed chronic infected follicles. October 1992 VA examination showed multiple 2 to 3 mm excoriated skin papules over the lower extremities, arms, and buttocks with multiple healed lesions. The examiner indicted that the excorations were evaluated with no determined etiology. At a November 1994 VA examination the veteran was diagnosed with asteatotic eczema with secondary excoriation. VA outpatient treatment records dated August 1997 show that the veteran was treated and diagnosed with folliculitis. An outpatient note dated October 1997 showed the veteran had multiple excoriations on both upper extremities, both lower extremities, buttocks, and a primary lesion over his left shoulder. The veteran was diagnosed with underlying folliculitis. In December 1997, the veteran was again treated for his skin condition with a diagnosis of folliculitis vs. neurotic excoriation. An April 1998 treatment note shows the veteran was diagnosed with allergic dermatitis, possibly due to hypertension medication and when seen in August 1998 the veteran was diagnosed with dermatitis and tinea versicolor. In his January 1999 RO hearing, the veteran testified that the Air Force was not far away from where he was stationed and they could have been spraying Agent Orange. The veteran was not aware if he handled any containers that contained Agent Orange. The veteran testified that he was treated in service for multiple carbuncles. The veteran also testified that while in treatment at the VA hospital in Iowa City a dermatologist told him that his skin condition was caused by exposure to Agent Orange and that she wrote this down on a piece of paper. Another physician told the veteran that he had skin cancer, but the veteran testified he could not get more pinpointed information. The veteran also testified that a VA physician told him that his blood was toxic and that he could not donate blood. The Board notes that although the veteran has sought treatment for his skin condition, there has not been a comprehensive VA physical examination to evaluate his skin condition since November 1994. The Board is unable to find that the record as it stands allows for an equitable and informed review of the veteran's appeal. Further development of the medical evidence, to include efforts to obtain VA documentation indicating that the veteran was exposed to Agent Orange and information indicating his inability to give blood due to toxicity, which the veteran testified to at his January 1999 RO hearing, is therefore necessary to ensure an accurate record to allow for equitable appellate review. Inasmuch as the veteran does not have one of the diseases listed at 38 C.F.R. § 3.309(e), under 38 C.F.R. § 3.307(a)(6)(iii), the Board may not presume that the veteran was exposed to Agent Orange, or any other herbicide agent, during active service. Rather, in determining whether the alleged exposure actually occurred, the Board must rely on other evidence, including service personnel records. At present the claims file contains some service personnel records; however, these records do not mention Agent Orange or any other herbicide agent. Accordingly, on Remand, the RO should also contact the veteran's service department and endeavor to verify whether the alleged exposure actually occurred. Accordingly, the case is hereby REMANDED to the RO for the following actions: 1. The RO should contact appropriate authorities and inquire as to whether it is at least as likely as not that the veteran was exposed to an herbicide agent during the veteran's active service in Vietnam. The RO should document all responses received and obtain and associate with the claims file any outstanding service personnel records pertinent to this issue. 2. Any VA medical records (not already of record) documenting ongoing treatment for the claimed disability should be associated with the claims file, specifically those VA records identified by the veteran at his RO hearing in which it was noted that the veteran's skin condition was a result of exposure to Agent Orange. 3. The veteran and his representative should be contacted and asked to furnish the names and addresses of any private medical care providers who have treated the veteran for the disorder at issue. After obtaining appropriate consent from the veteran to the release of medical records, the RO should contact any medical care providers reported by the veteran and request copies of pertinent records. The RO should comply with notice and duty to assist provisions of the Veterans Claims Assistance Act of 2000, specifically as it relates to obtaining medical documentation identified by the veteran. 4. The veteran should be scheduled for a special VA dermatologic examination to ascertain the veteran's current skin condition(s), and the nature and etiology of the condition(s). It is imperative that the claims file be made available to the examiner for review in connection with the examination, and all indicated special studies and tests should be accomplished. As to any skin condition(s) found to be present after reviewing the claims file (to include service medical records), the examiner should offer an opinion as to whether it is at least likely as not that the skin condition(s) are related to the particular herbicide agent(s) to which the veteran was exposed during active service. The examiner should include detailed rationale for all opinions expressed. 5. After completion of the above, the RO should review the expanded record and readjudicate the issue of service connection for a skin disorder as secondary to Agent Orange exposure. If the determination remains adverse to the veteran, the veteran and his representative should be furnished a supplemental statement of the case and given an appropriate time in which to respond. The record should then be returned to the Board for further appellate review, if otherwise in order. The purpose of this remand is to comply with the duty to assist. The veteran and his representative are free 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). WARREN W. RICE, JR. Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), 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) (2000).