Citation Nr: 0318578 Decision Date: 08/01/03 Archive Date: 08/13/03 DOCKET NO. 99-14 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for basal cell carcinoma of the neck, to include as secondary to exposure to herbicides. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to exposure to herbicides. 3. Entitlement to service connection for porphyria cutanea tarda, to include as secondary to exposure to herbicides REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David T. Cherry, Counsel INTRODUCTION The veteran had honorable service from January 1971 to October 1973. His period of service from October 1973 to June 1974 was under conditions other than honorable. The current appeal arose from a May 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The RO denied claims of entitlement to service connection for basal cell carcinoma, COPD and possible porphyria cutanea tarda. In March 2000, the veteran failed to report for a hearing scheduled at the RO before a hearing officer. In July 2001, the Board remanded the issues on appeal for the scheduling of a Travel Board hearing at the RO before a Veterans Law Judge. The veteran provided oral testimony before the undersigned Veterans Law Judge via a Travel Board hearing held at the RO in August 2001, a transcript of which have been associated with the claims file. In November 2001, the Board reviewed the claims of service connection for basal cell carcinoma of the neck and COPD on a de novo basis and denied those claims. The Board reviewed the issue of service connection for porphyria cutanea tarda on the basis of whether new and material evidence had been presented to reopen that issue because the RO had previously denied service connection for that disorder in a September 1995 rating decision. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). See also Winters v. West, 12 Vet. App. 203 (1999). The Board reopened that claim but then denied it on a de novo basis. The Board also remanded the issues of service connection for hepatitis C and nerve damage of the hand and wrist for the issuance of a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995). The veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). In March 2003, a Joint Motion for Partial Remand was submitted with respect to the Board's November 2001 denial of claims of service connection in light of the notice requirements of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). Later that month, the CAVC issued an Order granting this motion and vacating the part of the November 2001 decision that denied claims for service connection. The case was returned to the Board for further action consistent with the CAVC's March 2003 Order. In an August 1999 VA Form 9, the veteran indicated that his skin disorder was "affecting his ability to maintain gainful employment along with other problems I have." Therefore, the veteran may have raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU). Also, in July 2003 the veteran submitted a statement from a VA doctor. That doctor indicated that VA was unable to provide the veteran with any treatment for hepatitis C because of his underlying post-traumatic stress disorder (PTSD), a service-connected disability. Accordingly, the issue of service connection for hepatitis C as secondary to the service-connected PTSD has been reasonably raised. Norris v. West, 12 Vet. App. 413, 420 (1999); Perry v. West, 12 Vet. App. 365, 368 (1999). These matters are referred to the RO for clarification, initial consideration and appropriate adjudicative action if/as warranted. Godfrey, supra. REMAND This claim must be afforded expeditious treatment by the Appeals Management Center/Veterans Benefits Administration Evidence Development Unit/RO (AMC/VBA EDU/RO). The law requires that all claims that are remanded by the Board or by the CAVC 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 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs (or AMC/VBA EDU/ROs) to provide expeditious handling of all cases that have been remanded by the Board and the CAVC. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. The CAVC has held that section 5103(a), as amended by the VCAA and § 3.159(b), as recently amended, require VA to inform a claimant of which evidence VA will provide and which evidence claimant is to provide, and remanding where VA failed to do so. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002). The RO did not provide the appellant a development letter consistent with the notice requirements of the VCAA, as clarified by Quartuccio, supra. Inasmuch as the case must be remanded to the AMC/VBA EDU/RO for the issuance of a VCAA notice letter, the AMC/VBA EDU/RO will be asked to accomplish additional necessary development - obtaining records and affording the veteran VA examinations. At the August 2001 hearing, the veteran indicated that a VA doctor said that his skin disorder could be related to alcohol use. Porphyria cutanea tarda can by caused by chronic alcoholism. See Steadman's Medical Dictionary 1410 (26th ed.). Previously, the veteran in an October 1996 statement said that his alcohol use was related to his service-connected PTSD. Also, the report of an August 1996 VA mental disorders examination reflects a diagnosis of alcohol dependence. VA must fully and sympathetically develop a veteran's claim to its optimum before deciding it on the merits. Norris, supra. Developing a claim to its optimum must include determining all potential claims raised by the evidence and adjudicating all reasonably raised claims. See Norris, supra; Perry, supra. The CAVC has held that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, the issue of service connection for alcohol dependence as secondary to the service-connected PTSD has been reasonably raised and such an issue is inextricably intertwined with the issue of service connection for porphyria cutanea tarda. See Norris, supra; Perry, supra; Harris, supra. The Board observes that additional due process requirements may be applied as a result of the enactment of the VCAA and its implementing regulations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002). Accordingly, this case is REMANDED for the following action: 1. The appellant has the right to submit additional evidence and argument on the matters that the Board has remanded to the AMC/VBA EDU/RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The AMC/VBA EDU/RO should furnish the appellant a development letter consistent with the notice requirements of the VCAA, as clarified by Quartuccio, supra. The AMC/VBA EDU/RO should advise the appellant that he has up to one year after a VCAA notice letter is provided to submit additional evidence, and that if the case is returned to the Board, the Board will not be able to adjudicate the claim(s) prior to the expiration of the one-year time period unless the appellant indicates that he has no additional evidence to submit or waives the one-year response period. 3. The AMC/VBA EDU/RO should ask the appellant to identify all sources of treatment or evaluation, VA and non-VA, for basal cell carcinoma, COPD, porphyria cutanea tarda, any other skin and pulmonary symptomatology, and alcohol use for the period from June 1974 to the present. After obtaining any necessary authorization, the AMC/VBA EDU/RO should obtain any medical records not currently on file. Regardless of the veteran's response, the AMC/VBA EDU/RO should endeavor to obtain all outstanding, relevant VA treatment reports. In any event, the AMC/VBA EDU/RO should obtain all records from the following: the VA Medical Center in Birmingham, Alabama, for the period from March 1999 to the present; the VA Medical Center in Tuscaloosa, Alabama, for the period from 2000 to the present; and the VA community-based outpatient clinic in Jasper, Alabama, for the period from 2000 to the present. Also, the AMC/VBA EDU/RO should obtain all records from the following: Dr. WMS (initials) for the period from June 1974 to the present, Dr. SDJ for the period from June 1974 to the present, Dr. CDC for the period from June 1974 to the present, Dr. BCG for the period from March 1999 to the present, and the medical facility(ies) at the UAB for the period from 1984 to the present. 4. The AMC/VBA EDU/RO should inform the veteran that his spouse said in an August 1996 statement that a VA doctor had told the veteran that a knot on his neck was related to exposure to Agent Orange. The AMC/VBA EDU/RO should inform the veteran that at his August 2001 hearing he testified that a VA dermatologist told him that his skin cancer could or could not be related to exposure to Agent Orange and that VA doctors said that his skin disorder could be related to exposure to Agent Orange, alcohol use or both. The AMC/VBA EDU/RO should ask the veteran to identify all medical professionals who have related basal cell carcinoma, COPD and/or porphyria cutanea tarda to his period of active duty from January 1971 to October 1973, including exposure to Agent Orange and/or sunlight, or to alcohol use, and where they work. If the veteran identifies non-VA medical professionals, the AMC/VBA EDU/RO should make reasonable efforts to obtain medical records from such individuals and inform such individuals that they may submit statements relating the veteran's basal cell carcinoma, COPD and/or porphyria cutanea tarda to his period of active duty from January 1971 to October 1973, including exposure to Agent Orange and/or sunlight, or to alcohol use, with bases for any conclusions. If the veteran identifies VA medical professionals, the AMC/VBA EDU/RO should contact such individuals and ask them to submit any statements relating the veteran's basal cell carcinoma, COPD and/or porphyria cutanea tarda to his period of active duty from January 1971 to October 1973, including exposure to Agent Orange and/or sunlight, or to alcohol use, with bases for any conclusions, if they have such opinions. 5. The AMC/VBA EDU/RO should obtain any additional service medical records from the National Personnel Records Center (NPRC), to include any hospitalization records from Fort Jackson, South Carolina, regarding treatment of pneumonia. The AMC/VBA EDU/RO should ask the veteran to provide the month (if known or else approximate month) and year that he was hospitalized at Fort Jackson, South Carolina, for treatment of pneumonia. 6. The AMC/VBA EDU/RO should ask the veteran whether he has ever applied or received Social Security disability benefits. If the veteran responds in the affirmative, the VBA EDU/RO should contact the Social Security Administration (SSA) and obtain the decision(s) and medical records pertaining to all claims for Social Security disability benefits filed by him. 7. The AMC/VBA EDU/RO should obtain any temporary claims file for the veteran from the VA RO in Montgomery, Alabama. 8. Following the above, the AMC/VBA EDU/RO should arrange for a VA special psychiatric examination to determine the interrelationships, if any, between PTSD and an alcohol use-related disorder(s), to include alcohol dependence, that the veteran has or may have had. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination. The examiner must annotate the examination report that the claims file was in fact made available for review in conjunction with the examination. Any further indicated special studies should be conducted. The examiner should review the historical evidence in the claims folder. The examiner should also elicit a detailed history of the onset of alcohol use- related symptoms from the veteran. The examiner should express opinions as to the following: (a) Does the veteran have or did he have an alcohol use-related disorder and if so, the nature(s) of such a disorder(s)? (b) For each alcohol use-related disorder found such as alcohol dependence previously reported in the record, the psychiatrist should render an opinion as to whether it is at least as likely as not that such a disorder(s) was/were caused by or permanently worsened by the service-connected PTSD. If no causal relationship is determined to exist, but aggravation is said to be present, the psychiatrist must address the following medical issues: (1) The baseline manifestations that are due to the effects of the alcohol use- related disorder(s); (2) The increased manifestations that, in the psychiatrist's opinion, are proximately due to the service-connected PTSD; based on medical considerations, and (3) The medical considerations supporting an opinion that increased manifestations of the alcohol use-related disorder(s) are proximately due to the service- connected PTSD. Any opinions expressed by the examiner must be accompanied by a complete rationale. 9. The AMC/VBA EDU/RO should arrange for VA special dermatology examination of the veteran by a specialist in dermatology or other appropriate available medical specialist, including on a fee basis if necessary, for the purpose of determining whether the veteran's basal cell carcinoma and/or porphyria cutanea tarda is/are related to his period of active duty from January 1971 to October 1973, and whether porphyria cutanea tarda is related to an alcohol use-related disorder. The claims file (including a copy of the report of the VA psychiatric examination) and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination. The examiner must annotate the examination report that the claims file was in fact made available for review in conjunction with the examination. Any further indicated special studies should be conducted. The examiner should review the historical evidence in the claims folder, including the service medical records. The examiner should also elicit a detailed history of the onset of skin symptomatology from the veteran. The examiner should express opinions as to the following: (a) Is it at least as likely as not that the veteran's basal cell carcinoma is related to his period of active duty from January 1971 to October 1973, including exposure to Agent Orange and/or sunlight, or if preexisting that period of active duty, was aggravated thereby during that period of active duty? (b) Is it at least as likely as not that the veteran's porphyria cutanea tarda is related to his period of active duty from January 1971 to October 1973, including exposure to Agent Orange and/or sunlight, or if preexisting that period of active duty, was aggravated thereby during that period of active duty? (c) Is it at least as likely as not that the veteran's porphyria cutanea tarda is related to an alcohol use-related disorder diagnosed in the report of the VA psychiatric examination? Any opinions expressed by the examiner must be accompanied by a complete rationale. 10. Following the above, the AMC/VBA EDU/RO should arrange for a VA examination of the veteran by a specialist in respiratory disorders, if available, including on a fee basis if necessary, for the purpose of determining whether the veteran's COPD a current respiratory disorder is related to his period of active duty from January 1971 to October 1973. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination. The examiner must annotate the examination report that the claims file was in fact made available for review in conjunction with the examination. Any further indicated special studies should be conducted. The examiner should review the historical evidence in the claims folder, including the service medical records. The examiner should also elicit a detailed history of the onset of pulmonary symptomatology from the veteran. The examiner should express opinions as to the following: Is it at least as likely as not that the veteran's COPD is related to his period of active duty from January 1971 to October 1973, including exposure to Agent Orange, or if preexisting that period of active duty, was aggravated thereby during that period of active duty? Any opinions expressed by the examiner must be accompanied by a complete rationale. 11. Thereafter, the AMC/VBA EDU/RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the AMC/VBA EDU/RO should review the requested examination reports and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the AMC/VBA EDU/RO should implement corrective procedures. The Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). In addition, the AMC/VBA EDU/RO must review the claims file to ensure that any other notification and development action required by the VCAA is completed. In particular, the AMC/VBA EDU/RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A and 5107) are fully complied with and satisfied. 12. If applicable, the AMC/VBA EDU/RO should issue a statement of the case (SOC) on the issues of service connection for hepatitis C and nerve damage of the hand and wrist. The appellant should be advised of the need to timely file a substantive appeal if he wishes appellate review. 13. After undertaking any development deemed essential in addition to that specified above, the VBA EDU/RO should adjudicate the claim of service connection for alcohol use-related disorder as secondary to the service- connected PTSD, with consideration of 38 C.F.R. § 3.310(a) (2002); Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001); and Allen v. Brown, 7 Vet. App. 439 (1995). Then, the AMC/VBA EDU/RO should readjudicate the issues on appeal under a broad interpretation of the applicable regulations and CAVC decisions, on a direct basis and as secondary to exposure to herbicides and/or sunlight, with consideration of 38 C.F.R. §§ 3.307, and 3.309 (2002), and 68 Fed. Reg. 34,539 (June 10, 2003) (to be codified at 38 C.F.R. § 3.307(a)(6)), as applicable. If the benefits sought on appeal are not granted to the veteran's satisfaction, the AMC/VBA EDU/RO should issue a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for further appellate review, if in order. The Board intimates no opinion as to any final outcome warranted. The appellant need take no action unless otherwise notified by the AMC/VBA EDU/RO. The appellant need take no action unless otherwise notified by the AMC/VBA EDU/RO; however, the veteran is hereby notified that failure to report for any scheduled VA examination(s) without good cause shown may adversely affect the outcome of his claim on appeal. 38 C.F.R. § 3.655 (2002). _________________________________________________ RONALD R. BOSCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the CAVC. 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) (2002).