Citation NR: 9727492 Decision Date: 08/07/97 Archive Date: 08/14/97 DOCKET NO. 96-20 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a skin disorder, to include urticaria, psoriasis, and skin cancer, due to Agent Orange exposure. 2. Entitlement to service connection for skin cancer on a direct basis. 3. Entitlement to service connection for psoriasis on a direct basis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Lemoine, Associate Counsel INTRODUCTION The veteran had active military service from August 1968 to November 1969. The Board of Veterans' Appeals (Board) received this case on appeal from a November 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the veteran's claim seeking entitlement to service connection for skin cancer due to herbicide exposure. The RO further advised the veteran that skin cancer did not occur in service and was not aggravated by service. Also appealed was a November 1996 rating decision of the RO which denied the veteran's claim seeking service connection for psoriasis on a direct basis. The Board notes that the RO characterized the veteran's claim of entitlement to service connection for skin cancer due to herbicide exposure as one issue in its November 1995 rating decision. However, the veteran and his representative have clearly argued that service connection was warranted for a skin disorder, to include urticaria, psoriasis, and skin cancer due to Agent Orange exposure. Regarding psoriasis and skin cancer, they further clearly argued that service connection was warranted on two separate theories. First, it was argued that service connection was warranted directly due to the veteran's service. Second it was argued that service connection was warranted on a presumptive basis due to Agent Orange exposure. The RO considered all of these contentions and has provided the veteran and his representative with all pertinent laws and regulations. Accordingly, the Board finds that there are actually three issues on appeal as recharacterized on the title page. The Board notes that the issue of entitlement to service connection for angioedema (urticaria) on a direct basis was previously denied by the RO in a March 1970 rating decision. During his September 1996 testimony at a hearing on appeal before a VA hearing officer, the veteran apparently attempted to argue that the claim for urticaria should be reopened due to new and material evidence. However, this claim has not been developed for appellate review, is not inextricably intertwined with the issues on appeal and accordingly, is referred to the RO for appropriate action. REMAND On preliminary review of the evidentiary record, the Board notes that in September 1996 the veteran, accompanied by his representative, appeared and presented testimony at a hearing on appeal before a VA hearing officer. At that time, the veteran and his representative argued that he was treated for urticaria during his service in Vietnam and that the condition was aggravated thereby. It was further argued that the veteran continued to experience problems with urticaria after his service and that he sought treatment from the VA between 1970 and 1975. The veteran reported that he was diagnosed with psoriasis by the VA between 1970 and 1975. He indicated he was treated at the VA Medical Centers at Butler and Oakland. (See Transcript, p. 3-4). The veteran indicated his condition was subsequently diagnosed as skin cancer by a private physician, Dr. Williams, in 1993. The veteran and his representative argued that he was exposed to Agent Orange in Vietnam and this exposure could have contributed to his development of his skin disorders, to include urticaria, psoriasis, and skin cancer. A complete transcript of the testimony is of record. The VA does not have a statutory duty to assist a claimant in developing facts pertinent to a claim which is not well- grounded. 38 U.S.C.A. § 5107(a) (West 1991). See also Boeck v. Brown, 6 Vet.App. 14, 17 (1993) and Grivois v. Brown, 6 Vet.App 136, 140 (1994). However, if the claimant’s application for benefits is incomplete, the VA shall notify the claimant of the evidence necessary to complete the application. 38 U.S.C.A. § 5103(a) (West 1991). An application is incomplete if the VA is put on notice of the likely existence of competent medical evidence that would, if true, be relevant to, indeed, necessary for, a full and fair adjudication of an appellant’s claim. Robinette v. Brown, 8 Vet.App. 69, 77 (1995). Given the veteran's arguments and testimony that he was treated for his claimed disorders between 1970 and 1975 at VA medical facilities, it appears that additional medical records or evidence may exist which could support the veteran's claim. The Board is of the opinion that this evidence, if it does in fact exist, would be relevant and necessary for a full and fair adjudication of the veteran's claim. Thus, under the circumstances of this case, the Board is of the opinion that the RO has been put on notice that relevant evidence exists, or could be obtained, which, if true, would make the appellant’s claim “plausible”; and the RO failed to assist the appellant pursuant to the provisions of 38 U.S.C.A. § 5103(a). Robinette, 8 Vet.App. at 80. The veteran should also be contacted to determine if there are any additional private medical records or other evidence that may be pertinent to his appeal. The RO should attempt to obtain any private medical records identified by the veteran. The veteran should also, once again, be informed of the availability of a VA hospital examination to determine the residuals of Agent Orange exposure, if any, in accordance with M21-1, Part III, paragraph 5.10. Accordingly, further appellate consideration will be deferred and the case is REMANDED to the RO for the following actions: 1. The RO should consider the issues on appeal to be, first, entitlement to service connection for a skin disorder, to include urticaria, psoriasis, and skin cancer, due to Agent Orange exposure; second, entitlement to service connection for skin cancer on a direct basis; and third, entitlement to service connection for psoriasis on a direct basis. 2. The RO should inform the veteran of the availability of a VA hospital examination to determine the residuals of Agent Orange exposure, if any, in accordance with M21-1, Part III, paragraph 5.10. 3. The RO should also request from the veteran any information pertaining to any medical treatment he has received for his claimed disorders. Based on information provided by the veteran, the RO should undertake to obtain copies of all records from the identified treatment sources and associate them with the claims folder. The veteran should also be asked to submit any medical evidence in his possession which tends to support his claims. Any documents received by the RO should be associated with the claims folder. 4. The RO should take the appropriate steps to secure copies of all of the veteran’s VA treatment records, to include from the VA Medical Centers at Butler and Oakland, and associate them with the claims folder. 5. After the development requested above has been completed, the RO should again review the record. If any determination remains unfavorable to the veteran, the RO should furnish him and his representative with a supplemental statement of the case, in accordance with 38 U.S.C.A. § 7105. Thereafter, the veteran and his representative should be given the opportunity to respond. The case should be returned to the Board for further appellate consideration, if otherwise in order, following appropriate appellate procedure. By this REMAND the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. The purpose of this REMAND is to ensure due process and further develop the record. No action is required by the veteran until he receives further notice. 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 Veterans Appeals 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. 1996) (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. STEVEN L. COHN Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1996). - 2 -