Citation Nr: 1424605	
Decision Date: 06/02/14    Archive Date: 06/16/14

DOCKET NO.  11-07 348	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


ISSUES


1.  Entitlement to service connection for a low back condition.

2.  Entitlement to service connection for sleep apnea.

3.  Entitlement to service connection for hypertension, to include as secondary to posttraumatic stress disorder (PTSD).

4.  Entitlement to service connection for residuals of chloracne or acne due to Agent Orange exposure. 

5.  Entitlement to service connection for restless leg syndrome, to include as secondary to PTSD.


REPRESENTATION

Appellant represented by:	The American Legion
WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Juliano, Counsel


INTRODUCTION

The Veteran served on active duty from June 1967 to February 1970.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in Denver, Colorado.  Jurisdiction was subsequently transferred to the RO in St. Paul, Minnesota.

In March 2014, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing at the RO in St. Paul, Minnesota.  A transcript of the proceeding has been associated with the claims file.

In January 2011, after the Veteran filed his notice of disagreement with regard to the March 2010 rating decision, the Veteran filed a withdrawal of his disagreement with the denial of service connection for hepatitis C.  Therefore, no remand for the issuance of a Statement of the Case (SOC) is required under Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).

The issues of entitlement to service connection for hypertension, residuals of acne or chloracne, and restless leg syndrome are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  In March 2014, before the Board promulgated a decision, the Board received a written statement from the Veteran that expressed his desire to withdraw from appellate review his claim for service connection for a low back condition, which withdrawal he confirmed by way of his testimony at the March 2014 Board hearing.

2.  In March 2014, before the Board promulgated a decision, the Board received a written statement from the Veteran that expressed his desire to withdraw from appellate review his claim for service connection for sleep apnea, which withdrawal he confirmed by way of his testimony at the March 2014 Board hearing.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal by the Veteran of an appeal of a claim for service connection for a low back condition have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2013).

2.  The criteria for withdrawal by the Veteran of an appeal of a claim for service connection for sleep apnea have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Dismissals

With regard to the Veteran's claims for service connection for a low back condition and for sleep apnea, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2013).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204 (2013).

In March 2014, before the Board promulgated a decision with regard to the Veteran's claims for service connection for a low back condition and for sleep apnea, the Veteran submitted a written request to withdraw these claims from appellate consideration.  The Veteran confirmed his intent to withdraw these matters from appellate consideration at the March 2014 Board hearing.  Therefore, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal of these claims, and they must therefore be dismissed.


ORDER

The appeal of entitlement to service connection for a low back condition is dismissed.

The appeal of entitlement to service connection for sleep apnea is dismissed.


REMAND

A.  Hypertension and Restless Leg Syndrome

The Veteran claims that he has hypertension and restless leg syndrome secondary to his service-connected PTSD.  The Board acknowledges that the RO also adjudicated entitlement to service connection on a direct basis.

A February 2011 letter from Dr. S.C. of the Inver Grove Heights Family Practice reflects that she reported that the Veteran was treated in that facility for hypertension and restless leg syndrome.  Because there are no copies of any treatment records from that facility in the claims file, the Board finds that a remand is necessary so that any outstanding private treatment records from the Inver Grove Heights Family Practice dated since 2011 may be associated with the claims file.

The Veteran raised the theory of service connection as secondary to his PTSD for the first time at the March 2014 Board hearing.  As such, he has not yet been notified as to how to substantiate a claim for secondary service connection, including by aggravation.  Therefore, on remand, the Veteran must be provided with such notice.

B.  Residuals of Acne or Chloracne

The Veteran claims that he has residuals of chloracne or acne, including scars, that was caused by exposure to Agent Orange during his service in Vietnam.  

The Veteran testified at the Board hearing that he experienced chloracne in service, and that it was treated in service with sulfur soap.  He testified that he continued to experience it until around 10 years ago, and that he now has residual scarring.  He also testified that he was treated in the 1980s and 1990s privately, but that he did not have copies of any of these treatment records.

As an initial matter, the Board notes that the Veteran's DA Form 20 reflects that he served in the Republic of Vietnam from June 1968 to February 1970.  Therefore, exposure to herbicides is conceded in this case.  See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2013).  Also, his service treatment records show that in December 1968, the Veteran was treated for acne vulgaris with Fostex soap.  He reported on his February 1970 separation report of medical history that he had experienced boils (and he reported a history of symptoms like boils at the Board hearing).

In the case of veterans who have been exposed to an herbicide agent during active service, 38 C.F.R. § 3.309(e) provides presumptive service connection for certain listed diseases, which listed diseases include chloracne, but not any other form of acne.

The Board notes that there is currently no record of diagnosed chloracne in the claims file.  The Board does acknowledge, however, the Veteran's testimony outlined above, and the photographs he recently submitted of the skin on his face and shoulders or upper back.

The Veteran testified at the Board hearing that post-service, he was treated in the 1980s and 1990s but did not have copies of these records.  Also, the Veteran recently submitted an April 2014 letter from Dr. J.M. in which she noted that the Veteran has acne scarring (and in which she discussed the etiology, which is addressed below).  As it appears that several private treatment records may be outstanding, the Board finds that a remand is necessary so that any outstanding private treatment records from Dr. J.M. may be associated with the claims file, and so that the Veteran may be provided with another opportunity to identify any other outstanding private treatment records for VA to obtain.

In her April 2014 letter, Dr. J.M. noted that the Veteran reported that he had been exposed to Agent Orange in service and that he experienced a severe acne outbreak in service.  Dr. J.M. opined that it is a "strong possibility" that exposure to Agent Orange in service caused his acne, but that she was unable to confirm if it was the cause (she also noted that Agent Orange exposure has certainly been associated with chloracne).  

The Board notes that the Veteran has not been provided with a VA examination relating to his claim.  In light of the December 1968 service treatment record showing treatment for acne vulgaris, the February 1970 separation report of medical history, and the April 2014 letter from Dr. J.M. noting that the Veteran has acne scarring and tending to indicate that it may be related to his service, the Board finds that the low threshold requirement for a VA examination has been met and, therefore, on remand, the Veteran should be afforded a VA examination.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).




Accordingly, the case is REMANDED for the following action:

1. Provide the Veteran with notice as to how to substantiate his claims for secondary service connection for hypertension and for restless leg syndrome (as secondary to service-connected PTSD).

2. Obtain copies of any outstanding treatment records from the Inver Grove Heights Family Practice relating to the Veteran's claimed hypertension and restless leg syndrome dated since 2011; to that end, request that the Veteran provide a completed Form 21-4142 authorization.  If any of these records are found to be unavailable, this should be specifically noted in the claims file.

3. Obtain copies of any outstanding treatment records from Dr. J.M. relating to the Veteran's claimed acne or chloracne dated since 2014; to that end, request that the Veteran provide a completed Form 21-4142 authorization.  If any of these records are found to be unavailable, this should be specifically noted in the claims file.

4. Also, ask the Veteran to identify any other outstanding private treatment records relating to his claims, and to provide the requisite Forms 21-4142 authorizations so that any records so identified may be obtained.  If any of records identified are found to be unavailable, this should be specifically noted in the claims file.

5. After all of the above development has been completed, schedule the Veteran for a VA examination to address whether it is at least as likely as not (50 percent probability or greater) that the Veteran has residuals of acne or chloracne (to include scarring) that are related to conceded in service herbicide exposure, or that otherwise had its onset in service or is otherwise related to his active service.

Review of the entire file is required; however, attention is invited to the Veteran's December 1968 service treatment record showing treatment for acne vulgaris and his February 1970 separation report, indicating a history of boils.

The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached.  The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

6. Then, readjudicate the Veteran's claims.  If any claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC).  After the Veteran and his representative have been given the applicable time to submit additional argument, the claim(s) should be returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs