Citation Nr: 0800685 Decision Date: 01/08/08 Archive Date: 01/22/08 DOCKET NO. 05-36 791A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial compensable evaluation for hidradenitis suppurativa (boils and abscesses). 2. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease, left knee. 3. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease, right knee, status post meniscectomy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Associate Counsel INTRODUCTION The veteran had active military service from April 1966 May 1968. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In November 2007, the veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A review of the record discloses a need for further evidentiary development in this case. Initially, the Board must address the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005)), which imposes obligations on VA in terms of its duties to notify and assist claimants. A review of the claims file reveals that the veteran has not been properly notified of the provisions of the VCAA with respect to the issue of entitlement to an initial compensable evaluation for hidradenitis suppurativa. Therefore, it is apparent that the Board must remand this case to ensure that the veteran is properly notified of the VCAA and to determine whether all evidence needed to consider the claim has been obtained. In addition, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and; 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Although the appellant was provided in November 2003 with notice of what type of information and evidence was needed to substantiate his claims for increased evaluations for his knee disabilities, he was not provided with notice of the type of evidence necessary to establish an effective date for the disabilities on appeal. Thus, the veteran should be provided proper notice under 38 U.S.C.A. § 5103(a) and; 38 C.F.R. § 3.159(b). With respect to the issues of entitlement to increased evaluations for the veteran's service-connected right and left knee degenerative joint disease, the veteran testified at the November 2007 videoconference hearing that his knees had worsened since the last VA examination in 2004. With respect to the issue of entitlement to increased evaluation for the veteran's service-connected hidradenitis suppurativa, the veteran testified at the November 2007 videoconference hearing that his skin disability appears under the arms, between the legs, behind his ear and on his face. He also identified a scar on his face just to the left and below his left eye from excision. The veteran also identified a scar on his back. The Board notes that the veteran underwent a VA dermatology examination in June 2004. The examiner identified a 4-cm wide, 2-cm deep scar on the lower back but did not identify the facial scar. Thus, it is the Board's opinion an additional medical examination of the veteran is warranted to assess the severity of the veteran's service-connected disabilities currently on appeal. In addition, the appellant is currently receiving disability benefits from the Social Security Administration (SSA). The conditions upon which such benefits were awarded include degenerative changes of the knees. VA is required to obtain evidence from the Social Security Administration, including decisions by the administrative law judge, and give the evidence appropriate consideration and weight. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996). Further, the veteran receives routine treatment at the St. Louis VA Medical Center - John Cochran Division. While this case is in remand status, the RO should obtain all records of current treatment. In reviewing the VA records in the file, the Board notes no records were obtained since April 2004. Accordingly, the case is REMANDED for the following action: 1. Notice contemplated by the VCAA should be undertaken, including, but not limited to, informing the veteran of the information and evidence not of record (1) that is necessary to substantiate the claim for increased rating for the disabilities on appeal; (2) that VA will seek to obtain; and (3) that the claimant is expected to provide. The veteran should also be advised to provide any evidence in his possession that pertains to the claim. In addition, the veteran should be informed an effective date for the award of benefits will be assigned if increased evaluation is awarded. 2. All records from St. Louis VA Medical Center (John Cochran Division) of treatment since April 2004 for degenerative joint disease of both knees and hidradenitis suppurativa from should be obtained and associated with the claims file. 3. The veteran's medical and adjudication records should be requested from the Social Security Administration. All efforts to obtain these records should be fully documented, and the Social Security Administration should provide a negative response if records are not available. 4. After the above-development has been completed, the veteran should be afforded a VA examination to ascertain the severity of his service-connected right and left knee degenerative joint disease. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. Application of 38 C.F.R. § 4.40 regarding functional loss due to pain and 38 C.F.R. § 4.45 regarding weakness, fatigability, incoordination or pain on movement of a joint should be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 5. The veteran should be afforded a VA examination to ascertain the severity of his service-connected hidradenitis suppurativa. The examiner should identify any active processes, and also identify any scarring associated with past abscesses. If an active process is identified, the examiner should state what percent of the entire body and exposed areas are infected, and the precise medical treatment provided during the last twelve months. For each scar identified as due to hidradenitis suppurativa, whether due to spontaneous drainage of a lesion or surgical treatment of a lesion, the examiner should describe the scar in detail, to include the precise location and measurement of each scar. The examiner should state whether there are deep scars exceeding 6 square inches (38 square cm), or exceeding 12 square inches (77 square cm), or exceeding 72 square inches (465 square centimeters), or exceeding 144 square inches (929 square cm); and should state whether there are "superficial" (that is, not associated with underlying soft tissue damage) scars which are not productive of limitation of function which are the size of an area or areas of 144 square inches (929 square cm) or greater. For superficial scars, the examiner should state whether the scar is painful on examination, "unstable" (that is, there is frequent loss of covering of skin over the scar); or produce limitation of function, and if so, what limitation of function (e.g., limitation of motion, neurological impairment or pain with use.) 6. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. The appellant has the right to submit additional evidence and argument on the matter or 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. 2007). _________________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).