Citation Nr: 0835769 Decision Date: 10/17/08 Archive Date: 10/27/08 DOCKET NO. 02-06 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a rating higher than 10 percent for pseudofolliculitis barbae. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The veteran had active military service from June 1979 to June 1982. This appeal to the Board of Veterans' Appeals (Board) originated from an August 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied the veteran's claim for a rating higher than 10 percent for his pseudofolliculitis barbae. The Board twice remanded this case to the RO for further development and consideration, initially in July 2003 and again in February 2005. The Board subsequently issued a decision in November 2006 denying the claim for a rating higher than 10 percent for the pseudofolliculitis barbae. The Board also denied three additional claims the veteran had appealed, for service connection for seborrheic dermatitis and acne vulgaris - including secondary to his already service-connected pseudofolliculitis barbae, and determined the RO had not committed clear and unmistakable error (CUE) in a July 1999 decision awarding an initial 10 percent rating for the pseudofolliculitis barbae. The veteran appealed the Board's November 2006 decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2008 memorandum decision, the Court affirmed the Board's denials of the claims for service connection for acne vulgaris and seborrheic dermatitis, as well as the Board's determination that there was no CUE in the July 1999 RO decision assigning an initial 10 percent rating for the pseudofolliculitis barbae. So those claims are no longer at issue. However, the Court vacated the portion of the Board's decision that had denied a rating higher than 10 percent for the pseudofolliculitis barbae and remanded this claim for further development and readjudication in compliance with directives specified. The Court entered judgment in April 2008. In July 2008 the veteran submitted additional pertinent evidence to the Board and waived his right to have the RO initially consider it. 38 C.F.R. § 20.1304(c) (2007). This additional evidence includes a statement requesting to reopen his claims for service connection for seborrheic dermatitis and acne vulgaris. To reopen these claims, which, as mentioned, the Board already denied in its prior November 2006 decision (which the Court affirmed on appeal), this evidence must be new and material. See 38 C.F.R. § 3.156 (2007). And despite the waiver, the RO must make this threshold preliminary determination, not the Board, to avoid potentially prejudicing the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). So these claims are referred to the RO for appropriate development and reconsideration. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board does not have jurisdiction of an issue not yet adjudicated by the RO). There is one other preliminary point worth mentioning. On August 12, 2008, the Board denied the veteran's motion to advance his case on the docket. Before readjudicating the remaining claim at issue for a higher rating for the pseudofolliculitis barbae, the Board is remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. REMAND The basis of the Court's March 2008 memorandum decision, vacating the Board's prior November 2006 decision denying a rating higher than 10 percent for the veteran's pseudofolliculitis barbae, is that the Board failed to provide an adequate statement of its reasons and bases for concluding the current level of severity of this condition is of primary importance, see Francisco v. Brown, 7 Vet. App. 55, 58 (1994), rather than also considering whether the rating for this condition should be "staged" to comply with the holding in a more recent precedent decision, Hart v. Mansfield, 21 Vet App 505 (2007), although issued after the Board's November 2006 decision. That is to say, the Board must consider whether there have been times, since one year prior to the veteran filing his claim for a higher rating, when his pseudofolliculitis barbae has been more severe than at others. See Hart, supra. See also 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2007). In making this important determination, the Court indicated the Board must address the veteran's arguments that his service-connected skin condition increased in severity between January 1999 and 2006 and that he experienced recurrent episodes of constant flare-ups. He further argues that the Board failed to take into account evidence of deep inflamed nodules and pus-filled cysts, which he says affect 40 percent or more of his face and neck. The Court declined to address his remaining arguments, preferring, instead, to allow the Board an opportunity to initially address them when readjudicating the claim. See Best v. Principi, 15 Vet. App. 18, 20 (2001). And, as mentioned, since receiving the case back from the Court, the veteran has submitted additional evidence in July 2008, including additional private medical treatment records dated from 2004 through 2008, as a means of showing he is entitled to a higher rating for his pseudofolliculitis barbae. He was last examined in November 2005, so almost 3 years ago, to assess the severity of his pseudofolliculitis barbae. The Court has held that when, as here, a veteran claims that a disability is worse than when originally rated (or last examined by VA), and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide another examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (where the Court determined the Board should have ordered a contemporaneous examination of the veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). See, as well, VAOPGCPREC 11-95 (April 7, 1995) and Green v. Derwinski, 1 Vet. App. 121 (1991). Also, the Court has held that advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court, and that such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ("Court will [not] review BVA decisions in a piecemeal fashion"); see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992) ("[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"). So to avoid potential piece meal adjudication of the veteran's appeal, keeping in mind that he also is in the process of trying to reopen his claims for service connection for seborrheic dermatitis and acne vulgaris on the basis of new and material evidence (conditions that he is alleging are secondary to his service-connected pseudofolliculitis barbae), the Board will remand this appeal for a current examination and then adjudicate the claim for a higher rating for the pseudofolliculitis barbae considering all applicable legal theories and precedents, including, as mentioned, Hart. The RO/AMC should also undertake any other development and/or notification action deemed warranted prior to readjudicating the claim for a higher rating for the pseudofolliculitis barbae. This includes providing the veteran additional notice compliant with the recent decision in Vasquez-Flores v. Peake, 22 Vet. App. 37 (2008) (indicating that, in an increased-compensation claim, section 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate the claim, he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life). Accordingly, this case is REMANDED for the following additional development and consideration: 1. Send the veteran notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), and as outlined by the Court in Vasquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. Obtain records from the Atlanta VA Medical Center and VA CBOC East Point, Georgia, concerning any evaluation and treatment the veteran has received for skin conditions since January 2006, and put these additional records in his claims file for consideration. 3. Schedule the veteran for a VA dermatological examination to assess the severity of his service-connected pseudofolliculitis barbae. The examiner should describe the area(s) of the body affected by this skin condition (and specifically this condition), to include the percentage of the entire body affected and the percentage of exposed area(s) affected. The examiner must also specifically indicate whether the veteran has been prescribed systemic therapy such as corticosteroids or immunosuppressive drugs and their required duration in the past 12-month period. If the veteran has any additional skin disorders other than the service-connected pseudofolliculitis barbae, but particularly acne vulgaris and seborrheic dermatitis, this should be so stated. And, unless it is determined these conditions are proximately due to, the result of, or chronically aggravated by the service-connected pseudofolliculitis barbae, the examiner should try and quantify the percentage of the veteran's entire body affected and the percentage of exposed area(s) affected only by the pseudofolliculitis barbae. The claims file, including a complete copy of this remand, must be made available to the examiner for review of the pertinent medical and other history. 4. Then readjudicate the claim for a rating higher than 10 percent for the pseudofolliculitis barbae in light of the additional evidence. This readjudication must include considering whether the veteran's rating for this condition should be "staged" under Hart v. Mansfield, 21 Vet App 505 (2007). If a higher rating is not granted to his satisfaction, send him a supplemental statement of the case (SSOC) and give him and his representative an opportunity to respond before returning the case to the Board for further appellate consideration. The veteran has the right to submit additional evidence and argument concerning the claim 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. 2008). _________________________________________________ KEITH W. ALLEN 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) (2008).