Citation Nr: 1104395 Decision Date: 02/03/11 Archive Date: 02/14/11 DOCKET NO. 09-06 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to a compensable evaluation for right ear hearing loss. 2. Entitlement to a compensable evaluation for skin rash of the face and body. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Wichita, Kansas. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in May 2010; a transcript of that hearing is associated with the claims folder. The Veteran submitted a treatment report in April 2009 by way of his accredited representative that discusses a possible relationship between sun exposure during service and current sun-related skin damage, including actinic keratoses and nonmelanoma skin cancer. While the Veteran is currently in receipt of service-connected compensation benefits for a skin disability, such benefits pertain to a skin rash/infection and not sun-related skin damage. The issue of entitlement to service connection for skin damage of the skin has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 The Board regrets further delaying the Veteran's increased rating claims on appeal, however, information of record indicates there is outstanding evidence from VA and non-VA sources that may be relevant to these claims. First, the Veteran indicated in his May 2007 claim for increased ratings that he receives medical treatment at the VA Medical Center (VAMC) in Wichita, Kansas, yet there are no VAMC treatment records associated with the claims file. Since the Board finds that it cannot assuredly conclude that the outstanding VA treatment records do not contain information relevant to the claims on appeal, a remand is necessary to associate with the claims file all VA outpatient treatment records dated since May 2006 from the Wichita VAMC. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); see also 38 U.S.C.A. § 5103A(b) (West 2002). In addition to obtaining outstanding VA treatment records, the Agency of Original Jurisdiction (AOJ) should contact the Veteran and ask him to provide copies of records associated with treatment for his service-connected skin rash from Drs. Marshall and Pribil as mentioned at the May 2010 videoconference hearing or provide the VA with information sufficient to obtain these records. The AOJ should also specifically inquire as to whether the Lamisil prescribed by these physicians was topical or oral, and if he was prescribed a course of oral Lamisil tablets, to specify the period(s) of time during which he took such medication. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2010) (stating that a compensable evaluation is appropriate when there is evidence of systemic therapy). The AOJ should also notify the Veteran that he should submit any information that might verify when he took oral Lamisil tablets, including prescription records and/or pharmacy receipts. Following receipt of any outstanding medical evidence, the Veteran should be scheduled for another VA skin examination and every effort should be made to schedule the examination during a flare-up and/or during the summer months. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994). In addition to discussing the current percent of exposed areas of the body and percent of the total body affected by the skin rash, the examiner should review the claims file and provide opinion(s) regarding the percent of exposed area and total body area affected during prior examinations by VA and private physicians. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he either (a) submit any records associated with treatment by Dr. Marshall and Dr. Pribil, or (b) provide the VA with information such that it can obtain this outstanding evidence. 2. Ask the Veteran to provide information as to whether the Lamisil prescribed by Drs. Marshall and Pribil was topical or oral, and if it was a course of oral Lamisil tablets, to specify the period(s) of time during which he took such medication. The AOJ should also notify the Veteran that he should submit any information that might verify when he took oral Lamisil tablets, including prescription records and/or pharmacy receipts. 3. Obtain any VA outpatient treatment records, including any audiogram results, from the Wichita VAMC for the period from May 2006 through the present. A response, negative or positive, should be associated with the claims file. Requests must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. 4. If any VA or non-VA treatment records are unable to be located and/or obtained following reasonable efforts, the AOJ should notify the Veteran that such records are not available, explain the efforts made to obtain to the records, describe any further action VA will take regarding the claim, and inform the Veteran that it is ultimately his responsibility for providing the evidence. 5. After any outstanding evidence has been associated with the claims file, schedule the Veteran for a VA skin examination. All effort should be made to schedule this examination for a time when his skin disease is active and/or during the summer months. The claims file, to include this REMAND, must be made available to the examiner for review, and the examination report should indicate that the claims folder was reviewed in conjunction with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Following an examination of the Veteran, to include his face, hands, arms, legs, chest, groin, and feet, the examiner should: (a) Describe any manifestations of a skin rash, including any residual scarring, and indicate the percent of entire body involved, the percent of exposed area affected, whether systemic therapy such as corticosteroids or other immunosuppressive drugs are required and, if so, the frequency and duration of their use. (b) Describe any disfigurement of the head, face, or neck associated with the Veteran's skin rash, including any residual scarring. (c) Review the contemporaneous medical evidence and provide opinion(s) regarding the percent of entire body involved and the percent of exposed area affected during prior examinations by VA and non-VA physicians. 5. Thereafter, the AOJ should review the claims file to ensure that the foregoing requested development has been completed. In particular, the AOJ should review the examination/opinion report(s) to ensure that they are responsive to and in compliance with the directives of this remand and if not, the AOJ should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completion of the above, and any other development deemed necessary, review the expanded record and determine if the Veteran has submitted evidence sufficient to warrant entitlement to the benefit sought. Unless the benefit sought on appeal is granted, the Veteran and his representative, if any, should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond. 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. 2010). _________________________________________________ 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) (2010).