Citation Nr: 0809894 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 04-32 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an evaluation in excess of 10 percent for sebhorrheic dermatitis of the scalp, back, neck and trunk. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Catherine Cykowski, Associate Counsel INTRODUCTION The veteran had active service from June 1972 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Board previously remanded this matter in April 2007. 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 In April 2007, the Board remanded this matter for additional development, to include a VA examination. The examiner was asked to determine what percentage of the body is affected by dermatitis, including the percentage of exposed areas affected. A report of the May 2007 VA examination reflects that a VA physician determined that dermatitis affects less than five percent of the entire body; however, the examiner did not state what percentage of exposed areas is affected. A remand by the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders and that VA has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). While the Board regrets the additional delay to the veteran, a remand is necessary so that a VA examination may be obtained for the purpose of determining what percentage of exposed areas of the body are affected by dermatitis. As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2007). For increased compensation claims, section § 5103(a) requires the Secretary to notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. This notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g. competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip. op. at 5-6. To date, the veteran has not been provided with proper notice. Accordingly, the case is REMANDED for the following action: 1. Provide the veteran with corrective notice that satisfies the requirements outlined in Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). 2. Schedule the veteran for a VA dermatology examination. The claims file should be made available to the examiner for review in connection with the examination. Following a thorough examination, the examiner should diagnose any dermatitis, if present. The examiner should then: a. Identify the areas of the body affected by dermatitis, and; b. State what percentage of the entire body is affected by dermatitis, and; c. State what percentage of exposed areas of the body is affected by dermatitis. d. State whether topical or systemic therapies are required for treatment. If systemic therapies are required, the examiner should state the frequency and duration of the use of systemic therapies during the 12 months preceding the examination. 3. Thereafter, the RO should readjudicate the claim on appeal based on all of the evidence of record. If the disposition of the claim remains unfavorable, the RO should furnish the veteran and his representative a supplemental statement of the case (SSOC) and afford an applicable opportunity to respond. The claim should then be returned to the Board, if in order. 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). _________________________________ M. E. LARKIN 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).