Citation Nr: 1031271 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 05-06 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a chronic skin condition, to include as due to exposure to extreme cold. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Dale, Associate Counsel INTRODUCTION The Veteran had active service from July 1956 to March 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Detroit, Michigan, Regional Office (the RO) of the Department of Veterans Affairs (VA) which found that new and material evidence had not been received to reopen the claim for service connection for a chronic skin condition. This matter was previously before the Board in June 2007 and February 2009. In June 2007, the Board remanded the Veteran's claim for additional procedural and evidentiary development. Such development was completed and the Veteran's claim was returned to the Board. In February 2009, the Board granted the Veteran's petition to reopen his previously-denied claim and again remanded the Veteran's claim for further evidentiary development. The Veteran's claim has again been returned to the Board. The Board observes that the Veteran requested a personal hearing in a July 2003 statement. However, in his VA Form 9, the Veteran indicated that he no longer wanted a hearing. Accordingly, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). 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 Regrettably, the claim must once again be remanded for further development; the RO failed to follow the prior Remand order. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran alleges his skin condition is etiologically related to his service, to include exposure to extreme cold. The February 2009 Board Remand instructed the AMC to provide the Veteran with a VA examination and obtain etiological opinions concerning the Veteran's claim for service connection for a skin condition on direct and secondary bases. The AMC was to then readjudicate the Veteran's claim. Specifically, the February 2009 Board Remand requested that the VA examiner: [P]rovide an opinion as to whether it is at least as likely as not (a 50 percent degree of probability or higher) that a skin condition is related to active military duty. The examiner should also provide an opinion as to whether it is at least likely as not that a skin condition is proximately due to, or the result of, the service- connected residuals of frostbite. See the February 2009 Board Remand at page 10. Review of the Veteran's VA claims file reflects that the AMC's June 2009 VA examination request echoed the Board's February 2009 Remand instructions. However, the July 2009 VA examination report and August 2009 addendum fail to address the Veteran's claim on the theory of direct service connection. While the VA examiner specifically noted that the Veteran's service treatment records, to include his 1959 separation examination, are devoid of treatment or diagnosis of skin photosensitivity reaction, the VA examiner failed to opine as to whether the Veteran's diagnosed skin condition was etiologically related to his active military service, as instructed by the February 2009 Board Remand and the AMC's June 2009 VA examination request. While the examiner opined that the Veteran's current condition was not related to inservic treatment for tinea cruris, the examiner did not answer the question as to whether it is at least as likely as not that the Veteran's skin photosensitivity reaction was etiologoically related to service to and his report or an itch response to sunlight during his Korean service. In this regard, the Board notes that lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). That is, the Veteran is not competent to proferr an opinion as to the etiology of his current skin condition. However, lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). The Veteran is competent to report in-service symptoms such as itching in response to sunlight during service. Given those pronouncements, and the fact that significant development sought by the Board on the issue on appeal has not been completed, another remand is now required. 38 C.F.R. § 19.9 (2009). Accordingly, the case is REMANDED for the following actions: 1. Return the claims file to the VA examiner who examined the Veteran in July 2009. The examiner should again review the Veteran's claims file and provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's skin photosensitivity reaction is related to his active military duty. A complete rationale for any opinions reached should be provided. 2. If the July 2009 VA examiner is not available, schedule the Veteran for VA examination conducted by another VA physician. The claims file and this remand must be reviewed by the examiner. Request the examiner to provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's skin photosensitivity reaction is related to his active military duty. Note: A rationale should be provided for any opinion given and the factors upon which the medical opinion is based must be set forth in the report. 3. Then, after ensuring full compliance with the development requested above, readjudicate the Veteran's claim. If the claim is not granted, furnish the Veteran and his representative with a supplemental statement of the case (SSOC) and give them an opportunity to respond before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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. 2009). _________________________________________________ DAVID L. WIGHT 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) (2009).