Citation Nr: 1119613 Decision Date: 05/20/11 Archive Date: 05/27/11 DOCKET NO. 10-00 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio ISSUE Entitlement to an increased disability evaluation in excess of 10 percent for service-connected pseudofolliculitis barbae (skin disability). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. R. Bodger INTRODUCTION The Veteran served on active duty from April 1969 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which continued the 10 percent evaluation for his skin disorder. In January 2011, the Veteran testified before the undersigned Veterans Law Judge during a video conference hearing. A transcript of the proceeding has been associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Reason for Remand: To obtain Social Security Administrative (SSA) records and schedule a new VA dermatological examination The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. Id. The duty to assist includes obtaining copies of any decisions granting SSA disability benefits as well as the supporting medical documents that are potentially relevant when VA is notified that a veteran receives such disability benefits. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); Hayes v. Brown, 9 Veteran. App. 67 (1996); see also Hyatt v. Nicholson, 21 Vet. App. 390, 394 (2007) (holding that the relevance of documents cannot be known with certainty before they are obtained). In this case, the Board observes that the Veteran is in receipt of monthly benefits from SSA. He testified during his January 2011 Board hearing that he receives SSA disability benefits and submitted statements in April 2008 of payment received. It is unclear from his statements what disabilities he receives his SSA disability benefits. Because these records may be relevant to the Veteran's claim, the RO should obtain and associate such records with the Veteran's claims file. In addition, the Board observes that the Veteran was last afforded a VA examination in March 2009 to assess the severity of his skin disability. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nichols, 21 Vet. App. 303, 312 (2007). During the March 2009 VA examination, the examiner provided that the Veteran's skin disability was intermittent and worsened with shaving. He indicated that the Veteran took benzyl peroxide cream and "another cream," which was described as a topical corticosteroid treatment on a 76 day on/7 day off schedule that had lasted for the last two years. The examiner indicated that there were no symptoms related to his skin disorder and provided that there was no scaring, evidence of acne, scarring alopecia, alopecia areata, or hyperdrosis. He also provided that there was no disfigurement or disfiguring scar of the head, face, or neck. The examiner found that the Veteran's skin disability affected about 1 percent of the Veteran's exposed area and one tenth of 1 percent of his entire body. He diagnosed the Veteran with pseudofolliculitis barbae. After noting that the Veteran did not have any scarring, the examiner then filled in a box on the examination worksheet under the heading "If yes, provide scar(s) diagnosis." The examiner noted in this box, "Beard is very, very short. Involved area is lateral to Left Upper lip 1/4 cm x 2.5 cm. Very mild condition." Thus, it appears that the examiner was indicating an area of scarring lateral to the left upper lip. There was no opinion rendered as to whether the Veteran's skin disability caused any functional effects or affected his employability. During the Board hearing, the Veteran contended that the March 2009 examiner did not perform a physical examination of his facial skin. Instead, the examiner made only visual findings. The Veteran provided that without a physical examination of his skin, the examiner could not have seen the area affected on his cheeks as they were hidden by his beard. Further, the Veteran provided that the examiner was not a dermatologist and did not have a working knowledge of pseudofolliculitis barbae, its symptoms, or characteristics. In light of these complaints and because the case must be remanded to obtain SSA records, the Veteran must be scheduled for a new dermatological examination to assess the severity of his severity of his pseudofolliculitis barbae. Further still, his representative asserted that the Veteran's condition had worsened since his last VA examination in March 2009. VA treatment records dated from August 2009 to September 2010 show that the Veteran had no active lesions and that his skin disability was well controlled by medication, to include benzyl peroxide gel and clindamycin phosphate. However, a November 2011 treatment note provides that the Veteran's lesions had become more active. He was prescribed new medication, to include TCN 500 mg, Retin-A, and Cleocin-T. There are no recent treatment notes associated with the claims file to show whether his active lesions had been cleared or whether they remained active. However, the November 2010 treatment note appears to show that the Veteran's skin disability may have become worse since his March 2009 VA examination. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). On remand, the Veteran should be scheduled for a VA examination to determine the nature and severity of his skin disability. If feasible, the Veteran should be examined while his skin disorder is exhibiting observable symptomatology. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994) (indicating that, to the extent possible, VA should schedule an examination for a condition that has cyclical manifestations during an active stage of the disease to best determine its severity); see also Bowers v. Derwinski, 2 Vet. App. 675, 676 (1992). If however, there is no current showing of active lesions when the Veteran is examined, the examiner should offer an opinion regarding the etiology of the diagnosed disorders based on the evidence in the file. Further, and as provided above, the last associated VA treatment record was dated in November 2011 and showed potentially worsening symptoms for his skin disability. On remand, the RO should obtain updated treatment records from the Cleveland VA Medical Center from November 2011. Accordingly, the case is REMANDED for the following action: 1. Obtain and associated with the claims file any updated treatment records from the Cleveland VA Medical Center dated from November 2011 to the present. 2. Also, obtain and associate with the claims file the records upon which the SSA based its decision to award benefits to the Veteran. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of these records. 3. Then, schedule the Veteran for an examination to determine the extent and severity of his service-connected pseudofolliculitis barbae. The examiner is specifically requested to fully describe the Veteran's use, if any, of systemic therapy such as corticosteroids or other immunosuppressive drugs and duration of their use. The examiner should also assess whether the Veteran's disability has produced scarring and describe the characteristics of any scarring (i.e. size, texture, contour, color, stability, pain, and/or inflexibility). In addition, the examiner should conduct a thorough review of the medical evidence of record and, to the extent possible, provide a medical opinion as to the evolving nature and severity of the Veteran's pseudofolliculitis barbae. The examiner should also opine as to the Veteran's ability to obtain gainful employment due to this disability. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached, in a legible report and clearly indicate what records were reviewed in reaching such opinions. If the examiner is unable to provide the requested information or opinions with any degree of medical certainty, the examiner should clearly indicate that fact. 4. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, 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. The Veteran 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).