Citation Nr: 1211421 Decision Date: 03/29/12 Archive Date: 04/05/12 DOCKET NO. 06-31 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a rating in excess of 10 percent for a crusted lesion, lower left leg. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Pflugner INTRODUCTION The Veteran served on active duty from June 1970 to December 1971 and from March 1972 to January 1980. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, on behalf of the RO in Cleveland, Ohio. The issue of entitlement to a rating in excess of 20 percent for osteomyelitis has been raised by the record, but has not been adjudicated by RO. Therefore, the Board does not have jurisdiction over this claim, and it is referred to the RO for appropriate action, if appropriate action has not already been undertaken. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND In January 2010, the Board remanded the above-captioned claim for further development. Specifically, the Board found that the medical evidence of record was inadequate because it did not describe the unique symptomatology, if any, of the crusted lesion, lower left leg, for which service connection was granted in April 1982. During the pendency of this appeal, the Veteran claimed that drainage from his service-connected osteomyelitis, left tibia, caused a lesion to occasionally form on his lower left leg. However, the evidence of record did not associate or disassociate the service-connected crusted lesion, lower left leg, from the lesion associated with the Veteran's service-connected osteomyelitis, left tibia. Given the medical complexity of this claim and the lack of adequate medical evidence, the Board found that a VA examination was warranted to clarify the current, unique symptomatology of the Veteran's service-connected crusted lesion, lower left leg, to the extent possible. See Mittleider v. Brown, 11 Vet. App. 181 (1998). Moreover, the Board found that a remand was warranted for an examination in order to avoid impermissible pyramiding. See 38 C.F.R. § 4.14 (2011); see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran underwent a VA examination in February 2010. The Veteran's chief complaint was "lesion on left posterior calf." The Veteran reported that he experienced a painful skin lesion since 2005 after debridement of cutaneous and bone infection on the anterior aspect. He also reported that this lesion improved with oral antibiotics and seemed to be constantly progressing with an increase in number of markings, but remained localized to the superior posterior aspect of the leg. At the time of this examination, the Veteran reported that it was a "good day" for "the rash," as more "spots" were usually present on his posterior calf. The Veteran stated that a previous medication regime included minocycline from May to July 2009. There were no side effects to the medication, and the Veteran reported no improvement in "lower extremity lesion." After a physical examination, the assessment was "[p]ost [i]nflammatory hyperpigmentation secondary to unclear etiology." The examiner then opined that it was unclear whether the lesion was caused by a reaction during initial procedure of incision and drainage in 2005 of the proximal tibial osteomyelitis infection or deposition of minocycline into previous scar site or poor healing of the lesion secondary to existing peripheral vascular disease, or a combination of the above. As he reported during the February 2010 VA examination, the Veteran's present complaints regarded a skin lesion that was associated with his osteomyelitis. He stated that this lesion has been present since a 2005 debridement. Yet, he is seeking entitlement to an increased rating for a crusted lesion for which service connection was granted in April 1982, at which time there was no apparent association with osteomyelitis. Based on a longitudinal review of the claims file, including the February 2010 VA examination report, the Board is unable to ascertain the whether the Veteran's service-connected crusted lesion is a separate and distinct disability or whether it is a manifestation of his service-connected osteomyelitis. If the former is the case, the evidence of record still does not include findings of unique symptoms associated with the lower left leg crusted lesion. If the latter is the case, the RO must consider whether the separately service-connected and separately rated crusted lesion, lower left leg, and osteomyelitis constitutes impermissible pyramiding. Id. As such, the Board finds that a remand is required further development, to include obtaining a supplemental opinion from the February 2010 VA examiner or affording the Veteran another VA examination. Accordingly, the case is remanded for the following action: 1. The RO must create a report describing the lower left leg disability that was granted service connection in April 1982, including all of the relevant symptoms and the exact location of the crusted lesion. The RO must associate a copy of this report with the Veteran's claims file. 2. Thereafter, the RO must then request that the February 2010 VA examiner provide a supplemental opinion. Specifically, the RO must request that the examiner provide responses to the following: (i) Discuss the nature of the lower left leg crusted lesion that was granted service connection in April 1982. (ii) Discuss the treatment associated with the Veteran's left iliac wing fracture, including the insertion of a pin into the Veteran's left tibia, to include a description of the exact location of that pin insertion site. (iii) Opine as to whether the lower left leg crusted lesion for which service connection was granted in April 1982 is a residual of the tibial pin insertion, to include as a result of osteomyelitis, or whether the lower left leg crusted lesion for which service connection was granted in April 1982 is a wholly separate and distinct disability. (iv) Regardless of the answer to (iii), the examiner must provide a comprehensive description of the current symptoms associated with the lower left leg crusted lesion for which service connected was granted in April 1982. The claims file and all records on Virtual VA be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. A complete rationale for any opinion expressed must be included in the examination report. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 2. If the February 2010 VA examiner is unavailable to provide the requested supplemental opinion, the RO must afford the Veteran another VA examination. The claims file and all records on Virtual VA be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. The examiner must report the frequency/persistence of any findings. The RO must request that the new examiner provide responses to the following: (i) Discuss the nature of the lower left leg crusted lesion that was granted service connection in April 1982. (ii) Discuss the treatment associated with the Veteran's left iliac wing fracture, including the insertion of a pin into the Veteran's left tibia, to include a description of the exact location of that pin insertion site. (iii) Opine as to whether the lower left leg crusted lesion for which service connection was granted in April 1982 is a residual of the tibial pin insertion, to include as a result of osteomyelitis, or whether the lower left leg crusted lesion for which service connection was granted in April 1982 is a wholly separate and distinct disability. (iv) Regardless of the answer to (iii), the examiner must provide a comprehensive description of the current symptoms associated with the lower left leg crusted lesion for which service connected was granted in April 1982. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. If a new VA examination is afforded to the Veteran, the RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2011). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to the Veteran's last known address. Documentation must also be obtained and associated with the Veteran's claims file that indicates whether any notice that was sent was received or returned as undeliverable. 4. Once the above action has been completed, the RO must re-adjudicate the Veteran's claim on appeal, taking into consideration any newly acquired evidence. Specifically, based on a review of the examiner's opinion, the RO must address whether the separate ratings assigned to the Veteran's lower left leg crusted lesion and osteomyelitis constitute impermissible pyramiding. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. No action is required by the Veteran until he receives further notice; however, 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). _________________________________________________ JOY A. MCDONALD 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) (2011).