Citation Nr: 1300631 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 08-32 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased initial rating for posttraumatic stress disorder (PTSD), currently rated at 30 percent disabling. 2. Entitlement to service connection for a skin disability, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Edward M. Farmer, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran had active service from November 1967 to June 1969, with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2007 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a skin disability. The Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge in July 2010. The skin disability claim was then remanded by the Board in August 2010. While the case was in remand status, a May 2012 rating decision granted the Veteran entitlement to service connection for PTSD, rated at 30 percent disabling. The Veteran filed a notice of disagreement in October 2012. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 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 must remand the Veteran's claims for additional development. The Veteran contends that he is entitled to a higher rating for his service-connected PTSD and that he has a skin disability as a result of herbicide exposure while serving in the Republic of Vietnam. As a preliminary matter, the Board notes that in October 2012, the Veteran submitted a statement that the Board has found to be a timely notice of disagreement with the 30 percent disability rating assigned for PTSD in the May 2012 rating decision. A review of the record shows that the Veteran was not furnished a Statement of the Case (SOC) in response to his notice of disagreement. Because the notice of disagreement placed this issue in appellate status, the matter must be remanded for the originating agency to issue an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Board notes that the matter of service connection for a skin disability was remanded in August 2010 in order to afford the Veteran a VA examination. In the August 2010 remand, the Board noted that the Veteran had previously been diagnosed with various skin disabilities, including, but not limited to, inflammatory seborrheic dermatitis and eczematous dermatitis. However, the October 2010 VA examiner limited his examination and his opinion to the Veteran's 1994 diagnosis of pityriasis rosea, opining that such was not related to his active service. The VA examiner did not consider, or even discuss, the Veteran's other skin disability diagnoses mentioned in the Board remand and contained within the record when forming his opinion. While the record reflects that the October 2010 VA examination was conducted pursuant to the Board's remand, upon review of the examination report, the Board finds that the examination with respect to the claim of entitlement to service connection for a skin disability, to include as secondary to herbicide exposure, is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Court has held that compliance by the Board or the RO with remand instructions is neither optional nor discretionary and that a remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Consequently, another remand is necessary to obtain a new VA examination to determine the nature and etiology of the Veteran's variously diagnosed skin disorders. Furthermore, received subsequent to the October 2010 VA examination are additional private treatment records that further document the Veteran's treatment for his skin disability that should be considered by the VA examiner. Accordingly, the case is REMANDED for the following action: 1. The RO should provide the Veteran with a statement of the case as to the issue of entitlement to an increased initial rating for PTSD. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely substantive appeal is not filed, the claim should not be certified to the Board. 2. The Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of his variously diagnosed skin disabilities. The examiner should review the contents of the claims file, and obtain relevant history from the Veteran. After examining the Veteran and reviewing the claims file, the examiner should offer an opinion as to whether it is at least as like as not (a 50 percent or better probability) that any currently diagnosed skin disability is causally related to the Veteran's active service, to include exposure to herbicides therein. The examiner's opinion should address the previous diagnoses of inflammatory seborrheic dermatitis, eczematous dermatitis, and pityriasis rosea. A detailed rationale should be furnished for the opinion. 3. Then, the RO should readjudicate the skin claim on the merits. If the benefit sought remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. 2012). _________________________________________________ MICHELLE L. KANE 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) (2012).