Citation Nr: 1301525 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 08-33 210 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a skin disability other than seborrheic dermatitis, claimed as chloracne due to exposure to Agent Orange. 2. Entitlement to an initial rating in excess of 10 percent for residuals of head trauma. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Esq. ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1968. He is in receipt of a Purple Heart, which denotes participation in combat. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (RO) in Washington, District of Columbia, and Cleveland, Ohio, in August 2007 and October 2007, respectively. The former denied service connection for chloracne and the latter assigned an initial 10 percent disability rating for residuals of head trauma effective April 21, 2005. The RO in Roanoke, Virginia, is currently the agency of original jurisdiction. The Veteran's claim for service connection, filed in April 2006, specifically limits his claim to service connection for chloracne. See VA Form 21-4138. The medical evidence of record, however, reveals that while the Veteran has been treated for several skin disorders, he has not been treated for chloracne since the inception of his claim. Service connection is already in effect for seborrheic dermatitis (formerly evaluated as dermatomycosis). Given the foregoing, the Board has recharacterized the skin issue on appeal as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Prior to the initiation of the claims currently on appeal, the Veteran filed a claim for service connection for posttraumatic stress disorder (PTSD). Service connection for PTSD was granted with a 50 percent rating effective March 29, 2002. See June 2002 rating decision. The Veteran appealed the initial rating and the claim was remanded by the Board in December 2008. The Board subsequently denied the claim in September 2009 and the Veteran appealed the decision to the U. S. Court of Appeals for Veterans Claims (Court). Following a joint motion of the parties, the Court remanded the claim to the Board. In August 2010, the Board remanded the claim for an initial rating in excess of 50 percent for PTSD and the issue of entitlement to a total disability rating for individual unemployability (TDIU). In a December 2011 rating decision, the rating assigned for PTSD was increased to 70 percent effective March 29, 2002. In a March 2012 rating decision, entitlement to a TDIU was established, also effective March 29, 2002. Prior to the issuance of the December 2011 rating decision, the Veteran, through his attorney, limited his appeal to an increased initial evaluation for PTSD to 70 percent. See June 2011 statement in support of claim. Therefore, the assignment of a 70 percent rating going back to March 29, 2002, as well as the grant of entitlement to a TDIU, represents a complete grant of the benefits sought on appeal. Given the foregoing, neither issue remains before the Board for appellate review. The Veteran was scheduled to appear at a personal hearing before the Board in November 2012, but he canceled the hearing prior to that date. See October 2012 statement. As the record does not indicate the Veteran has requested that the hearing be rescheduled, the Board deems the Veteran's request for a hearing to be withdrawn. 38 C.F.R. § 20.704 (2012). REMAND The Veteran submitted additional evidence pertaining to his claim for service connection for skin disability after the claim was most recently adjudicated by the RO. The evidence includes two statements from a VA physician indicating that the Veteran may have had chloracne in the 1980s but did not have any current clinical evidence of chloracne. See letters from Dr. J.R.T. dated October 2012 and November 2012. The evidence also includes a statement from the Veteran in support of his claim, which essentially asserts that he can identify differences between his service-connected seborrheic dermatitis and the condition he contends is chloracne, and that the condition he contends is chloracne causes outbreaks several times a year in various areas of his body, to include his groin area, behind his ears, on his nose and on his back. See statement received in November 2012. The Board notes that while the Veteran is competent to report manifestations of a skin condition, he is not competent to report that it is chloracne. The Veteran's attorney asserts that the Veteran should be examined during an outbreak of the skin condition that he alleges is chloracne. Given the fact that the evidence received after certification of the issue to the Board was not accompanied by a waiver of consideration by the RO, and in light of the assertions raised by the Veteran regarding the manifestations of the alleged chloracne that differ from the service-connected seborrheic dermatitis, and the request made by the attorney regarding a VA examination during an outbreak, this claim must be remanded for additional development. See 38 C.F.R. §§ 3.159(c)(4), 19.31, 20.1304; McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran underwent a Disability Benefits Questionnaire (DBQ) traumatic brain injury (TBI) examination in May 2012. Several areas of impairment were identified. It is unclear, however, whether the impairments noted are due solely to the Veteran's service-connected head trauma or whether some or all of the impairments may be due to his service-connected PTSD. Clarification is needed. The VA examiner also indicated that the Veteran had hearing loss and/or tinnitus and alteration of sense of smell or taste. The DBQ worksheet indicates that if those impairments were checked, additional questionnaires (hearing loss and tinnitus; loss of sense of smell and taste) must be completed. Neither questionnaire was completed. This must be rectified on remand by scheduling another examination. Recent VA treatment records should also be obtained. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED to the RO for the following actions: 1. Obtain the Veteran's treatment records from the Washington, DC VAMC, dated since July 2010. 2. Arrange for the Veteran to be scheduled for a VA by a physician with sufficient expertise to determine the nature and etiology of all skin disorders, other than seborrheic dermatitis, present during the period of the claim. If feasible, the examination should be performed during an outbreak of the skin condition the Veteran alleges to be chloracne. The claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders must be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner is specifically asked to identify all skin disorders, other than seborrheic dermatitis, that have been present during the pendency of the claim. In particular, the examiner should state whether the Veteran currently has chloracne or has had it during the pendency of the claim and should address whether the manifestations reported by the Veteran (to include outbreaks in the groin area, behind the ears, on the nose and on the back; discharge with blackheads and whiteheads; with drainage; with some dislodged with pressure and others resisting pressure and warm towels) are characteristic of, or consistent with, chloracne. With respect to each skin disorder, other than seborrheic dermatitis, present during the period of the claim, the examiner should provide an opinion as to whether it is at least as likely as not (that is, a probability of 50 percent or greater) that the disorder had its onset during active service or is related to any in-service disease, event, or injury, to include the Veteran's presumed exposure to herbicides. The examiner is also asked to specifically discuss whether it is at least as likely as not (that is, a probability of 50 percent or greater) that any previously diagnosed skin disorder, to include alopecia, folliculitis, dermatitis and verruca/warts, had its onset during active service or is related to any in-service disease, event, or injury, to include the Veteran's presumed exposure to herbicides. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached. 3. Arrange for the Veteran to be scheduled for an appropriate VA examination to determine the current severity of his service-connected residuals of head trauma. The claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders should be made available to and reviewed by the examiner. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner is specifically requested to complete a hearing loss and tinnitus questionnaire (focusing only on tinnitus as service-connection is already in effect for bilateral hearing loss) and a loss of sense of smell and taste questionnaire. The examiner is also specifically requested to discuss whether any noted impairments, to include those noted during the May 2012 VA examination, are due solely to the Veteran's service-connected head trauma or whether some or all of the impairments may be due to his service-connected PTSD. The examiner must note if it is not possible to differentiate between the two disabilities. 4. Undertake any other indicated development. 5. Finally, readjudicate the claims, with consideration of all evidence obtained since the claims were certified to the Board in June 2012 and consideration of the diagnostic criteria pertaining to TBI in effect prior to, and since, October 23, 2008. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be provided a supplemental statement of the case and given the requisite opportunity to respond, before the case is returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). _________________________________________________ Shane A. Durkin 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).