Citation Nr: 1305947 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 10-15 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a compensable disability rating for service-connected acne vulgaris, diagnosed as chloracne (hereinafter, skin disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to January 1971. This appeal to the Board of Veterans' Appeals (Board) is from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the Veteran's claim of entitlement to a compensable disability rating for his service-connected skin disability. In September 2011, the Veteran testified via videoconference before the undersigned Veterans Law Judge, seated at the Board's Central Office in Washington, D.C. A transcript of the hearing has been associated with the claims file. The Board notes here that while the Veteran's spouse accompanied the Veteran and observed the Board hearing, she did not offer any testimony on the Veteran's behalf. In a June 2009 statement, the Veteran asserted that his service-connected skin disability caused him embarrassment and shame, and that such has had an impact on his mental health, including his self-esteem and confidence. At the time of his Board hearing, the Veteran reported that he had cysts in his kidney and that he did not know if such were part of his service-connected skin disability. Additionally, at his September 2011 hearing the Veteran indicated that a medicinal ointment prescribed to treat his service-connected skin disability has damaged his clothes. The Board considers such as claims of entitlement to service connection for an acquired psychiatric disability and a kidney disability, to include as secondary to a service-connected skin disability, as well as entitlement to an annual clothing allowance. These additional claims have thus been raised by the record, but have not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). Therefore, since the Board does not have jurisdiction over these claims, they are referred to the RO for appropriate development and consideration. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO). 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 Additional development is needed prior to further disposition of the claim. As a preliminary matter, the Board notes that the Veteran's most recent VA treatment records associated with the claims file, considering both the physical claims file and Virtual VA, are dated in January 2011. There is no evidence that the Veteran has ceased VA treatment. Because VA is on notice that there are additional records that may be applicable to the Veteran's claim and because these records may be of use in deciding the claim, these records are relevant and should be obtained. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Further, the Board notes that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). While it appears that such benefits are related to a back injury, it is possible that treatment records maintained by the SSA contain evidence relevant to the current appeal. Although generally VA is not bound by that determination, it is pertinent to the claim. Murinczak v. Derwinski, 2 Vet. App. 363, 370 (1992). Because the SSA's decision and the records upon which the agency based its determination may be relevant to VA's adjudication of his pending claims, VA is obliged to attempt to obtain and consider those records. 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012); see also Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). At the time of his Board hearing, the Veteran asserted that his service-connected skin disability had worsened since the time of his last VA examination, conducted by a private provider, in July 2009, more than three years prior. He reported that he had several cysts and scarring on his neck, back, chest, testicles, buttocks, and right shoulder. He complained that such were painful to palpation and when expressed, released green material, but grew back. He complained that he ruined a number of shirts due to the cysts bursting or the use of topical ointments. He also asserted that the VA examination was inadequate, in that the examiner did not properly measure the body surface involved. He reported that on the way out of the office, he had to remove articles of clothing and point out areas of concern to the examiner. The Veteran asserted that he would not present again for examination with the same provider. When available evidence is too old for an adequate evaluation of a Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). See also Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (wherein the United States Court of Appeals for Veterans Claims (Court) held that, when a Veteran claims that a disability is worse than when originally rated, or last examined by VA, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination). See, too, Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see, as well, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). See also VAOPGCPREC 11-95 (April 7, 1995) and Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran therefore needs to be reexamined to reassess the severity of his service-connected skin disability. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran's treatment records maintained by the VA Medical Center (VAMC) in Fayetteville, Arkansas, from January 2011 to the present. If a negative response is received from any VA facility, the Veteran must be duly notified and provided an opportunity to submit such records. 2. Obtain and associate with the claims file all relevant records related to the Veteran's SSA disability benefits claim, to include any treatment records upon which SSA based its decision. Any and all responses, including negative responses, from the SSA must be added to the claims file. If a negative response is received from the SSA, the Veteran must be duly notified and provided an opportunity to submit such records. 3. Schedule the Veteran for an examination with an appropriate examiner, but not the examiner who was contracted to conduct the July 2009 VA examination, to determine the current severity of his service-connected skin disability. The examiner should note all relevant pathology, including any disabling effects on any body part, and all indicated tests should be conducted. Photographs should be included in the examination report. (a) The examiner must specifically comment upon any scars related to the Veteran's skin disability, and describe such in complete detail. (b) The examiner must specifically comment upon the percentage of the entire body and exposed areas affected by the Veteran's skin disability. (c) The examiner should comment on whether the Veteran's skin disability requires the use of systemic therapy such as corticosteroids or other immunosuppressive drugs. If so, the frequency of use should be indicated. The claims file, to include a copy of this remand, should be made available to the examiner for review in conjunction with the opinion or examination, and the examiner should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. The claims file must be properly documented regarding any notifications to the Veteran as to the scheduled examination. 4. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claim, considering any additional evidence added to the record. If the action remains adverse to the Veteran, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC) and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by not attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). _________________________________________________ K. PARAKKAL 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).