Citation Nr: 1306104 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 96-44 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 10 percent for atopic dermatitis. 2. Entitlement to service connection for dyshidrotic eczema. 3. Entitlement to service connection for chronic urticaria. 4. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from October 1974 to July 1976. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from June 1996 and December 1997 rating decisions of the Montgomery, Alabama, Regional Office (RO). The June 1996 rating decision continued a 10 rating for atopic dermatitis. The December 1997 rating decision, in pertinent part, denied service connection for chronic urticaria and dyshidrotic eczema and denied the claim for a TDIU. This matter was previously before the Board in November 1998, April 2001, July 2003, April 2009, and April 2011. The issues of service connection for chronic urticaria; an increased evaluation for atopic dermatitis and the claim for a TDIU are remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on her part. FINDING OF FACT A current diagnosis of dyshidrotic eczema has been related to service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, dyshidrotic eczema was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2012). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disorder and the post-service symptomatology. Clyburn v. West, 12 Vet. App. 296, 302 (1999). "Competent medical evidence" means that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). "Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Unfortunately, the Veteran's original claims folder was and numerous attempts have been made to rebuild the claims folder, which have met with limited success. Hence, there is a heightened obligation for VA to assist her in the development of her claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). During the course of the appeal, the Veteran reported for VA examinations in June 1996, September 1997, and December 2002, with the December 2002 VA examiner providing an addendum in February 2003. She failed to report for VA examinations scheduled in February 2009, July 2010, and December 2012. In accordance with § 3.655, as this is an original claim, the decision will be based upon the evidence of record. The private and VA treatment records reveal that the Veteran was treated for numerous skin problems throughout the 1980's and 1990's, including treatment for dyshidrotic eczema. In a September 1997 VA examination report, the examiner noted that atopic dermatitis was very likely considering the Veteran's strong history of asthma and allergy. His impression, however, was more of dyshidrotic eczema of the hands and feet, but indicated that this was a completely different entity and not the diagnosis for which she sought increased compensation. He noted that while he could not remove her history of atopic dermatitis, this could be very likely something she had in the past and she had at a minimum at least dyshidrotic eczema. In a March 2004 letter, the Veteran's private dermatologist stated that he had been caring for the Veteran for the past several years for a variety of cutaneous complaints. He stated that these included atopic dermatitis, chronic urticaria, dyshidrotic eczema, and photosensitivity. It was his impression that dyshidrotic eczema and atopic dermatitis were both manifestations of cutaneous illnesses, which were related to the disability she received from the Navy. As noted above, the Veteran's service treatment records are missing; however, service connection is currently in effect for atopic dermatitis, indicating that she had at least some skin problems in service. Both the VA examiner and the Veteran's private dermatologist have diagnosed her with dyshidrotic eczema. Moreover, her private physician has indicated that the atopic dermatitis and dyshidrotic eczema were cutaneous illness which are related to her period of service. Resolving reasonable doubt in favor of the Veteran, service connection is warranted for dyshidrotic eczema and the appeal is granted. ORDER Service connection for dyshidrotic eczema is granted. REMAND As it relates to the Veteran's claim for service connection for chronic urticaria, the Board notes that while she has recently failed to appear for several VA examinations, she did report for several others in conjunction with the claim, with the examiners not rendering the requested opinions at the time of those examinations. The Board further observes that as part of the rebuilt folder process, numerous treatment records, both private and VA, have been added to the claims folder. To date, a definitive opinion as to the etiology of her chronic urticaria, or any other skin disorder for which service connection is not currently in effect, has not been obtained. In light of the above, the claims folder should be furnished to a VA examiner, preferably a dermatologist, with the examiner, following a review of the claims folder, rendering an opinion as to the etiology of the Veteran's chronic urticaria, or any other diagnosed skin disorder for which service connection is not in effect, and its relationship, if any, to her period of service. The Board also finds the issues of an increased evaluation and a TDIU are affected by the Board's grant of service connection for dyshidrotic eczema, in that the Veteran's disability evaluation for her current skin disorders may increase, and in that the RO has not had the opportunity to rate the newly granted service-connected dyshidrotic eczema, which now must be addressed as part of the claim for a TDIU. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following actions: 1. Refer the claims folder to a VA examiner, preferably a VA dermatologist, to determine the nature and etiology of any chronic urticaria, or any other skin disorder for which service connection is not currently in effect. Following a complete review of the claims folder, the reviewer is requested to render an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's chronic urticaria, or any other skin disorder for which service connection is not currently in effect, is related to her period of service. If not, the reviewer is requested to render an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's chronic urticaria, or any other skin disorder for which service connection is not in effect, was caused or permanently aggravated by her service-connected atopic dermatitis and/or dyshidrotic eczema. Complete detailed rationale must accompany any opinion that is rendered. 2. Review the claims file. If any development is incomplete, including if the examination report does not contain sufficient information to respond to the questions posed, take corrective action before readjudication. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After undertaking any other development deemed appropriate, readjudicate the remaining claims. If any benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for future review. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs