Citation Nr: 1306117 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-00 060A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a skin disorder. 2. Entitlement to service connection for chest pain, claimed as secondary to depressive disorder. 3. Entitlement to service connection for diabetes mellitus, claimed as secondary to depressive disorder. 4. Entitlement to a disability rating greater than 30 percent for depressive disorder with generalized anxiety. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from July 1980 to April 1983. These matters come before the Board of Veterans' Appeals (Board) from RO decisions of August 2005 and December 2006. The Veteran provided sworn testimony during a videoconference hearing in November 2012 before the undersigned Veterans Law Judge. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action on his part is required. REMAND Prior to resolution of these appellate matters, further evidentiary development is required. Initially, the Board observes that the Veteran reports having received VA medical care since 1987. Any VA medical records are deemed to be constructively of record in proceedings before the Board and should be obtained prior to further review of the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). In a 1994 document, he reported receiving VA medical care at the VA Medical Center in Washington, DC, beginning in 1987. He also reported that he had recently relocated to Louisiana. A request at that time to the Medical Center in Washington, DC, yielded the response that all records had been transferred to the Medical Center in Alexandria, Louisiana. The claims file currently contains a single medical record dated in 1987 and generated in Washington, DC. In February 1996, the RO performed a review of the matter and concluded that the 1987 record in fact reflected the bulk of the VA treatment provided to the Veteran by the VA Medical Center in Washington, DC. The RO provided a letter to this effect to the Veteran. In a January 1996 letter, however, he indicated that he recalled having been treated there several times. Current law requires that VA will make as many requests as are necessary to obtain relevant records from a Federal department, and that VA will end its efforts to obtain such records only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal department advises VA that the requested records do not exist or that the custodian does not have them. 38 C.F.R. § 3.159(c). Under these circumstances, the Board deems that another effort to obtain early VA treatment records is warranted. Similarly, a complete record of the Veteran's VA medical care after he relocated to Louisiana is required by law. At this point, although his VA claims file contains a large volume of VA medical records, both in paper form, and electronically, these records remain incomplete. No records reflecting the Veteran's physical and mental condition between February 1995 and August 1998 are available for review. From December 1999 to November 2004, there is another gap in available records. Also missing from the file are records reflecting treatment provided between December 2006 and December 2007. Additionally, his recent medical records should be updated for the file. During the November 2012 hearing on appeal, the Veteran testified that he had been seeing one particular doctor at a private medical clinic for the past three or four years, and that he had seen another doctor at the same clinic prior to that point. There was discussion and explanation during the hearing as to the helpful nature of actual treatment records, and the Veteran indicated that he would attempt to obtain those records to submit them to VA. He has not done so, however. Therefore, it is the opinion of the Board that another attempt is unavoidable upon remand. Governing regulation provides that reasonable attempts will be made to obtain records not in the custody of the federal government. Such efforts generally will consist of an initial request for the records, and if no records are received, at least one follow-up request, unless it appears that the records do not exist or that a follow-up request would be futile. 38 C.F.R. § 3.159(c). The Veteran has submitted a letter from the Social Security Administration showing a grant of benefits in 2002. The RO has not requested the complete file from SSA, which may contain additional relevant evidence. The Veteran's VA medical records contain several references to the Veteran's participation in Compensated Work Therapy and/or VA-sponsored vocational rehabilitation. These records could be particularly relevant to the Veteran's claim for an increased disability rating for his psychiatric disability. Therefore they should be obtained upon remand, as well. After a complete evidentiary record has been obtained, additional medical opinion is necessary as well: Skin disorder According to the report of a general medical examination conducted in November 1980, shortly after the Veteran's induction into service, his skin was considered to have been normal upon clinical examination at that time, although the Veteran reported that he had had a facial rash in August 1980 which had cleared with topical medication. His service treatment records reflect that he had difficulty with ingrown hairs on his face related to shaving during service. He was given permission to shave weekly. A single service treatment record also reflects that he had acne vulgaris affecting his face. He was instructed to follow regular skin care with appropriate soap and to return to the health clinic if the problem did not clear up. There are no further records indicating a return visit. He underwent a general medical examination in conjunction with his separation from service in April 1983. The Veteran reported a history of acne during the summertime, without signs of infection. Again, however, his skin was considered to have been normal upon clinical examination. Review of the Veteran's recent VA treatment reports reveals a diagnosis of seborrheic dermatitis in September 2006 and the prescription of medication in which the Veteran was instructed to soak the affected area of his face and a cream for application to the face. There are no further indications of a facial rash in his recent VA treatment reports. However, because these records demonstrate the presence of a skin disorder involving the same body part as the Veteran's skin problems in service, they serve to demonstrate a current disability for purposes of a VA claim. The requirement that a claimant have a current disability before service connection may be awarded for that disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, the Board finds that after a complete evidentiary record has been obtained, an informed medical opinion as to any possible relationship between the dermatitis shown in 2006 and the acne and ingrown hairs in service is necessary. Chest pain and diabetes The Veteran contends that his chest pain and diabetes is proximately caused by or aggravated by his service-connected depression with anxiety. Pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.310, when aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran has submitted a June 2012 private doctor's statement to the effect that his depression has affected his "other comorbidities." For example his depression affects his diet which affects the control of his diabetes. The Veteran additionally testified that depression causes him to overeat and not exercise. Upon remand, therefore, an informed medical opinion should be obtained based upon review of the Veteran's complete medical records as to the medical relationship between his depression with anxiety and his diabetes and chest pain. Depressive disorder with anxiety After a complete evidentiary record has been obtained reflecting the Veteran's mental health during the time frame at issue, from 2004 until the present, additional medical review as to his increased rating claim should be accomplished as well. As the Veteran has expressed in writing and during hearing testimony strong feelings to the effect that he believes the examiner who has conducted the previous three VA psychological examinations has a bias against him, if feasible, the RO should attempt to schedule the examination with a different examiner. If it is not feasible to provide a different examiner, the Veteran is informed that VA adjudicators will take his concerns into consideration, and he is advised to cooperate fully with the examiner so as to provide adjudicators with a well-informed report as to his psychological functioning. Accordingly, the case is REMANDED for the following action: 1. The RO should request all records of VA medical treatment afforded to the Veteran by the Washington, DC, Medical Center and all related clinics from 1987 to 1994. All archived records should be retrieved. Efforts to obtain these records should be continued until the custodian of the records advises that the requested records do not exist or that the custodian does not have them. All efforts to obtain these records should be fully documented for the claims file to facilitate appellate review. 2. The RO should obtain all records of VA medical treatment afforded to the Veteran by the Alexandria VA Medical Center and all related clinics between February 1995 and August 1998, December 1999 and November 2004, December 2006 and December 2007, and from January 2012 to the present, for inclusion in the file. Efforts to obtain these records should be continued until the custodian of the records advises that the requested records do not exist or that the custodian does not have them. All efforts to obtain these records should be fully documented for the claims file to facilitate appellate review. 3. The RO should request the Veteran's complete file from the Social Security Administration, to include all medical records. Efforts to obtain these records should be continued until the custodian of the records advises that the requested records do not exist or that the custodian does not have them. All efforts to obtain these records should be fully documented for the claims file to facilitate appellate review. 4. After securing the necessary release, the RO should obtain all medical records pertaining to the Veteran from Evangeline Primary Care. If the records are not obtained, inform the Veteran of that fact and give him an opportunity to obtain the records and submit them to VA. 5. The RO should obtain all VA files pertaining to vocational rehabilitation and/or compensated work therapy in which the Veteran has participated since 2005 for association with his claims file. 6. After obtaining all available records pursuant to the above requests, schedule the Veteran for a skin examination, to obtain an opinion as to whether the seborrheic dermatitis noted in 2006 or any skin disorder currently shown is more, less, or equally likely to be related in any way to the acne and ingrown hairs which the Veteran experienced during service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 7. After obtaining all available records pursuant to the above requests, provide the Veteran's claims file, including any electronically-stored virtual records, to a VA medical professional, to obtain an opinion as to the interrelationship between the Veteran's chest pain, his diabetes, and his service-connected depressive disorder with anxiety. In particular, the reviewer is requested to form an opinion as to whether it is more, less, or equally likely that the Veteran's depressive disorder proximately caused his chest pain and/or his diabetes. Next, the reviewer is requested to form an opinion as to whether it is more, less, or equally likely that the Veteran's depressive disorder aggravated his chest pain and/or his diabetes. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the reviewer should so state and explain why an opinion cannot be provided without resort to speculation. IF the reviewer deems that additional tests or studies, or a clinical examination of the Veteran would be helpful, the RO should arrange for such tests, studies, and/or examination. 8. After obtaining all available records pursuant to the above requests, schedule the Veteran for a VA psychiatric examination to identify his current level of functioning related to his service-connected depressive disorder with anxiety. If feasible, the RO should attempt to schedule the examination with a different examiner than previously (M.R.). The claims folder, including all records received pursuant to the above requests, and all electronically-stored records must be made available to the examiner for review before the examination. All tests and studies deemed helpful by the examiner should be conducted in conjunction with the examination. In particular, all mental health records pertaining to the time frame from 2004 until the present should be reviewed by the examiner. The examiner is requested to provide a discussion as to the Veteran's impairment and functioning related to depressive disorder with anxiety from 2004 until the present. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 9. After the development requested above has been completed, to the extent possible, the RO should again review the record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond. 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 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).