Citation Nr: 1306268 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-44 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for skin disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife. ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1951 to January 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which, in relevant part, denied the benefit sought on appeal. The Veteran and his wife, B. B., testified at a hearing before the undersigned in April 2012. A transcript of that hearing is of record. Although the Veteran additionally perfected an appeal with respect to the denial of other service connection claims that had been denied in the December 2008 rating decision, a subsequent rating decision issued in November 2011 granted claims for service connection for posttraumatic stress disorder (PTSD), for a shrapnel wound of the posterior scalp, and for shrapnel wounds to the upper chest, hands, and upper back. Thus, the November 2011 rating decision constituted a full grant of the benefits sought on appeal with respect to the other claims that had been denied in the December 2008 rating decision. The Veteran's representative confirmed during the April 2012 Board hearing that the November 2011 rating decision satisfied the Veteran's claim for shrapnel wounds of the feet. Therefore, the only remaining issue on appeal is that of entitlement to service connection for a skin disability, as indicated on the title page. In June 2012, the Board remanded the Veteran's skin disability claim on appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. For the reasons described below, this claim is again REMANDED to the RO via the AMC. VA will notify the Veteran if further action is required on his part. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the further delay, it is necessary to pursue still further development to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. In its June 2012 remand of this appeal, the Board was primarily concerned with affording the Veteran a VA skin examination to determine the nature and etiology of his claimed skin disability of the hands, feet, and back. The Board noted in the remand that the Veteran's VA treatment records dated between March 2008 and August 2011 revealed that he had been treated for and diagnosed with multiple skin disabilities, including, verruca vulgaris of the left hand; painful burning in the bilateral feet, purportedly as a result of standing in cold water for hours at a time during his service; chronic dermatitis of the back; neuralgia versus residuals of frostbite of the feet; dry hands; and thickened toenails. In remanding the claim, the Board additionally noted that the Veteran's service treatment records (STRs) were unavailable and that per communications from the National Personnel Records Center (NPRC), his STRs had likely been destroyed in a fire at the NPRC in July 1973. The claims file, nonetheless, includes morning reports pertaining to the Veteran's service and includes a history of the 7th Infantry Division, to which the Veteran was apparently assigned, showing service in Korea as described by the Veteran. Additionally, the Veteran repeatedly contended that he served in combat in Korea and that he had been awarded the Combat Infantryman Badge. Service connection has been granted for residuals of shrapnel wounds apparently incurred during his Korean War service. The Veteran was afforded the requested VA skin examination in June 2012. The Veteran apparently reported during the examination that he had an onset of dermatitis while in Korea. The Veteran reported that his skin condition had remained constant since its onset. The examiner noted that treatment over the previous 12 months had included applying lotion; however no corticosteroids or immunosuppressive medications had been used. On examination, the examiner noted a small dry scaly patch in the mid-upper back. The examiner diagnosed the Veteran with chronic atopic dermatitis, and noted that the dermatitis affected a total body area of less than one percent. The examiner then provided the opinion that the Veteran's claimed skin disability was less likely than not incurred in or caused by any claimed in-service injury, event, or illness. The examiner rationalized this opinion by indicating that he did not find any service records for treatment of atopic dermatitis, and that there was no relationship between the Veteran's current skin atopic dermatitis and residuals of cold injury. He finally remarked that there was currently no skin condition involving the hands or feet. Unfortunately, where the VA examiner's opinion with respect to the dermatitis diagnosed during the VA examination, and as diagnosed in the record, is based only on an absence of service treatment records for the condition, the opinion is inadequate for rating purposes. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's reports, but instead relied on an absence of evidence in STRs to provide a negative opinion); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (recognizing lay evidence as potentially competent to support the presence of the claimed disability, including during service, even where not corroborated by contemporaneous medical evidence such as actual treatment records (STRs, etc.)). Moreover, the Board specifically notes that diagnoses for many of the Veteran's other noted dermatological disabilities, i.e., painful burning in the bilateral feet, neuralgia versus residuals of frostbite of the feet, dry hands, and thickened toenails, were made either during the pendency of his appeal or immediately prior to the filing of his claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim). In this regard, the Veteran was assessed with having neuralgia versus residuals of bilateral frostbite in June 2006. He complained at that time of having painful burning in the bilateral feet and indicated that he was in cold water for many hours during combat. He reported that he had suffered from that pain for many years. In August 2008, he reported having dry hands and that his right hand felt like sand. In October 2009, he again reported having ankle and foot burning and attributed to having "frozen foot" while he was stationed in Korea. In October 2009, he was noted to have bilateral foot swelling. He reported that the condition had been present for many years, but had just recently worsened. He indicated that he needed more cream for his feet. He again reported having swelling in the skin of his feet in October 2009. He has additionally been noted to have active prescriptions for Capsaicin cream, Absorbase cream, and Triamcinolone cream during the pendency of his appeal. As recently as in an April 2011 VA mental health outpatient note, the Veteran was noted to have incurred freeze burns in his feet during his service in Korea which were noted to still be painful. Additionally, the Veteran specifically testified during his April 2012 Board hearing that he had suffered from symptoms of skin disability of his hands, feet, and back within about a year of his separation from service, and that he has continually suffered from these symptoms since that time. His wife testified that his toes were especially bad and that she had to continually apply topical treatment to his toes. Accordingly, the Board finds that this matter must again be remanded in order for the Veteran to be afforded a new and contemporaneous VA examination to determine the nature and etiology of his claimed skin disabilities, to include all skin disabilities diagnosed during the pendency of his appeal. See 38 C.F.R. § 4.2 (2012) (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced). In remanding this issue, the Board specifically notes that the Veteran is competent to report an onset of skin problems during or immediately after his separation from service and he is competent to report a continuity of symptomatology of skin problems since. See Washington v. Nicholson, 19 Vet. App. 363 (2005). In determining whether service connection is warranted for a claim, the Board is primarily concerned with whether there is a continuity of symptoms since the incurrence of a claimed injury or disease in service, rather than with a continuity of treatment. See 38 C.F.R. § 3.303(b) (2012). Therefore, on remand, the VA examiner should recognize this lay evidence as potentially competent to support the presence of disability even where it is not corroborated by contemporaneous medical evidence. Moreover, given the Veteran's record of likely combat, the provisions of 38 U.S.C.A. § 1154(b) are potentially applicable in this case. Those provisions create a presumption that a combat Veteran's reports of injuries sustained in combat are correct. Those provisions apply to an injury and the in-service consequences of that injury. Reeves v Shinseki, 682 F.3d 988 (Fed. Cir. 2012). Thus, for purposes of this remand, where the Veteran credibly reported suffering cold injuries to his hands and feet during combat, his incurrence of those injuries is to be presumed. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. Schedule the Veteran for a new VA dermatological examination. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The VA examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner should diagnose and describe all skin or related disabilities of the Veteran's hands, feet, and back found to be present, to include dermatitis, verruca vulgaris of the left hand, painful burning in the feet, residuals of frostbite of the feet, dry hands, and thickened toenails. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any skin or related disability diagnosed during the pendency of the Veteran's appeal (i.e., dermatitis, verruca vulgaris of the left hand, painful burning in the bilateral feet, residuals of frostbite of the feet, dry hands, thickened toenails, etc.) had its clinical onset during the Veteran's active service or is related to any in-service disease, event, or injury. In providing this opinion, the VA examiner is to presume that the Veteran incurred cold injuries to his hands and feet during his service. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In providing this report, the examiner should specifically comment on the medical evidence of record, as well as the Veteran's and his wife's lay testimony regarding the incurrence of these disabilities during or immediately after his separation from service. The examiner must additionally comment on contentions of continuity of symptomatology of any disability since the Veteran's separation from service. 2. Thereafter, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Finally, readjudicate the Veteran's service connection claim on appeal. If his claim remains denied, provide the Veteran and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return his appeal to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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. See 38 C.F.R. § 20.1100(b) (2012).