Citation Nr: 1308728 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 05-13 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a skin disability. 2. Entitlement to service connection for a sinus disability, to include sinusitis and allergic rhinitis. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from May 1963 to May 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in June 2008 for further development. The Veteran presented testimony at a Board hearing in May 2008. A transcript of the hearing is associated with the Veteran's claims folder. The Veterans Law Judge that presided over the hearing is no longer employed by the Board. In June 2011, the Veteran was informed of his right to a new hearing. There was no response from the Veteran. The Board notes that it also remanded the issues of entitlement to service connection for posttraumatic stress disorder (PTSD) and hearing loss. By way of a January 2010 rating decision, the RO granted service connection for both disabilities. The granting of service connection constitutes a complete grant of the claims. Consequently, these issues are not before the Board. In June 2012, the Board reopened and remanded the claims for entitlement to service connection for a skin disability and a sinus disability. The United States Court of Appeals for Veterans Claims (Court) held that a claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) ('It is the pro se claimant who knows that symptoms he is experiencing and that are causing him disability...[and] it is the Secretary who know the provisions of title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission.') A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 2009) (to the effect that, when determining the scope of a claim, the Board must consider 'the claimant description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim'); Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (to the effect that the Board is required to consider all issues raised either by the claimant or the evidence of record); 38 C.F.R. § 3.159(c) (2012). The Veteran filed a claim specifically for entitlement to service connection for a sinus disability, and the RO characterized his claim as one for entitlement to service connection for sinusitis. However, as the record reflects that he has also been diagnosed with allergic rhinitis, the Board has revised his claim as is noted on the first page of this decision. 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 In its June 2012 remand, the Board noted that VA examinations were warranted to determine whether it was at least as likely as not that the Veteran's skin disability began during or was causally related to service, to include exposure to herbicides (Agent Orange), and to determine whether it was at least as likely as not that the Veteran's sinus disability began during or was causally related to service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was provided with VA examinations in August 2012; however, for the following reasons, the Board finds that additional development is warranted to properly address the Veteran's claims. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). With regard to the Veteran's claim for entitlement to service connection for a skin disability, the examiner was required to include in her opinion whether the Veteran's skin disorder began during or is causally related to service. The examiner noted that the Veteran has urticaria and tinea cruris, facial hyperpigmentation and nevus which were all diagnosed during service. She provided the opinion that his it was less likely as not that the Veteran's skin conditions were incurred in or caused by his experience in the military, and noted that there was no research that associated any of the Veteran's specific skin conditions with Agent Orange exposure. However, it is unclear from this opinion what current skin disorders were found on examination. In addition, the examiner did not provide a rationale for her opinion that none of the Veteran's skin disorders were related directly to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). The Court of Veterans Appeals has found that the current disability requirement 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, even if the disability resolves prior to adjudication of the claim. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). The evidence of record reflects that, in January 2008, the Veteran was diagnosed with post inflammatory hyperpigmentation, pruritus scroti, lipoma at the mid spine, and lipoma on the right arm. As such, an addendum is needed in order for the examiner to opine as to whether any of the Veteran's skin disorder found over the appeals period-since March 2005-are related to service and for the examiner to provide a detailed analysis and rationale for any opinion expressed. With regard to the examination provided for the Veteran's claim for entitlement to service connection for a sinus disability, the examiner opined that it was less likely as not that the Veteran had a sinus problem, or that the problem was incurred on active duty. The examiner noted that X-rays of the sinus were negative, and that physical examination did not show any signs of a chronic sinus problem. She concluded that the Veteran did not have a chronic sinus disorder. However, the evidence of record reflects ongoing treatment for sinus problems, and diagnoses of sinusitis in March, April and July 2004 treatment and by sinus computed tomography computed tomography (CT) scan in September 2004, chronic rhinosinusitis in January 2005, and allergic rhinitis in April 2005. The examiner did not address the evidence in the record reflecting that he has been diagnosed with sinusitis throughout the appeals period. The Board notes here that, as the Veteran submitted new and material evidence within one year of the February 2004 rating decision initially denying entitlement to service connection for sinusitis, this decision did not become final. Therefore, the appeals period for this issue begins in November 2003, when the Veteran filed his initial claim for entitlement to service connection for a sinus disorder. As such, an addendum opinion is needed for the examiner to review the record and provide an opinion as to whether any respiratory disorder diagnosed over the appeals period, to include sinusitis and allergic rhinitis, is related to service. Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file should be provided to a VA examiner to review the record and provide an opinion as to the etiology of any skin disorder diagnosed since March 2005. All indicated tests and studies should be conducted. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any of the Veteran's skin disorders diagnosed since March 2005, including but not limited to post inflammatory hyperpigmentation, pruritus scroti, lipoma at the mid spine, and lipoma on the right arm , diagnosed in January 2008, was caused by or is etiologically related to any incident of active duty, to include as due to exposure to Agent Orange. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 2. The Veteran's claims file should be provided to a VA examiner to review the record and provide an opinion as to the etiology of any respiratory disorder, to include sinusitis and allergic rhinitis diagnosed since November 2003. All indicated tests and studies should be conducted. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any of the Veteran's any respiratory disorders, to include sinusitis and allergic rhinitis diagnosed since November 2003 was caused by or is etiologically related to any incident of active duty. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 3. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ J. A. MARKEY 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).