Citation Nr: 1309671 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 09-35 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a dermatological disorder, to include a skin rash. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant had active service from March 1970 to February 1972. This matter comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Newark, New Jersey. The issues appealed included entitlement to service connection for bilateral hearing loss, tinnitus, and a skin disability. The issues on appeal had also included entitlement to service connection for posttraumatic stress disorder (PTSD). However, during the pendency of this appeal, by a rating action dated in July 2011, service connection for PTSD was granted. As this represents a complete grant of the benefit sought on appeal, that issue is no longer before the Board. Subsequent to his perfection of his appeal, the appellant requested and was scheduled for a hearing before a Veterans Law Judge at the local Regional Office in June 2012. He failed to report for this hearing and, since that time, has not indicated that he wished to testify at another hearing. The Board, therefore, finds that he has withdrawn the request to testify before the Board. 38 C.F.R. § 20.704 (2012). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the appellant's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the remaining issue on appeal. In November 2012, the Board issued a Decision/Remand. In that action, the Board denied the appellant's claim for entitlement to service connection for bilateral hearing loss and tinnitus. The third issue, that involving a dermatological disorder, was returned to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The claim has since been returned to the Board for review. Regrettably, the appeal is once again REMANDED to the RO via the AMC. VA will notify the appellant if further action is required. REMAND As a result of the November 2012 Remand, the appellant was scheduled for a VA Skin Examination. Such an examination was accomplished in December 2012. The examiner was instructed to determine the nature and etiology of any identified skin disability. The examiner was also asked to opine whether any current skin disorder had its onset during active service or was related to any inservice disease, event, or injury, to include the appellant's inservice episode of a skin rash. Additionally, the examiner was ordered to accept as credible the appellant's reports concerning chronicity and continuity of symptomatology. The December 2012 examiner's reponses are deemed inadequate. He indicated that the appellant had multiple hyperpigmented raised lesions on the upper back upon examination. However, he did not provide any opinion of etiology as to those lesions. Moreover, regarding the seborrheic keratosis, the examiner noted: Veteran has no skin rash at present. Seborrheic keratosis is not a presumption condition of Agent Orange exposure and is not related to military service. This skin condition is also called as [sic] age sports and etiology is undetermined. The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. . . . Veteran had skin rash in service in left arm and he says he has no rash at present. Veteran had seborrheic keratosis removed in 2008 and it is not a presumptive of Agent Orange exposure and was not present in service and is less likely related to military service. To be adequate, the examiner must provide more than simply state that the etiology of a particular condition unknown. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Rather, the examiner must conclusively determine whether there is any link between the in-service skin rash and any dermatological disorder the appellant may now suffer therefrom or has suffered therefrom during the entire appeals period. Moreover, a sufficient rationale and supporting explanation must be provided that addresses such matters as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and whether the question is so outside the norm of practice that it is really impossible for the examiner to use his or her medical expertise and training to render an opinion. See also Jones v. Shinseki, 23 Vet. App. 382 (2010) (the Court held that in order to rely on a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or be apparent upon a review of the record.) See Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Thus, upon reviewing the medical examination report, the Board finds that the examination is inadequate and as such, the AMC failed to comply with the duty to obtain the requisite medical information necessary to make a decision on the appellant's claim. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Since the record fails to provide to the Board the necessary information needed in making a determination as to whether the appellant is now actually suffering from the claimed disability and the etiology of said disorder, the record must be returned to the AMC so that additional medical testing may be accomplished and complete diagnoses obtained. To do otherwise would be prejudicial to the appellant and would be a breach of the VA's duty to assist an appellant with his claim before it. Accordingly, further appellate consideration will be deferred and the case is REMANDED to the AMC for the following development: 1. The AMC should request that the appellant provide any additional relevant medical records pertaining to any skin conditions that are not already of record or sufficient information that would allow the AMC to request the records. Then, the AMC should contact the named health care providers, provided that the appellant has provided the signed authorizations for release to the VA of private medical records in connection with each non-VA source identified. All records obtained should be added to the claims folder. If requests for any private treatment records are not successful, the AMC should inform the appellant of the nonresponse so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. 38 C.F.R. § 3.159 (2012). 2. The AMC should specifically obtain and include in the claims folder the appellant's VA medical treatment records, reports, and laboratory findings for the period starting January 1, 2011, to the present. If the VA records for this time period does not exist, the AMC should specifically note this in the record and notify the appellant pursuant to 38 C.F.R. § 3.159(e) (2012). 3. After the development above has been completed, the AMC should schedule the appellant for an examination in order to determine the etiology and nature of any skin disability the appellant now suffers therefrom or has suffered therefrom at some time during the appeal period. Specifically, the examination should be accomplished so that a determination may be made as to whether the appellant now suffers from a skin disability and if so, whether that condition began in or was caused by or the result of his military service. The examination must be conducted by a physician; i.e., not a nurse practitioner, physicians' assistant, nurse, doctor of osteopathy, etcetera, in light of the issue involved. The examiner should be provided with the appellant's claims folder and a copy of this Remand and should review the appellant's medical history. The examiner should indicate in the examination report that the claims folder was reviewed. Again, any tests and studies deemed necessary should be accomplished at this time. The examiner should render an opinion as to whether it is at least as likely as not that any identified skin disorder began in service or is otherwise related to his service. The examiner should further comment on whether the appellant's in-service skin rash was a manifestation of a skin disorder from which the appellant now suffers therefrom or has suffered therefrom during the course of the appeal. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should not invoke the phrase "without resort to mere speculation" without first explaining the basis for such an opinion. That is, if the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination, for example, does the examiner lack the expertise to render such an opinion, or is some additional testing or information needed, and possibly available, that would permit an opinion. If so, a qualified examiner should provide an opinion and/or the additional testing should be accomplished. If the examiner cannot provide an opinion because it cannot be determined from current medical knowledge whether a specific in-service injury or disease can possibly cause the claimed condition, or the actual cause cannot be selected from multiple potential causes, this should be fully explained. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). As stated, the medical examiner must provide a comprehensive report including rationales for all opinions and conclusions, citing the objective medical findings leading to each examiner's conclusions. In the doctor's report, the examiner must specifically discuss the appellant's contentions concerning chronicity of symptoms since service along with any additional information contained in the claims file. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). Additionally, if the examiner concludes that the appellant's claimed or purported skin disorder is not service-related, he or she must explain in detail the reasoning behind this determination. The results proffered by the examiner must reference the complete claims file and any inconsistent past diagnoses given. Finally, it is requested that the results be written in complete noun/verb sentences using the Queen's English, be typed or legibly written, and included in the claims file for review. 4. The AMC should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the requested report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the reports must be returned for corrective action. 38 C.F.R. § 4.2 (2012); see also Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, the AMC should readjudicate the issue on appeal. If the benefits sought on appeal remain denied, the appellant and his accredited representative (National Association of County Veterans Service Officers) must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The appellant need take no action unless otherwise notified. 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 appellant is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). _________________________________________________ ERIC S. LEBOFF 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).