Citation Nr: 1310900 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 04-41 709A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a nasal/sinus disability, to include rhinitis. 2. Entitlement to service connection for skin irritation, to include as due to an undiagnosed illness or other qualifying chronic disability, pursuant to 38 U.S.C. § 1117. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from February 1982 to February 2002. This matter comes to the Board of Veterans' Appeals (Board) from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This matter was last before the Board in April 2012 at which time it was remanded for further development. 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 April 2012 the Board remanded the present claims to ensure compliance with two prior Remands from the Board, dated in November 2007 and January 2010. The claims were particularly remanded to obtain adequate medical opinions regarding the etiology of the Veteran's sinus/nasal disability, to include rhinitis, and skin irritation. Nonetheless, the directed development has yet to be accomplished. In its January 2010 Remand, the Board found the February 2009 examinations of the Veteran's sinus/nasal disability and skin irritation (obtained pursuant to the November 2007 Board Remand) were deficient as the respective examiners failed to provide etiological opinions regarding the diagnosed disabilities. The Board highlights that the directives in the January 2010 Remand clearly instructed that "[t]he Veteran need not be scheduled for examination unless such an examination is determined necessary by the examiner." In other words, the Board's remand directives instructed that the respective VA examiner was to first review the claims file and if they could not render an opinion without physical examination of the Veteran, then, and only then, was examination to be scheduled. Instead, however, the Veteran was first scheduled for VA medical examinations, which were then cancelled by VA, and the claims were returned to the Board without the requested opinions. In April 2012, the Board again remanded the claims to obtain medical opinions, with specific instructions that the Veteran was only to be physically examined if, and only if, a medical expert stated that they could not provide the requested opinion without physical examination of the Veteran. In a May 2012 letter, the Appeals Management Center (AMC) notified the Veteran that his claims were undergoing additional evidentiary development. The letter noted that the Veteran's claims files had been returned to the Washington, DC VA Medical Center (VAMC) "for an opinion and/or addendum" and that the Veteran did "not need to do anything at this time" and that if additional examination was necessary, he would be notified of the date and time thereof. No documentation of the scheduling or notification of any physical examination appears in the record. Of record are two separate notations from a doctor, P.C.J., M.D., from the Washington DC VAMC. One dated May 21, 2012, states that the "Veteran did not respond to pre-appointment letter or call." Another dated June 15, 2012, states that the "[s]ervice member did not respond to letter or call." A June 22, 2012, record from the AMC appears in the claims files following the two notations from P.C.J., M.D. The record states that "Veteran did not respond to letter or call for exams that were schedule[d] in May and June per [P.C.J., M.D.]" and that the Veteran "needed to have exams done and not opinions given." In a letter dated January 2, 2013, the Veteran related that he had lost faith in the VA process. He noted that he had gone to medical appointments and answered questions for over 12 years. He expressed his frustration with the process and noted that he had tried to contact VA on numerous occasions to have examinations scheduled. He requested a final decision on his claims as soon as possible. In a January 15, 2013, brief, the Veteran's representative requested that the matter again be remanded to ensure compliance with the Board's directives in its prior Remands. The representative noted, saliently, that there was no indication that P.C.J., M.D., or any other medical expert had actually reviewed the claims file and concluded that they could not provide an opinion without a full physical examination of the Veteran. They also noted that there was no documentation in the clams file indicating that the Veteran had ever been notified of the scheduling of any examination. In view of the above, the Board is specifying that after obtaining records of post service treatment for the Veteran's claimed skin and nasal/sinus disabilities, that the Veteran's claims file be sent to dermatological and ENT specialists for medical opinions, based on a review of the medical evidence of record. Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the Veteran to ask him to inform VA if he has received any treatment since discharge from service for his claimed skin and nasal/sinus disabilities. Elicit from the Veteran the appropriate consent to obtain any treatment records regarding his claimed skin and nasal/sinus disabilities. If VA secures the proper consent from the Veteran, then attempt to obtain any treatment records related to the Veteran's claimed skin and nasal/sinus disabilities and associate them with the Veteran's VA claims folder. If any records are not available, inform the Veteran and request that he submit any copies in his possession. 2. When the above action has been accomplished to the extent possible, forward the Veteran's claims file to an ENT physician for review of the claims file for the purpose of determining the etiology of any nasal/sinus disability, to include rhinitis, shown since service. All pertinent symptomatology and findings should be reported in detail. After fully reviewing the Veteran's medical history, which includes service treatment records reflecting treatment for probable sinusitis in September 1992, shows complaints of sinusitis in August 1994, and shows treatment for upper respiratory infections in 2000/2001, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current rhinitis, or any other current sinus or nasal disability established by the record, had its onset during active military service, or is due to or the result of a disease or injury incurred therein. The reviewer should provide a complete rationale for all conclusions reached. 3. When the development in paragraph one above has been accomplished to the extent possible, forward the Veteran's claims file to a dermatologist for review of the claims file for the purpose of determining the etiology of his skin irritation, or any related skin disability shown in the record, to include xerosis. All pertinent symptomatology and findings should be reported in detail. After fully reviewing the Veteran's medical history, which includes service treatment records reflecting treatment for various skin disorders, such as pseudofolliculitis barbae, folliculitis, and acne, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current xerosis, or any other current skin disability established by the record, had its onset during active military service, or is due to or the result of a disease or injury incurred therein. The reviewer should provide a complete rationale for all conclusions reached. 4. Thereafter, review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. If any benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ ROBERT E. P. JONES Acting 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).