Citation Nr: 1315249 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 10-18 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a skin disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from July 1955 to July 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In October 2011, the Veteran testified before the undersigned during a videoconference hearing. A copy of the hearing transcript has been associated with the claims folder. The Board remanded the Veteran's claim for further development in January 2012 and January 2013. The Board's prior remand directives and the subsequent actions of the RO and VA Appeals Management Center (AMC) will be discussed below. The Veteran's claim has been returned to the Board. In January 2013, the Board granted the Veteran's claim to establish service connection for right ear hearing loss. This award was implemented by the AMC in a January 2013 rating decision; a noncompensable (zero percent) evaluation was assigned, effective from May 20, 2009. Since service connection has been granted, the Veteran's appeals as to those issues have become moot. The Veteran has not disagreed with the assigned evaluation or the effective date. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). Therefore, that matter has been resolved and is no longer in appellate status. Additional Note As noted by the Veteran when he filed his initial claim for compensation in June 2009, his first name was misspelled by the Air Force throughout his service. Indeed, the Veteran's available service records reflect that he served under the name listed in the A.K.A. field of the caption. The name used as the primary name in the caption for this document matches the Veteran's correctly-spelled, legal name. 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). The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks entitlement to service connection for a skin disorder. Based on a review of the complete record, the Board finds that additional development is necessary. As noted in the Introduction, the Board remanded the Veteran's skin disorder claim on two prior occasions. Pertinently, in the January 2012 remand, the Board directed the RO/AMC to identify and attempt to obtain outstanding service treatment records, service personnel records, post-service VA and private treatment records, and subsequently, provide the Veteran a VA examination to determine the nature and etiology of any skin disorder identified during the pendency of the appeal. Subsequently, the Veteran's service personnel records were associated with the claims file and the Veteran was provided a NA Form 13055 with a February 2012 notification letter. The Veteran did not submit a completed NA Form 13055. Additionally, the Veteran was asked to submit a completed VA Form 21-4142 for each health care provider from whom he sought treatment. In response, the Veteran submitted release forms for Dr. Gray, Dr. Tardibono, Dr. Garcia, and Dr. Cornelison. Records from Dr. Gray were noted by the Veteran to be destroyed and records from Dr. Garcia and Dr. Cornelison were obtained and associated with the claims file. The private treatment records from Drs. Garcia and Cornelison, dated from May 2009 to June 2011, reflect varying skin diagnoses affecting multiple body parts, to include xerosis on the trunk and upper extremities, nummular eczema craquale on the elbows, left knee, and lower legs, hypopigmentation of the left upper eyelid, pruritis on the scrotum, and vitiligo (location not reported). Thereafter, the Veteran was provided a VA examination in connection with his claim in September 2012. The examination report reflects that, after a review of the claims file and an interview with and physical examination of the Veteran, the examiner rendered a diagnosis of eczema, treated since 1997, and opined that a nexus opinion could not be provided without resorting to mere speculation due to the absence of the service treatment records and the fact that the first medical evidence was dated in the late 1990's. The AMC continued to deny the Veteran's claim in an October 2012 supplemental statement of the case, and the claim was returned to the Board. In the January 2013 remand, the Board noted the AMC's prior actions, the Veteran's partial response to requests for information, and the opinion of the September 2012 VA examiner. Ultimately, the Board directed that a follow-up request for private treatment records from Dr. Tardibono must be undertaken in order to fulfill VA's duty to assist the Veteran under 38 C.F.R. § 3.159(c), as the physician did not respond to the first request for records. In February 2013, the AMC sent a second request for treatment records to Dr. Tardibono. As there was no response for 30 days, the AMC continued to deny the Veteran's claim in a March 2013 supplemental statement of the case. After issuance of the March 2013 supplemental statement of the case, the AMC received one record from Dr. Tardibono; however, review of this record, a March 2013 audiogram, reveals that it is not relevant to the present claim. The Veteran's claim was, again, returned to the Board. Although the Board found in the January 2013 remand that the speculative opinion provided by the September 2012 VA examiner was adequate because of the United States Court of Appeals for Veterans Claims' (the Court's) holding in Jones v. Shinseki, 23 Vet. App. 382, 390 (2010), after further review of the totality of the evidence, the Board concludes that the September 2012 VA examination report is inadequate for the purpose of adjudicating the Veteran's claim. Specifically, the VA examiner stated that private treatment records reflected that the Veteran was diagnosed with eczema since 1997. However, a VA hospitalization discharge summary reflects that the Veteran was prescribed medicated shampoo for treatment of tinea versicolor in April 1978. In light of this evidence, it appears that the speculative September 2012 nexus opinion, stating that the Veteran was first diagnosed with a skin disorder in 1997, was based on an inaccurate factual premise. Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). The Court has held that such opinions are inadequate for the purpose of adjudicating a claim to establish service connection. Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 5 Vet. App. 177, 180 (1993). Further, in addition to eczema, which was the only skin disorder noted in the September 2012 VA examination report, the Veteran has been diagnosed with xerosis, hypopigmentation, pruritis, and vitiligo during the pendency of his appeal. The Court has held that, to be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). With the Court's holding in McClain in mind, the Board concludes that the September 2012 VA examination is inadequate for the purpose of adjudicating the Veteran's claim because the examiner did not address the etiology of each skin disorder which was present during the pendency of the appeal. 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); 38 C.F.R. § 4.2 (2012). Since the Board has found the September 2012 VA examination to be inadequate for the purpose of adjudicating the Veteran's claim, the January 2012 Board remand directives have not been substantially completed in this respect, and thus, another remand is necessary. Stegall v. West, 11 Vet. App. 268 (1998). Finally, as noted above, VA received only one treatment record in response to the most recent request for updated records from the Veteran's private, primary care physician, Dr. Tardibono. As this claim must be remanded for other matters, the Board concludes that another request to attempt to obtain records from Dr. Tardibono should be undertaken. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran several VA Forms 21-4142, and request the he complete such in favor of any private clinician from whom he has received treatment for a skin disorder, to specifically include Dr. Tardibono. After receipt of the completed release(s), request all treatment records not already associated with the claims file. If no records are received and/or a negative response is received, notify the Veteran and allow an appropriate amount of time for response. 2. After receiving any identified private treatment records, schedule the Veteran for a VA dermatology examination by an appropriate physician to determine the current nature and etiology of his skin disorder(s). The claims file and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The examination report is to contain a notation that the examiner reviewed the claims file. The examination is to include a review of the Veteran's history and current complaints, as well a comprehensive evaluation of his skin disorders, and any tests deemed necessary. Thereafter, the VA examination must address the following: a. Identify all any current skin disorders. b. If any of the following i. xerosis (diagnosed in 4/11 and 6/11) ii. hypopigmentation (diagnosed 8/09) iii. pruritis (diagnosed in 8/09, 4/11, and 6/11) iv. vitiligo (diagnosed in 8/09) v. eczema (diagnosed in 5/09, 8/09, 4/11 and 9/12) are NOT currently identified in part (a), provide an opinion concerning whether such was either i. previously present and resolved or ii. previously misdiagnosed. c. For any skin disorder which was, in the examiner's opinion, previously misdiagnosed, provide an opinion with supporting rational concerning the correct diagnosis of the skin disorder. d. For each skin disorder present during the pendency of the Veteran's appeal (since June 2009), provide an approximate date of onset. e. For each skin disorder present during the pendency of the Veteran's appeal (since June 2009), provide an opinion concerning whether such is/was at least as likely as not related to the Veteran's service. A full rationale is requested for all opinions expressed by the examiner. If the examiner is unable to provide a requested opinion, he or she should explain why. 3. Thereafter, to help avoid future remand, RO/AMC must ensure that the required actions have been accomplished in compliance with this remand. If any directive is not undertaken, or is taken in a deficient manner, corrective action should be completed before the claims file is returned to the Board. Stegall v. West, 11 Vet. App. 2668 (1998). 4. Thereafter, readjudicate the claim in light of the additional evidence. If this claim is not granted to the to the fullest extent, send him and his representative a supplemental statement of the case and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration of this claim. 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).