Citation Nr: 1315867 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 09-32 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for skin disfigurement of the face and back. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had active service from March 1941 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Cleveland, Ohio in which the RO in pertinent part, denied the Veteran's claim of entitlement to service connection for skin disfigurement of the face and back. In June 2011, the Veteran testified before the undersigned Veterans Law Judge during a hearing at the RO. A copy of the hearing transcript has been associated with the claims folder. This case was previously before the Board in October 2012. In that decision, the Board remanded the issue for additional development, to include obtaining an addendum opinion to the December 2011 VA examination. However, as there has not been compliance with all of the directives, the case must be remanded. Stegall v. West, 11 Vet. App. 268 (1998). 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 Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND During a June 2011 hearing before the Board, the Veteran testified that his current skin disfigurement on the back, face, and head was the result of daily ultraviolet (UV) treatment that he underwent while stationed aboard Unites States Coast Guard (USCG) Cutter Bibb, (WPG-31) in the Arctic. He further testified that he, along with other servicemen, sat under UV lights in order to received Vitamin D. Contemporaneous private treatment records demonstrate diagnoses of seborrheic keratosis and benign lichenoid keratosis. Significantly, a pathology report issued following biopsy indicates seborrheic keratosis, as well as underlying sebaceous hyperplasia of the right temple. Further, a subsequent pathology report issued following a second biopsy notes that sections reveal severely sun-damaged skin demonstrating a solar lentigo, associated with benign lichenoid keratosis. In connection with the present appeal, the Veteran underwent a VA examination in December 2011. Upon examination and review of the claims file, the examiner diagnosed papulosquamous disorder of seborrheic keratosis that spread over 70 percent of the Veteran's face and 90 percent of his back with several on the upper arms and chest. The examiner opined that the Veteran's current skin disorder was less likely than not incurred in or caused by service. In providing such opinion, the examiner stated that seborrheic keratoses were benign skin lesions that were common in the elderly or an inherited trait. She also noted that some keratoses might appear in sun exposed areas, but many appear in areas not exposed to UV rays. She concluded that while genetics and age were definite indicators for seborrheic keratoses, it could not be completely ruled that UV exposure had some effect on their development also. The Board found the December 2011 VA opinion to be inadequate, as the examiner failed to discuss any of the Veteran's private treatment records, nor did she opine as to whether the Veteran's skin disorder was related to in-service UV exposure, instead she stated that UV exposure could not be ruled out. The case was remanded for an addendum opinion to address such concerns. In a March 2013 addendum opinion, the December 2011 VA examiner again opined that the Veteran's current seborrheic keratoses disorder was less likely than not incurred in or caused by service. In providing the opinion, the examiner indicated that the association of such diagnosis with sun exposure was not strong, stating, "Certainly we can not separate out the sun exposure during his military time from sun exposure experienced before and after his military service." The examiner concluded that the development of seborrheic keratoses were extremely common with time and age and noted that a vast majority of the population developed at least some. To date, the aforementioned VA examination and subsequent addendum opinion are inadequate for rating purposes. Specifically, the examiner failed to discuss any of the Veteran's private treatment records, to include those dated in January 2009 as directed by the Board in its previous remand. Of particular importance is the aforementioned pathology report which notes the Veteran's severely sun damaged skin associated with one of his current skin disorders. Moreover, although the examiner stated that she reviewed the claims file, she did not comment on or offer an etiology opinion addressing the pathology report of record which indicates a diagnosis of underlying sebaceous hyperplasia. In this regard, once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Therefore, a new medical examination and opinion are necessary in order to clarify all of the Veteran's current skin disorders, and to determine the nature and etiology of each disorder. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As there has not been substantial compliance with the remand directive, the appeal must be remanded again. Stegall, 11 Vet. App. at 268. 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. Schedule the Veteran for an appropriate VA examination in order to determine the current nature and likely etiology of any skin disorder of the face and back that may be present. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All tests deemed necessary must be performed. Based on examination findings and review of the record, the examiner must identify all of the Veteran's current skin disorder(s). In doing so, the examiner must comment on the contemporaneous private treatment records of record which indicate diagnoses of seborrheic keratosis and sebaceous hyperplasia. The examiner must then opine as to whether any currently diagnosed skin disorder is at least as likely as not related to the Veteran's military service, to include the claimed exposure to UV light while serving aboard Cutter Bibb, in the Arctic. In rendering such opinion(s), the examiner must consider and comment on: * The January 2009 private pathology report which notes that sections of the biopsy reveal severely sun-damaged skin demonstrating a solar lentigo, associated with benign lichenoid keratosis. * The December 2011 VA examination report * The Veteran's August 2012 statement in which he reported that no one in his family had any skin imperfections; and that he did not have any lesions below his waist, just on his upper body and face where he was exposed to the UVA and UVB rays. * The March 2013 VA addendum report The examination report must include a complete rationale for all opinions expressed. 2. The examination report must be reviewed by the RO/AMC to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO/AMC must implement corrective procedures. 3. Thereafter, readjudicate the Veteran's claim, with application of all appropriate law and regulations, including consideration of any additional information obtained as a result of this remand. If the decision with respect to the claim remains adverse to the Veteran, he and his representative must be furnished a supplemental statement of the case and afforded a reasonable period of time to respond. 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).