Citation Nr: 1319171 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 08-15 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a skin disability. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served with the Army National Guard from September 1985 until September 2009, with periods of active duty from July 1986 to February 1987, September 1990 to July 1991, and February 2003 to March 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which, in pertinent part, denied entitlement to service connection for a skin disability. The Veteran provided testimony during an RO hearing in March 2011. A transcript is of record. The Board remanded this issue in May 2012 and January 2013. The Board also remanded the issue of entitlement to service connection for a left arm disability. The RO subsequently granted service connection in a March 2013 rating decision. As that represented a full grant of the benefit sought, the issue regarding the left arm is no longer on appeal. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The relevant records have been reviewed. 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 January 2013 remand, the Board requested that a VA examination be provided to the Veteran to assess the nature and etiology of his reported skin disability. In relevant part, if a currently diagnosed skin disability was found upon examination, the examiner was requested to opine as to whether it is at least as likely as not that the disability was caused or aggravated by the Veteran's service or incidents in service. The examiner was to provide a rationale for each opinion, which specifically took into consideration all lay evidence. The Veteran received the examination in February 2013, where he reported that he had the claimed disability on his back, chest, and thighs at that time. The examiner diagnosed urticaria, and following a review of the record, provided a negative etiology opinion. As a rationale, the examiner only stated that there were no signs or symptoms of a rash or urticaria at that time. This examination is inadequate as there is a discrepancy between what the Veteran reported to be currently present and what the examiner found without any further explanation from the examiner. It is unclear based on this how the examiner was able to arrive at the diagnosis if the skin disability was not present. Furthermore, the examiner essentially did not provide any rationale for the etiology opinion and did not discuss the Veteran's reports in providing the opinion. The Court has held that an examination is inadequate where the examiner formulates an opinion without considering the Veteran's statements. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Furthermore, an examination is inadequate where the examiner does not review the medical history and provide a factually accurate rationale for the opinions provided in the examination report. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 303-4 (2008). As the Board's January 2013 remand order has not been complied with, remand of the issue is necessary. See Stegall v. West, 11 Vet. App 268 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). A new VA examination must be provided. To that end, the Board notes that where the claimed disorder is cyclical or fluctuating in severity, such as the Veteran's skin disability, VA must offer an examination during an active stage of the disease. Ardison v. Brown, 6 Vet. App. 405, 408 (1994); Bowers v. Derwinski, 2 Vet. App. 675, 676 (1992) (holding that "it is the frequency and duration of the outbreaks and the appearance and virulence of them during the outbreaks that must be addressed"). The frequency, duration, and outbreaks of skin disease exacerbations must be addressed, and the skin disorder should be considered, whenever possible, at a time when it is most disabling. Ardison, 6 Vet. App. at 408; Bowers, 2 Vet. App. at 676. The Board requests that every effort is made to schedule and provide the Veteran with the required examination during an active stage of his skin disability. Such efforts should be documented. The Board requests that all records of ongoing VA treatment be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records and associate them with the paper or virtual claims file. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 2. Once the above development has been completed, provide the Veteran with a VA dermatology examination with a qualified dermatologist to determine the nature and etiology of the Veteran's current skin disability. Every effort must be made to provide this examination while the reported skin disability is active and such efforts must be documented in the claims file. The examination should include any diagnostic testing or evaluation deemed necessary. The claims file, including a complete copy of this remand and access to the virtual file, must be made available for review of the pertinent evidence. The examiner should specifically note whether the examination is being conducted during a period of flare-up or active skin disease or disability. Based on a review of the claims file and the Veteran's reports, the examiner is asked to determine whether there is or has been a currently diagnosed disability since the institution of this claim in January 2003. If so, the examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed disability had onset in service or is otherwise related to a disease or injury in service. If a current diagnosis is not or has not been made, the examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's reported skin rash is the result of an undiagnosed illness. The examiner should thoroughly explain rationales for the provided opinions that specifically take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 3. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand. 4. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. The appellant 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 2002 & 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).