Citation Nr: 1320426 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 11-14 218 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for dermatophytosis of the hands and feet. 2. Entitlement to a total disability rating based on individual unemployability (TDIU).due to service-connected dermatophytosis. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from March 1954 to March 1957. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2010 rating decision in which the RO denied a rating in excess of 10 percent for dermatophytosis of the hands and feet. In December 2010, the Veteran filed a notice of disagreement. A statement of the case (SOC) was issued in May 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later in May 2011. For purposes of clarification, the Board notes that the Veteran filed a formal TDIU claim in August 2012. The Board finds that it properly has jurisdiction over a claim seeking entitlement to a TDIU, a claim part-and-parcel of the higher disability rating for a skin condition, and the Board has included this claim on the title page. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of a claim for hire rating). In May 2013, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. A June 2013 review of the Virtual VA paperless claims processing system does not reveal any documents in addition to those reflected in the paper claims file pertinent to the present appeal. In June 2013, the Acting Chairman of the Board advanced this appeal on the Board's docket on his own motion, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). For reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his request, is required. REMAND The Board's review of the claims file reveals that additional RO action in this appeal is warranted. The Veteran is seeking service an increased rating in excess of 10 percent, as well as TDIU, for his service-connected skin disability. A remand is required in this case to further develop each of these issues. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. In a statement provided in May 2011, the Veteran indicated that his service-connected skin condition had gotten worse and was affecting his wrists, arms, shoulders, ankles and back of the legs. The Veteran estimated that the condition was impacting over 60 percent of his body. In a June 2012 statement, he indicated that due to his skin disability he could not button his shirt, tie his shoes, or use his fingers. He indicated that he had just lost his job and requested a total 100% disability award. At that time, he also enclosed color photographs of his skin condition as manifested on his hands and fingers. A VA examination was most recently conducted in August 2012 at which time dermatophytosis and psoriasis were diagnosed. The examiner explained that the conditions were manifested by scaling of the hands and soles of the feet, as well as cracking and bleeding of all fingers, and estimated that the condition less than 5% of the exposed body area, and between 5 and 20% of the total body area. It was also reported that the condition was constantly treated with topical corticosteroids, but not with systemic corticosteroids. The examiner also opined that the Veteran's skin condition impacted his ability to work as the Veteran's manual dexterity was greatly affected, to include having problems with using tools, a keyboard, and holding a pen. Evidence of file reflects that the Veteran receives regular treatment (monthly or greater) for his skin condition from Dr. G.H., who is apparently a physician (dermatologist) who provides contract services through VA, although this is not entirely clear. In August 2012, Dr. G.H. provided a statement for the record indicating that he had been treating the Veteran since 2004, and noting that his current symptoms included fissures and cracks in his fingertips, rendering him unable to use is hands. The doctor indicated that the condition of the Veteran's hands was so severe that it caused him constant pain daily and opined that he was unable to work. During the May 2013 Board hearing, the Veteran testified that he wore white gloves (as he was wearing during the hearing) because he was ashamed of the condition of his hands and fingers. He stated that the skin condition primarily impacted his hands and feet, and that it was treated with a salve with a steroid in it. The Veteran indicated that he had been unemployed for over a year and had recently left his job in the auto sales/auction business, because he struggled with using his hands. The Veteran explained that since his last examination, his skin condition had gotten worse and was now manifested by bleeding (p. 5). He also confirmed that he was claiming unemployability benefits based on the skin condition, and indicated his willingness to present for a new examination. The Veteran also mentioned that his saw Dr. G.H. in St. Petersburg, FL, bi-weekly to received radiation treatment for his hands (p. 7). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. However, a new examination is appropriate when there is an assertion of an increase in severity since the last, as is essentially the case here. See 38 C.F.R. § 3.159 (2011); see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Therefore, new and contemporaneous examination should be administered to determine the manifestations and level of severity associated with the Veteran's skin condition. With respect to the TDIU claim, the Veteran maintains that his service-connected skin condition precludes him from securing of following a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In this regard, consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19. As noted in the introduction, in this case, the request for a TDIU is deemed a component of the claim for increase currently on appeal. However, a review of the record reveals that the matter of the Veteran's entitlement to a TDIU has not yet been initially adjudicated by the RO; this should be accomplished on remand. The Board also finds that additional development of this matter is warranted. While the VA examiner opined in 2012 that the Veteran's skin condition impacted his ability to work due to impairment of the Veteran's manual dexterity, the file lacks an adequate medical opinion addressing the overall impact of the Veteran's service-connected skin condition on his employability. Pursuant to VA's duty to assist, VA must assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). Thus, the Board finds that VA must obtain a medical opinion to determine whether it is at least as likely as not that his service connected skin condition renders him unable to secure or follow a substantially gainful occupation, in light of the Veteran's education, location, work experience and training. See 38 U.S.C.A. § 5103A; see also Colayong v. West, 12 Vet. App. 524, 538-40 (1999); Friscia v. Brown, 7 Vet. App. 294, 297 (1994). The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may well result in denial of the claim for increased rating as well as the claim for a TDIU (which is considered a component of the claim for increase). See 38 C.F.R. § 3.655(b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of examination sent to him by the pertinent VA medical facility. Prior to arranging for Veteran to undergo further examination, to ensure that all due process requirements are met, and the record is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding pertinent records. As regards VA records, on file are some VA treatment records dated between 2009 and 2011. Hence, it appears that the Veteran also received skin treatment through VA, and that more recent VA records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the RO should obtain all outstanding, pertinent VA records of evaluation hospitalization, and/or treatment of the Veteran from January 2009 forward, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The Board further notes that it is appears that the Veteran primarily receives his skin treatment through Dr. G.H., pertinent medical records from this source should be obtained. In this regard, it does appear that some records from Dr. G.H. are on file dated in 2009 and 2010; however, it is not clear that his complete treatment records are on file. Accordingly, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal, explaining to the Veteran that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should explain what is needed to establish entitlement to a TDIU due to the service-connected skin disability. The RO should also specifically request that the Veteran furnish, or furnish appropriate opportunity for the RO to obtain, all outstanding records of Dr. H. dated from 2009 forward. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. As a final matter, the Board notes that it does not appear that any Supplemental SOC (SSOC) was issued following the adjudication of the increased rating claim for a skin disability in a an SSOC of October 2011. Accordingly, it does not appear that the VA examination findings of August 2012, have yet been considered in conjunction with the claim, or that the Veteran's lay statements and color photos submitted since October 2011 have been considered. Accordingly, the RO's adjudication of the increased rating claim should include consideration of all evidence added to the record since the RO's last adjudication of the claim in October 2011. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent VA records of evaluation, hospitalization, and/or treatment of the Veteran dated from January 2009, forward. Follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the appellant provide, or provide appropriate authorization to obtain, any outstanding private medical records-in particular, records from Dr.G.H. dated from January 2009 forward. In the letter, explain what is needed to establish entitlement to a TDIU due to the service-connected skin disability. Also, clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, obtain all identified records following the procedures set forth in 38 C.F.R. § 3.159 (2012). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA examination, by an appropriate physician, at a VA medical facility, to evaluate his service-connected skin condition, which the Veteran reports primarily affects his feet and hands, but may also be impacting other areas of the body. The entire claims file, to include a complete copy of this REMAND, along with copies of pertinent records on Virtual VA if the physician does not have access, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. The examiner is requested to elicit and record in the examination report the Veteran's lay statements relating to his symptoms (duration, nature, frequency, and location ) of his skin condition. All appropriate tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report) and all clinical findings should be reported in detail. The following specific information should be provided in the examination report: a. The examiner should clearly indicate the nature, frequency, location, and severity of all current manifestations of the Veteran's skin condition, characterized as dermatophytosis, including the percentage of the Veteran's entire body affected by this disorder, as well as the percentage of the exposed body areas affected. The examiner must also indicate whether treatment has included systemic therapy such as corticosteroids or other immunosuppressive drugs and, if so, the total duration of such treatment in the past 12 month period. b. The examiner should describe the functional effects of the service-connected skin disability in terms of daily activities and occupational impairment. Then, the examiner should provide an opinion, consistent with sound medical principles and based on full consideration of all pertinent lay and medical evidence, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected skin disability renders him unable to secure or follow a substantially gainful occupation-that is on his ability to earn "a living wage". The examiner should not consider the Veteran's age or the impact of any nonservice-connected disabilities, but should consider, and discuss, his education, experience, training and location. The physician should set forth all examination results, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal. If the Veteran fails, without good cause, to report for the scheduled examination, in adjudicating each claim, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate each claim on appeal in light of all pertinent evidence (to particularly include all that added to the record since the last adjudication of the claim for increased rating) and legal authority (to include full consideration of whether any staged and/or extra-schedular rating(s) or TDIU is/ are appropriate). 8. If any benefit sought on appeal is denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). The RO is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).