Citation Nr: 1320587 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 11-25 247 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE 1. Entitlement to an evaluation greater than 30 percent for a skin condition, characterized as groin rash, to include chronic eczema, scarring alopecia, and chronic intermittent urticaria, from May 28, 2010 through October 31, 2011. 2. Entitlement to an evaluation greater than 10 percent for a skin condition characterized as groin rash from November 1, 2011. 3. Propriety of the reduction from 30 percent to 10 percent for a skin condition, effective November 1, 2011, to include the question of whether severance of service connection for chronic eczema, scarring alopecia, and chronic intermittent urticaria was proper. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from October 1986 to October 1990. He also had a period of verified active duty for training (ACDUTRA) from August 1983 to October 1986. This matter comes before the Department of Veterans Affairs (VA) Board of Veterans Affairs (Board) from rating decisions of the VA Regional Office (RO) in Lincoln, Nebraska that, among other things, awarded a 30 percent evaluation for service-connected skin disability and later reduced the 30 percent disability rating in effect for service-connected skin disability to 10 percent disabling, effective from November 1, 2011. The Veteran was afforded a hearing at the RO in November 2011, and a videoconference hearing in April 2013 before the undersigned Acting Veterans Law Judge sitting at Washington, DC. The transcripts are of record. Following review of the record, 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 After carefully considering the procedural development of this case and for reasons expressed below, the Board finds that this case must be remanded for further development. The Board regrets the delay occasioned by this remand, but is of the opinion that it is required to ensure that the Veteran is accorded full due process. In this regard, it is necessary to delineate the following relevant timeline of events. The Veteran filed a claim for an increased rating for his service-connected skin condition in May 2010. By rating action dated in July 2010, the 10 percent rating for groin rash, to include chronic eczema, scarring alopecia and chronic intermittent urticaria, was increased to 30 percent effective May 28, 2010. A September 2010 rating confirmed and continued the 30 percent rating. A notice of disagreement to the 30 percent rating was received in January 2011. By rating decision in May 2011, the RO proposed to sever service connection for chronic eczema, scarring alopecia, and intermittent urticaria. Since these symptoms were no longer found to be associated with the service-connected skin disorder under consideration, the May 2011 rating decision also proposed to reduce the skin disorder rating from 30 percent to 10 percent, effective November 1, 2011. By rating action dated in August 2011, the RO severed service connection for chronic eczema, scarring alopecia, and intermittent urticaria and reduced the service-connected skin disorder rating from 30 to 10 percent, effective November 1, 2011. The Veteran was notified of these determinations by letter dated August 30, 2011 and was provided notice of his appeal rights. A September 2011 statement of the case adjudicated the issue of evaluation of groin rash, claimed as a skin disorder of the buttocks, things and legs) currently evaluated as 30 percent disabling and effectuated the reduction to 10 percent. The Veteran subsequently submitted a VA Form 9 received in September 2011 in which he clearly spelled out "NOTICE OF DISAGREEMENT" stating that he disagreed with the VA's "reduction for my 30 percent service connected chronic eczema (groin area)." In an Appeal Deferral dated in November 2011, the RO determined that the new notice of disagreement was a "continuation of the prior NOD from 01-20-2011 regarding evaluation of skin condition which involves a reduction from 30 to 10%." The Board observes, however, that the January 2011 notice of disagreement did not pertain to a reduction in rating, but a disagreement with the continuation of a 30 percent rating for service-connected skin disability. In this instance, the Board finds that the Veteran filed a clearly worded notice of disagreement to the reduction in rating from 30 to 10 percent. Although the notice of disagreement was sent on VA Form 9 (Appeal to Board of Veterans Appeal), he clearly indicated that this was in response to the reduction in rating effective November 1, 2011. Although there were at least three ensuing supplemental statements of the case following the September 2011 notice of disagreement, none addresses the propriety of the severance of service connection of eczema, scarring alopecia, and chronic intermittent urticaria, and the subsequent reduction of the evaluation assigned to the Veteran's service-connected skin disorder from 30 to 10 percent. See 38 C.F.R. § 20.200 (2012). Accordingly, VA has a duty to issue a statement of the case on that issue and a remand is required so that the Veteran may perfect the appeal by filing a substantive appeal. See Manlincon v. West, 12 Vet. App. 238 (1999). It should be pointed out to the Veteran that the claim of the propriety of the reduction for skin disability is not yet properly within the jurisdiction of the Board, as a timely substantive appeal has not been received. See 38 C.F.R. §§ 20.200, 20.202, 20.202 (2012). Thus, the Board advises him that he should submit an Appeal to Board of Veterans Appeal (VA Form 9) within 60 days of receipt of the statement of the case if he desires to complete his appeal. Regarding the Veteran's remaining increased rating claims, these issues are inextricably intertwined with the propriety of the severance and reduction for the skin disability. As such, these issues must be deferred pending resolution of the issue of whether the reduction was proper. This is because any Board action with respect to the claim for an increased evaluation while the reduction matter is unresolved would be premature and could potentially lead to a conflict in the adjudication process and produce a disparate outcome. Additionally, the Board finds that further VA examination and opinion is warranted regarding the nature, extent, and severity of the Veteran's service-connected skin disability picture. The Board notes that the March and May 2011 VA examination reports used by the RO to effectuate the Veteran's severance and rating reduction were prepared by a staff physician who admitted to having limited knowledge regarding dermatological issues. Although the May 2011 addendum report reflects that he eventually conferred with a dermatologist, there is no indication that this dermatologist had opportunity to review the Veteran's entire claims file prior to providing an assessment. Such review was imperative, in the Board's opinion, given a March 2012 private opinion of record stating that the Veteran's current atopic dermatitis "is an over-arching skin disorder which encompasses eczema as well as recurrent urticaria ('hives')" and "can frequently be mistaken for other skin conditions . . . [such as] . . . fungal infections." Given the foregoing, VA should arrange for the Veteran to undergo examination by a dermatologist. Moreover, reasonable efforts should be made to schedule the Veteran for examination during a period in which his skin condition is active, i.e., during the warmer summer months. Accordingly, the case is REMANDED for the following actions: 1. Take all actions required by 38 C.F.R. § 19.26 (2012), including issuing a statement of the case to the Veteran and his representative, regarding the issue of whether the reduction from 30 percent to 10 percent for a skin condition, effective November 1, 2011, was proper, to include the question of whether severance of service connection for chronic eczema, scarring alopecia, and chronic intermittent urticaria was also proper. 2. Schedule the Veteran for a VA skin examination with a dermatologist to determine the current nature and severity of his service-connected skin disability. All effort should be made to schedule this examination for a time when his skin disease is active and/or during the summer months. Access to the claims file, Virtual VA, and a copy of this remand must be made available to the examiner for review. Following a review of the claims file and an examination of the Veteran, to include his face, hands, arms, legs, chest, groin, and feet, the examiner should address the following: (a) Identify all skin conditions present and, to the extent possible, identify and differentiate all manifestations directly attributable to each condition. (b) Discuss which skin condition(s) are associated with the Veteran's service-connected groin rash. The examiner must consider and comment on the March 2012 private medical opinion stating that the Veteran's current atopic dermatitis "is an over-arching skin disorder which encompasses eczema as well as recurrent urticaria ('hives')" and "can frequently be mistaken for other skin conditions . . . [such as] . . . fungal infections." (c) For all skin conditions found to be associated with the Veteran's service-connected groin rash, review the contemporaneous medical evidence and provide an opinion regarding the percent of entire body involved and the percent of exposed area affected during prior examinations by VA and non-VA physicians. The examiner is asked to provide a rationale for all opinions rendered. If the examiner is not able to provide an opinion, he or she should explain why. 3. After the development requested has been completed, the RO/AMC should review any examination and/or medical opinion report(s) to ensure that it is in complete compliance with the directives of this REMAND. The RO/AMC must ensure that each examiner documented his or her consideration of Virtual VA. If any report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 4. The Veteran is hereby notified that it is his responsibility to report for any examination(s) and to cooperate in the development of his claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any aforementioned examination(s), documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. After taking any further development deemed appropriate, re-adjudicate the issues on appeal. If a benefit is not granted, provide a supplemental statement of the case to the Veteran and his representative before the case is returned to the Board. 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). _________________________________________________ STEPHANIE L. CAUCUTT 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).