Citation Nr: 1320993 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 06-17 763A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a disability rating in excess of 10 percent for folliculitis of the facial area, facial scars, and acne prior to September 25, 2009, and in excess of 30 percent thereafter, to include on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1975 to December 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in August 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which continued a 10 percent disability rating for folliculitis of the facial area, with facial scars and acne. A subsequent rating decision in August 2011 granted a separate claim of service connection for discoid lupus erythematosus and assigned a disability rating of 10 percent effective November 2004. A December 2011 rating decision implemented the Board's grant of a 30 percent disability rating for folliculitis as of September 2009 and incorporated the formerly separate evaluation of discoid lupus erythematosus within this 30 percent rating. This claim was previously before the Board in October 2011, when an increased disability rating for folliculitis prior to September 2009 was denied, but a disability rating of 30 percent was granted as of September 25, 2009. The Veteran appealed the denial of increased rating prior to September 2009 and the denial of an extraschedular rating before and after that date to the United States Court of Appeals for Veterans Claims (Court), which in March 2013, granted a Joint Motion for Remand of the parties (VA Secretary and the Veteran), and vacated the Board's decision and remanded the case pursuant to 38 U.S.C. § 7252(a) for readjudication consistent with the Motion. The issues of entitlement to an earlier effective date for the grant of service connection for discoid lupus erythematosus and of entitlement to service connection for osteoporosis, to include as secondary to folliculitis and discoid lupus erythematosus, have been raised by the record, but have not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action. 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 The Veteran seeks a disability rating in excess of 10 percent for his folliculitis prior to September 25, 2009 and consideration of an extraschedular rating both before and after that date. Based on the discussion and the terms of the Joint Motion, the Board finds that there are specific questions that must be addressed prior to a proper adjudication of this claim. Also, as of September 2009, the RO incorporated the separate rating for discoid lupus erythematosus within the 30 percent disability rating assigned for folliculitis, which imposes an obligation on the Board to consider the symptoms and manifestations of this condition as well in adjudicating the current claim. In order to ensure that the Board has a full and clear record with respect to both disabilities, an additional VA examination and opinion should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an appropriate VA dermatological examination to determine the precise nature and severity of both his folliculitis of the facial area with facial scarring and acne and his discoid lupus erythematosus and to differentiate the symptoms and manifestations of each disability to the extent possible. The examiner is asked to determine, based on the Veteran's appearance and on the history he provides, the nature, extent, and severity of any scarring and to indicate if such scars are the result of folliculitis or discoid lupus erythematosus. The percentage of the visible body surface and of the body as a whole affected by the condition at its worst should be indicated. The examiner is also asked to evaluate and provide an opinion regarding the functional impairments resulting from both the folliculitis and the discoid lupus erythematosus, to include, if applicable, the medication prescribed, the need to avoid sun exposure, inability to perform yard work, and any limitations on working hours or conditions. The examiner is further asked to address whether the Veteran's treatment regimen for either folliculitis or discoid lupus erythematosus has included topical, local, and/or systemic medication, and to indicate the nature of each prescription medication. Copies of the rating criteria under Diagnostic Code 7806 should be provided to inform the examiner's discussion. The examiner should provide the rationale for any opinions rendered. A copy of the claims file should be provided to the examiner for review. 2. Based on the results of the examination ordered above, the RO/AMC should specifically adjudicate the question of entitlement to an increased disability rating on an extraschedular basis because of functional limitations, both before and after September 2009, and should refer the matter to the Director of Compensation and Pension Service if warranted. 3. On completion of the foregoing, the claim should be adjudicated, to include a discussion of the rating for the separate disability of discoid lupus erythematosus whether or not it is assigned a separate rating. If the decision remains adverse to the Veteran, then provide him and his representative a supplemental statement of the case and return the case to the Board. 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). _________________________________________________ Eric S. Leboff 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).