Citation Nr: 1322392 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 06-31 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a rating in excess of 10 percent for a crusted lesion of the left lower leg. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from June 1970 to December 1971. The appeal comes before the Board of Veterans' Appeals (Board) from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, on behalf of the RO in Cleveland, Ohio. In the March 2012 and March 2013 remands, the Board referred the issue of entitlement to a rating in excess of 20 percent for osteomyelitis to the RO. No action has been taken with regard to this issue by the RO, and it is therefore again referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The Board remanded the claim in January 2010, March 2012, and March 2013 for medical clarification of the nature and extent of the Veteran's service-connected crusted lesion of the left lower leg. In the prior remands, the Board expressed concern as to whether the medical findings reported by the VA examiners were related to the service-connected crusted lesion of the left lower leg or were related to another lesion associated with the Veteran's separately service-connected residuals of osteomyelitis of the left tibia. The Board in its March 2012 Remand ordered that the RO prepare a report describing the lower left leg disability that was granted service connection in April 1982, including all of the relevant symptoms and the exact location of the crusted lesion. Although the RO prepared a document dated in April 2012, symptoms with regard to the crusted lesion were not included in the report. The March 2012 Remand also directed that the VA examiner to differentiate the crusted lesion of the left lower leg from the residuals of osteomyelitis of the left tibia, if differentiation was indicated by the record. The April 2012 VA examiner failed to do so, instead conflating the osteomyelitis infection tibial lesion with the separate service-connected crusted lesion of the left lower leg. The Board in its March 2013 Remand accordingly required a new examination, and provided some detail in the examination instructions addressing the history of the Veteran's service-connected crusted lesion as distinct from his separately service connected osteomyelitis. The RO was to obtain a new examination, with the examination report addressing the questions posed. None of the questions posed were adequately addressed by the VA examiner who conducted an examination in April 2013, and hence remand is again required due to substantial non-compliance with the Board's March 2013 remand. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). Accordingly, the case is REMANDED for the following action: 1. The RO must again contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for an increased rating for his crusted lesion of the left lower leg. The RO should explain to the Veteran that the repeated Remand and examination are necessary due to the RO's and the prior VA examiners' substantial non-compliance with the instructions of prior Board Remands in March 2012 and March 2013, and not due to any fault of the Veteran. The RO must attempt to procure copies of all records which have not previously been obtained. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded a VA examination from an examiner other than the examiners who conducted the prior VA examination for compensation purposes April 2012 and April 2013. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. The examiner must be advised and instructed as to all of the following: a. Historically, a VA examination in February 1980 found a crusted lesion just below the left knee. VA records from 1984 reflect an excision of a diagnosed dermatofibroma, as confirmed by a September 1984 pathology report, which lesion had been characterized as a nodular pruritic lesion present for the prior 10 years, and for which service connection was granted as a crusted lesion of the left lower leg. A May 1989 VA examination found a one-quarter centimeter scar as a residual of that dermatofibroma excision. The examiner must describe the nature and extent of the Veteran's crusted lesion of the left lower leg, status post surgical excision of the diagnosed dermatofibroma in 1984. The examiner must address the size and location of the scar residual, whether it is adherent to underlying parts, whether it impacts functioning, and whether it is painful or unstable. Only the dermatofibroma excision scar, as residual of the crusted lesion of the left lower leg, is to be evaluated by the present examination. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. The examiner must report the frequency/persistence of any findings. b. The examiner must discuss the treatment associated with the Veteran's left iliac wing fracture, including the insertion of a pin into the Veteran's left tibia, to include a description of the location of that pin insertion site. c. Thereafter, the examiner must provide an opinion addressing whether the lower left leg crusted lesion for which service connection was granted in April 1982 (a) is a residual of the tibial pin insertion, to include as a result of osteomyelitis, or (b) is a wholly separate and distinct disability. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ JOY A. MCDONALD 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).