Citation Nr: 1324307 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 10-04 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable rating for keloid formations of the right shoulder, hands, forehead, right knee, and right foot. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from January 1985 to February 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2011, the Veteran failed to report for the hearing he had requested before a Veterans' Law Judge sitting at the RO. Therefore, the Board finds this hearing request withdrawn. 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 reports that his service connected keloid formations have worsened since the most recent examination, which was conducted in August 2009. As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of this disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand this claim. A review of the record on appeal reveals that the Veteran has a history of not reporting for VA examinations because his work causes him to be out of town. See February 2009 statement in support of claim. Therefore, when scheduling the Veteran for his new VA examination the RO/AMC should first contact the claimant to find out dates that he is available for the examination. A copy of the letter notifying the Veteran of the examination should be associated with the claims file. In this regard, the notice of the VA examination should also notify the Veteran that his claim will be rated based on the evidence of record if he fails to show for the VA examination without good cause. See 38 C.F.R. § 3.655(b) (2012). When readjudicating the current appeal for a compensable rating, the RO/AMC should be mindful of the United States Court of Appeals for Veterans Claim (Court) holding in Esteban v. Brown, 6 Vet. App. 259 (1994) and consider if the Veteran meets the criteria for a separate compensable ratings for each of the keloid formations on his right shoulder, hands, forehead, right knee, and right foot. See 38 U.S.C.A. § 5103A(b) (West 2002). While the appeal is in remand status, the RO/AMC should ask the Veteran to identify the location of all post-service medical facilities at which he receives treatment and these records should be obtained and associated with the claims file. Accordingly, the appeal is REMANDED to the RO/AMC for the following actions: 1. Ask the Veteran to identify the location of all post-service medical facilities he receives treatment at, including all VA Medical Centers, and provide it with authorizations to obtain all private treatment records. After obtaining all needed authorizations, obtain and associate with the claims file, either physically or electronically, all of the Veteran's treatment records from these facilities including any of his outstanding contemporaneous records from the Temple VA Medical Center. All actions to obtain the requested records should be documented fully in the claims file. 2. Contact the Veteran and find out what dates he will be in-town to show for an examination. Thereafter, mail the Veteran notice of an examination scheduled for one of his available dates. The notice of the VA examination should also notify the Veteran that his claim will be rated based on the evidence of record if he fails to show for it without good cause. A copy of the letter notifying the Veteran of the examination should be associated with the claims file. 3. Afford the Veteran an appropriate VA skin/scars examination. The claims file should be made available and reviewed by the examiner, and all necessary tests should be performed. As to each keloid formation (the right shoulder, hands, forehead, right knee, and right foot), the examiner should provide answers to the following questions: i. Does it cover less than 5 percent of exposed areas affected and/or no more than topical therapy required during any 12-month period during the pendency of the appeal; ii. Does it cover 20 to 40 percent of the entire body, 20 to 40 percent of exposed areas affected, or require systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during any 12-month period during the pendency of the appeal; iii. Does it cover more than 40 percent of the entire body, more than 40 percent of exposed areas affected, or require constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during any 12-month period during the pendency of the appeal; iv. Is it superficial and unstable; v. Is it superficial and tender; vi. What is its exact length and width; and vii. As to the forehead only, does it cause disfigurement of the head, face, or neck (a) with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with six or more characteristics of disfigurement, (b) with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with four or five characteristics of disfigurement, or (c) with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with two or three characteristics of disfigurement. The 8 characteristics of disfigurement are as follows: a scar 5 or more inches (13 or more cm.) in length, a scar at least one-quarter inch (0.6 cm.) wide at widest part, a surface contour of scar elevated or depressed on palpation, a scar adherent to underlying tissue, skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.), skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.), underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.), and skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered. 4. Then readjudicate the claim. The adjudication should consider if a staged rating is warranted as well as whether the criteria for a separate compensable rating has been meet for each of the keloid formations on the right shoulder, hands, forehead, right knee, and right foot. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Esteban. 5. If any benefit sought on appeal is not granted in full, the Veteran and his representative should be provided a supplemental statement of the case (SSOC) which includes notice of the laws and regulations governing the claim including 38 C.F.R. § 3.655. A reasonable period of time should be allowed for response before the appeal 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 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). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).