Citation Nr: 1324866	
Decision Date: 08/06/13    Archive Date: 08/13/13

DOCKET NO.  07-23 135	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1. Entitlement to service connection for major depression.  

2.  Entitlement to service connection for right ear hearing loss.  

3.  Entitlement to an initial rating in excess of 10 percent for seborrheic dermatitis. 


REPRESENTATION

Appellant represented by:	Jonathan Bruce, Attorney at Law 


ATTORNEY FOR THE BOARD

C.L. Krasinski, Counsel


INTRODUCTION

The Veteran had active service from January 1981 to April 1981 and from February 2003 to February 2004.  He also had periods of active duty for training and/or inactive duty training in the National Guard. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which granted service connection for seborrheic dermatitis and assigned a 10 percent rating from April 6, 2006.  Service connection for right ear hearing loss, post traumatic stress disorder (PTSD), and a depressive disorder was denied.  The Veteran perfected a timely appeal.  

In a February 2011 rating decision, the RO granted service connection for PTSD and assigned a 50 percent rating from April 6, 2006 and a 70 percent rating from November 5, 2010.  This is a complete grant of the benefits sought on appeal for this issue and therefore, this issue is no longer before the Board for appellate review.  The issue of service connection for major depression and depressive disorder is still before the Board on appellate review.  

In an October 2011 rating decision, the RO granted entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU) effective from November 5, 2010.  The Veteran was notified of this decision by letter dated October 18, 2011.  The Veteran's attorney submitted a statement dated October 17, 2012 in which the attorney expressed disagreement with the effective date of the TDIU award.  However, this statement is dated-stamped as received at the Appeals Management Center (AMC) on December 4, 2012 and at the Board on December 7, 2012.  The Board does not take jurisdiction of this issue at this time since the issue of whether the Veteran's notice of disagreement is timely has been raised.  This issue is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action.

In October 2012, the Board received additional medical evidence and lay statements from the Veteran and his representative with a waiver of agency of original jurisdiction consideration pursuant to 38 C.F.R. § 20.1304.  Therefore, the Board finds that the solicitation of a waiver and/or remand for the RO's initial consideration of this evidence is not required.  38 C.F.R. § 20.1304(c).  A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The issue of entitlement to a higher initial rating for seborrheic dermatitis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, DC.


FINDINGS OF FACT

1.  The Veteran experienced symptoms of depression in service and since service.  

2.  It is as likely as not that the major depression is related to active service. 

3.  The Veteran is not shown to have current right ear hearing loss disability for VA compensation purposes.   


CONCLUSIONS OF LAW

1.  Affording the Veteran the benefit of the doubt, the criteria for the establishment of service connection for major depression are met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 3.303 (2012).

2.  The claim of service connection right ear hearing loss must be denied by operation of law.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

1.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  A "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1).  See 73 Fed. Reg. 23,353-356 (April 30, 2008). 

This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In this case, the RO provided VCAA notice letters to the Veteran in April 2006 and May 2006, prior to the initial adjudication of the claim, and in September 2009.  The letters notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA.  

The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of his claim to the RO.  The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  

The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective dates in April 2006.  

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 

The VA treatment records dated from 2004 to November 2010 are associated with the claims folder.  Social Security Administration records are associated with the claims file.  Private medical records from Dr. N.R.N., Dr. M.M., Dr. F.O. and Dr. M.M.C. are associated with the claims folder.  In September 2006, the Veteran indicated that he had no additional information or evidence to submit in support of his claims.  

The Veteran underwent VA examinations in 2010 and 2011 to obtain medical evidence as to the nature and likely etiology of the claimed psychiatric disorder and right ear hearing loss.  These examinations were adequate because each was performed by a medical professional based on either a review of claims file or solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran.  Each examiner provided a medical opinion and a rationale for the opinion provided.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Neither the Veteran nor his representative has challenged the adequacy of the examinations obtained.  Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). 

For these reasons, the Board finds that the duties to notify and assist the Veteran in this claims have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

2.  Service Connection: 

Legal Authority

Service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (2012).  Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 303, 305 (1992).  

In order to establish service connection for the claimed disorder, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999). 

An organic disease of the nervous system to include sensorineural hearing loss and psychoses are listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303(b).  

Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases to include sensorineural hearing loss and psychoses become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.  

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria.  Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz).  Hensley v. Brown, 5 Vet. App. 155, 158 (1993).  The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385.  

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation.  See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996).  

The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder.  See Libertine, 9 Vet. App. at 522-23.  The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; they aid him by relaxing the adjudicative evidentiary requirements for determining what happened in service.  Clyburn v. West, 12 Vet. App. 296, 303 (1999).

The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996).  

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  

The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).  

The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence; therefore, the veteran prevails in his claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise.  It is only when the weight of the evidence is against a veteran's claim that the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

3.  Analysis

The Board notes that in the February 2011 rating decision the RO found that the Veteran was a combat veteran and was entitled to the application of 38 U.S.C.A. § 1154 (b).  Affording the Veteran the benefit of the doubt, the Board concurs with the RO's findings and finds that the Veteran was a combat veteran based upon his service in Kuwait.  The service records do not show that the Veteran was awarded a medal indicative of combat, but there is evidence that the Veteran came under enemy fire during service.  

Section 1154 (b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service connected.  Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996).  Rather, it aids the combat veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service.  Id.  

Section 1154 (b) addresses the combat veteran's ability to allege that an event occurred in service while engaging in combat.  See Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996).  That section, however, does not address the questions of either current disability or nexus to service, both of which competent medical evidence is generally required.  Id. citing Caluza v. Brown, 7 Vet. App. 498, 507 (1995).

Service Connection for Major Depression

The Veteran essentially contends that he currently has major depression due to his active service.  Service records show that he served in Kuwait during April 2003 to May 2003.  The Veteran asserts that he also served in Gutanamo Bay.  Service connection was granted for PTSD in a February 2011 rating decision.  A 50 percent rating was assigned from April 6, 2006 and a 70 percent rating was assigned from November 5, 2010.  Service connection for PTSD was granted under the new PTSD regulations regarding fear of terrorist activity.  

After a review of all the evidence and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's current diagnosis of major depression had its onset in service and is related to active service and the service-connected PTSD.    

The Board finds that the weight of the competent and credible evidence establishes that the Veteran has a current diagnosis of major depression, not depressive disorder.  The medical evidence, discussed in detail below, shows that depressive disorder was initially diagnosed in 2006 and 2007 but since that time, the diagnosis has been major depression.  

There is competent evidence that the Veteran has had recurrent symptoms depression in service and since service.  The Veteran had a period of active service from February 2003 to February 2004.  A January 2004 post deployment questionnaire indicates that the Veteran denied feeling depressed.  However, a June 2004 report of medical history for a National Guard retention examination indicates that the Veteran reported having nervous trouble, frequent trouble sleeping, and depression or excessive worry. The examiner noted that the Veteran reported having nervous trouble when he served in Cuba in 2003.  An October 2004 annual medical certification indicates that the Veteran was currently taking medications for depression.  A November 2005 VA treatment record notes that the Veteran had depression and he was being followed by a private psychiatrist, Dr. N.R.  VA treatment records dated in May 2006, April 2007, and August 2007 indicate that the Veteran continued to have depression.  A July 2006 VA psychiatric examination report shows a diagnosis of depressive disorder not otherwise specified.  An August 2007 VA psychiatric evaluation report indicates that the Veteran reported having depression for the last two years.  The diagnosis, in addition to PTSD, was major depressive disorder, severe with psychotic features.  VA treatment records and VA examination reports show that the Veteran continued to have a diagnosis of major depression.  A May 2008 VA psychiatric examination report shows a diagnosis of major depression with mood incongruent psychotic features.  VA treatment records and private treatment records show that the Veteran continued to receive psychiatric treatment in 2008 and 2009.   

Hospital records dated in March 2010 indicate that the Veteran was admitted to a hospital because of symptoms of depression, aggressive thoughts, anxiety, and impulsiveness.  The discharge diagnosis was major severe recurrent depression.  It was noted that the Veteran had a history of depression since 2003 and he had a relapse four months earlier.  At the November 2010 VA psychiatric examination, the Veteran reported feeling sad and angry in service when his friend committed suicide.  On the report of medical history, he reported feeling depressed.  

There is medical opinion evidence which relates the current diagnosis of major depression to active service and to the service-connected PTSD.  In a March 2010 psychiatric evaluation report, Dr. N.R.N. stated that the Veteran's negative military experiences affected him emotionally.  Dr. N.R.N. diagnosed PTSD and major depression recurrent with psychotic features.  

In an October 2012, Dr. Center, a psychiatrist, stated that she conducted a thorough review of the Veteran's medical records.  She indicated that the Veteran reported witnessing an explosion outside of a mess hall when he was stationed in Kuwait.  He also reported that when he was stationed at Guantanamo, a fellow soldier committed suicide and this upset the Veteran.  Dr. Center indicated that the Veteran deteriorated psychiatrically and he required active mental health treatment prior to his discharge in 2004 and after service, the Veteran sought mental health treatment by a private psychiatrist in October 2004.  Dr. Center reviewed the Veteran's psychiatric treatment since 2004; she noted that the treatment records documented symptoms of depression in October 2004, September 2007, November 2008, and December 2008.  Dr. Center noted that a March 2010 progress note indicated that the Veteran had a possible diagnosis of major depression with psychotic features.  Dr. Center concluded that the Veteran had severe PTSD and he also had co morbid symptoms consistent with a diagnosis of major depression with psychotic features.  Dr. Center indicated that flowing the onset of the Veteran's PTSD symptoms, he developed secondary symptoms of depression and psychosis which have further contributed to his severe functional impairment.  In a July 2012 statement, Dr. M.M.C., a psychiatrist, stated that she interviewed the Veteran and noted that the Veteran had undergone treatment for depression and he also has PTSD.   

There is evidence which weighs against the claim for service connection.  For instance, the November 2010 VA psychiatric examination indicates that the Axis I diagnosis was chronic PTSD.  The examiner indicated that there were no comorbities on examination.   

The Board finds that the evidence is in equipoise on the question of whether the symptoms of depression first began in service, has been recurrent since service, and still exist.  The Board finds that the Veteran is competent to provide lay testimony as to the onset of his observable depression symptoms.  See Jandreau; supra.  The Board finds that the Veteran's statements that he had symptoms of depression in service and since service to be credible.  These statements have been consistent with other statements and information recorded during the course of medical treatment over the years.  The Board finds that the Veteran's statements are sufficient evidence that these events occurred in service.   

The Board also finds that the Veteran experienced recurrent symptoms of depression since service.  There is competent evidence that the Veteran had symptoms of depression in service in 2003 and 2004 and he has had recurrent symptoms of depression since service.  There is medical evidence that relates the symptoms of depression to the diagnosis of major depression.  The Board finds that the evidence is in equipoise on the question of whether the major depression had its clinical onset during the Veteran's period of active service, the Veteran has had recurrent symptoms of depression in service and since service and the recurrent symptoms of depression support a later diagnosis of major depression and major depressive disorder.  For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for major depression is warranted.     

Service Connection for Right Ear Hearing Loss

The Veteran asserts that he has right ear hearing loss as a result of his active service.  He reports being exposed to loud noise in active service.  The Board finds that the Veteran is competent to describe firsthand experiences such as being exposed to loud noise and he is competent to report symptoms of decreased hearing.  A lay person is competent to testify only as to observable symptoms.  See Falzone v. Brown, 8 Vet. App. 398, 403 (1995).  

The Veteran underwent VA audiological examination in October 2011 in connection with his claim for service connection.  The examiner reviewed the claims file, noted an accurate medical history, and conducted audiometric testing.  

On the authorized VA audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
N/A
-
-
-
-
-
RIGHT
25
20
15
20
30

Speech audiometry revealed Maryland CNC word list speech recognition score of 100 percent in the right ear.  The diagnosis was sensorineural hearing loss in the right ear.  

The criteria set forth in § 3.385 are not met with respect to hearing impairment in the right ear for VA purposes.  The Veteran does not have an auditory threshold of 40 decibels or greater for any of the designated frequencies of 500, 1000, 2000, 3000, and 4000 Hertz.  He does not have at least three auditory thresholds of 26 decibels or greater for the designated frequencies.  He also does not have a speech recognition score using the Maryland CNC Test of less than 100 percent.  

The Board notes that Congress has specifically limited entitlement to service connection to instances where disease or injury has resulted in a disability.  See 38 U.S.C.A. §§ 1110, 1131.  The evidence reflects that the Veteran does not have right ear hearing loss as defined by VA standards.  For hearing loss to exist as a current disability, the provisions of 38 C.F.R. § 3.385 must be met.  See Meedel v. Shinseki, 23 Vet. App. 277, 283 (2009); Hensley, 5 Vet. App. at 158. 

In the absence of proof of current disability, the claim of service connection may not be granted.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992);see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).

Because the evidence does not show that the Veteran meets the criteria under 38 C.F.R. § 3.385, his claim of service connection must be denied by law.   


ORDER

Service connection for major depression is warranted, and the appeal is granted. 

Service connection for right ear hearing loss is not warranted, and the appeal is denied. 


REMAND

The VCAA specifically provides that the duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d) (West 2002).

The Board finds that another VA examination is required to obtain evidence as to the severity of the service-connected seborrheic dermatitis in terms of the applicable rating criteria.  The service-connected seborrheic dermatitis is currently rated under Diagnostic Code 7806 which rates the skin disorder based upon the percentage of the exposed skin or the entire body affected by the skin disorder.  Diagnostic Code 7806 also provides that the skin disorder may be rated under Diagnostic Code 7800, disfigurement of the head, face, and neck; and Diagnostic Codes 7801 to 7805.  See 38 C.F.R. § 4.118.  

The Veteran was afforded a VA examination in October 2011.  The examiner reported the percentage of the exposed skin and entire body affected by the service-connected seborrheic dermatitis.  The examiner noted that the skin disorder was located on the face and back with mild scaling.  The examiner further noted that the skin disorder was located on the upper back and there were hyperpigmented plaques.  On the examination report, the examiner then noted that there was no disfigurement to the face due to the seborrheic dermatitis.  

The Board finds that additional examination is necessary to determine whether the Veteran has disfigurement or other scars due to the seborrheic dermatitis.  It is not clear from the examination whether there is disfigurement to the face.  The examiner noted that there was evidence of mild scaling on the face and back but then indicated there was no disfigurement.  However, under Diagnostic Code 7800, abnormal skin texture to include scaling, it considered a characteristic of disfigurement.  See 38 C.F.R. § 4.118.  

The Board finds that a VA examination to obtain medical evidence as to the nature and severity of the seborrheic dermatitis is warranted so that this disability may be rated under all pertinent diagnostic codes.  Additional examination is necessary to obtain medical evidence as to whether the service-connected seborrheic dermatitis affects the face, head, or neck and results in scarring.  

The Board notes that there are some disorders of the skin that have active and inactive stages or are subject to remission and recurrence.  Where the evaluation of such a disability that fluctuates in degree of disability is at issue, an examination of the disability during an active stage or during an outbreak is required.  Ardison v. Brown, 6 Vet. App. 405 (1994); Bowers v. Derwinski, 2 Vet. App. 675 (1992).  Thus, the frequency, duration, and outbreaks of skin disease exacerbations must be addressed and the skin disorder should be considered, whenever possible, at a time when it is most disabling.  The Board finds that if possible, the RO should make an attempt to schedule the Veteran for a VA skin examination when the Veteran's seborrheic dermatitis is active.  

The RO should contact the Veteran by letter and request that he identify treatment for the service-connected seborrheic dermatitis since 2010.  The Veteran should be asked to provide sufficient information, and if necessary authorization, to enable the RO to obtain the pertinent VA and non-VA treatment records identified by the Veteran.  The RO should make an attempt to obtain any treatment records identified by the Veteran. VA has a duty to seek these records. 38 U.S.C.A. § 5103A(b)(1).   

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and ask him to identify all VA and non-VA sources of medical treatment for the service-connected seborrheic dermatitis, as well as sufficient information to identify the health care providers, and if necessary, signed authorization, to enable VA to obtain any additional evidence.  If the Veteran adequately identifies the health care providers and provides the completed authorizations, request legible copies of all pertinent clinical records that have not been previously obtained, and incorporate them into the Veteran's claims file.  The letter should invite the Veteran to submit any pertinent medical evidence in support of the claim.  

2.  Schedule the Veteran for a VA examination in order to determine the severity of the service-connected seborrheic dermatitis.  If such examination cannot be conducted during a period of flare-up of the seborrheic dermatitis, the examiner should record a detailed clinical history referable to the manifestations.

The Veteran's VA claims folder must be made available to the examiner for review in connection with the examination.  Any indicated testing should be performed.  

The examiner should report the measurement of the percentage of the entire body and the exposed areas affected by the service-connected seborrheic dermatitis to specifically include an opinion as to whether the percentage is 20 percent to 40 percent of the entire body or of the exposed areas.  

The examiner should report whether systemic therapy such as corticosteroids or other immunosuppressive drugs is required; and if so, the total duration required over the past 12 months.  

The examiner should report the location and size (length and width measured in inches or square centimeters) of any scars due to the seborrheic dermatitis.  Regarding the scars affecting the head, face, and neck, the examiner should identify whether there is visible or palpable tissue loss and/or gross distortion or asymmetry of one feature or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips.  

The examiner should specify if any of the following characteristics of disfigurement are present and if so list each: scar is 5 or more inches in length; scar is at least 1/4 inch wide at the widest part; surface contour of scar is elevated or depressed on palpation; scar is adherent to underlying tissue; in an area exceeding 6 square inches, the skin is either hypo- or hyper-pigmented, of abnormal texture (irregular, atrophic, shiny, scaly, etc.), underlying soft tissue is missing, and/or skin is indurated and inflexible. 

Regarding any scars other than the head, face, or neck, the examiner should report whether each scar is deep (associated with underlying soft tissue damage) or superficial; causes limited motion; unstable (frequent loss of covering over the scar); painful on examination; or causes limitation of function of the affected part.  The examiner should report the area or areas affected by the scars in square inches or centimeters.  Scars in widely separated areas such as on two or more extremities should be measured separately. 

The examiner must indicate the effect of the Veteran's service-connected skin disability on his occupational and social functioning and his ordinary activities of daily life.  A rationale must be provided for all findings and conclusions reached. The examiner should identify and explain the medical basis for the opinion, identify the pertinent evidence of record, and identify any applicable medical treatises referenced. 

3.  Readjudicate the issue on appeal.  If the benefit sought remains denied, the Veteran must be provided a supplemental statement of the case and an appropriate period of time for response. 

Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. 

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).




______________________________________________
T. D. JONES
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs