Citation Nr: 1325272 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-04 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for urticaria with angioedema and herpes simplex (claimed as angioneurotic edema and acute gingivostomatitis). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from July 2003 to July 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The issue of entitlement to service connection for hypertension was also granted by the RO in March 2009. The Veteran submitted a timely Notice of Disagreement to this issue and the issue currently on appeal. The RO issued a Statement of the Case in January 2010. However, in the January 2010 Substantive Appeal, the Veteran stated he was only appealing the issue of entitlement to an increase disability rating for service-connected urticaria with angioedema and herpes simplex (claimed as angioneurotic edema and acute gingivostomatitis). As such, the issue of entitlement to service connection for hypertension is not before the Board for review. 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 Unfortunately, a remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2012). The Veteran is currently rated at 10 percent disability for the urticaria with angioedema and herpes simplex (claimed as angioneurotic edema and acute gingivostomatitis). According to the July 2013 Brief (located on Virtual VA), he and his representative contend his current rating does not accurately reflect his current symptomatology as his condition has worsened since the December 2008 VA examination. The Board notes that the Veteran was indeed afforded a VA examination in December 2008, over four years ago. Therefore, the Veteran should be afforded a VA examination to determine the current severity of his service-connected urticaria with angioedema and herpes simplex (claimed as angioneurotic edema and acute gingivostomatitis). 38 C.F.R. § 3.159(c)(4) (2012); Green v. Derwinski, 1 Vet. App. 121 (1991) (duty to assist may include conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one). Where the record does not adequately reveal the current state of disability, the fulfillment of the duty to assist includes providing a thorough and contemporaneous medical examination that considers the claimant's prior medical examinations and treatment. See Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994). The Board also recognizes that records may be absent from the claims file. The RO must secure any outstanding records and associated them with the claims files. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Board notes that VA treatment records since March 2009 have not been associated with the claims file. Thus, on remand, the RO must secure any outstanding records and associated with the claims file. All private treatment records that have not been associated with the claims file must also be obtained as well. Accordingly, the case is REMANDED for the following action: 1. Contact all appropriate VA medical facilities, and obtain and associate with the claims file all outstanding records of treatment, namely VA treatment records since March 2009. In addition, obtain all private treatment records which have not been obtained already. The AMC should contact the Veteran and request that he provide a completed release form (VA Form 21- 4142) authorizing VA to request copies of any treatment records from any private medical providers who have treated him for his claimed conditions. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice must be provided to the Veteran. The notice must contain the identity of the records the VA was unable to obtain, an explanation of the efforts the VA made to obtain the records, a description of any further action the VA will take regarding the claim and a notice that the Veteran is ultimately responsible for providing the evidence. The AMC should also inform the Veteran that he can also provide alternative forms of evidence. 2. After any outstanding records have been obtained and associated with the claims file, schedule the Veteran for an examination by an appropriate medical professional to evaluate the current severity of his urticaria with angioedema and herpes simplex. The examiner should also ascertain whether the Veteran's disability warrants or is indicated by: (1) recurrent debilitating episodes occurring at least four times during the past 12-month period and requiring intermittent systemic immunosuppressive therapy for control; or (2) recurrent debilitating episodes occurring at least four times during the past 12-month period despite continuous immunosuppressive therapy. 38 C.F.R. § 4.118, Diagnostic Code 7825. A clear rationale for all opinions should be provided, along with a discussion of the facts and medical principles. Copies of all pertinent records in the Veteran's claims file, or in the alternative the claims file, must be made available to the examiner for review in connection with the examination. All appropriate testing must be conducted and these results must be included in the examination report. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report. 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be 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). _________________________________________________ WAYNE M. BRAEUER 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).