Citation Nr: 1325348 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-10 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a skin disorder of the fingers. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to October 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In July 2011 and January 2013, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. In March 2011, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of the hearing is associated with the claims file. The July 2011 appeal also addressed a claim of entitlement to service connection for posttraumatic stress disorder. This claim was granted in an August 2012 rating decision and is, therefore, no longer before the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The Board's review of the record since the remand in January 2013 indicates that yet another remand is necessary. The Board regrets the continued delay in resolution of the Veteran's claim. In the January 2013 remand, the Board requested that the Veteran be scheduled for a VA examination to assess the etiology of his skin disorder. The examiner was then to provide an opinion as to whether it is at least as likely as not that Veteran's currently diagnosed dermatitis/eczema is causally or etiologically a result of his military service as opposed to its being more likely the result of some other cause or factors. The Board requested this opinion because none of the opinions addressed the Veteran's subjective reports of having skin symptoms on his hands since service. Specifically, the Board ordered that: The examiner must not only document the Veteran's current history of having had skin symptoms in service and in the years since service, but he or she must consider and discuss those complaints in the opinion. If the examiner finds the Veteran's claims inconsistent or implausible when viewed in the context of the complaints, treatment, and diagnoses documented in and after service, the examiner must explain the reasons for that finding. The February 2013 VA examination report stated that the Veteran gave a history of a hand rash since service. However, in the opinion the examiner stated that the Veteran had mild hand eczema with no treatment while in the military and no skin findings at separation physical examination. The examiner also said that the cause of hand eczema was unknown, but that it was a common disorder. He indicated that it can be related to hay fever or asthma. The examiner concluded that without documentation of hand eczema during service or within one year of discharge from service, the evidence supports the conclusion that the Veteran's hand eczema is not related or caused by military service. The Board observes that the examiner who performed the February 2013 VA examination was the same examiner who performed the June 2012 VA skin examination. In June 2012, this examiner stated that there was no evidence of acne or chloracne either presently or in service. Additionally, the examiner stated that there was no eczema in service. Therefore, he opined that the present eczema was not caused by or a result of military service. Thus, both the June 2012 and February 2013 opinions are essentially the same as they rest, largely, on lack of documentation of hand eczema in service. The Board acknowledges the February 2013 comment that eczema may be related to hay fever and asthma; however, as the Veteran has a neither a history of hay fever nor a history of asthma, the comment is not relevant to this particular Veteran's case. Moreover, while the examiner noted the Veteran's subjective complaints of a history of eczema since service in the report, the examiner did not address those complaints in the opinion as requested. For these reasons, the Board determines that the February 2013 VA opinion did not comply with the Board's January 2013 remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Consequently, the appeal must be remanded so that another VA opinion may be obtained. Moreover, while skin symptoms of the palms had been noted previously, the February 2013 VA examiner specifically diagnosed palmar keratoderma, and designated the disability as genetic. The disability was not noted upon the Veteran's entrance in to service or prior to service. Only clear and unmistakable error may rebut the presumption that the Veteran was sound at service entrance. Therefore, the Board requires an opinion specific to the etiology of the Veteran's skin disability of the palms as well. Accordingly, the case is REMANDED for the following action: 1. Send the claims file to an examiner other than the examiner who completed the June 2012 and February 2013 examinations to obtain an opinion as to the etiology of the Veteran's skin disorder. Upon a review of the record, the examiner should respond to the following: a. Is it at least as likely as not (50 percent probability or more) that Veteran's currently diagnosed eczema/dermatitis is causally or etiologically a result of his military service as opposed to its being more likely the result of some other cause or factors? b. Does the evidence clearly and unmistakably establish that the Veteran's diagnosed palmar keratoderma preexisted service? If so, was it clearly and unmistakably not aggravated by service? The examiner is instructed that to find that the disability in question clearly and unmistakably preexisted service and was not aggravated by service, the evidence must be obvious, manifest, and undebatable in establishing that it preexisted service and that it was not aggravated by service. See Cotant v. Principi, 17 Vet. App. 116 (2003). Aggravation exists when there is an increase in disability during such service that is not due to the natural progress of the disease. Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered aggravation unless the underlying condition, as opposed to symptoms, is worsened. Aggravation may not be conceded where the underlying disability underwent no increase in severity during service. If the examiner finds that the evidence does not clearly and unmistakably establish that the Veteran's palmar keratoderma preexisted service or finds that it did pre-exist service but that it was not clearly and unmistakably not aggravated by service, he or she should also provide an opinion as to the following: Is it at least as likely as not that the Veteran's palmar keratoderma had its onset in service or is otherwise related to his military service? Onset of the disability may occur during service even if the Veteran would have developed the disability had he not served in the military. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for any opinion advanced must be provided. The examiner must not only document the Veteran's current history of having had skin symptoms in service and in the years since service, but he or she must consider and discuss those complaints in the opinion. If the examiner finds the Veteran's claims inconsistent or implausible when viewed in the context of the complaints, treatment, and diagnoses documented in and after service, the examiner must explain the reasons for that finding. The Board notes that skin disorders may be recurrent and not necessarily present at examination. The examiner is advised that the February 2013 examiner found and diagnosed mild eczema and palmar keratoderma. For the purposes of this adjudication, any skin diagnosis assigned to the hands during the appeal period, i.e., since the Veteran filed his claim, is considered a current diagnosis. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). If it is determined that the opinion cannot be obtained without another clinical examination, such examination should be scheduled. 2. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. 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). ______________________________________________ ROBERT C. SCHARNBERGER 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).