Citation Nr: 1325764 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 07-13 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a rating in excess of 30 percent for acne. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1988 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) that granted an increased rating of 30 percent for service-connected acne, effective May 15, 2005. In October 2009 the Veteran testified before a Veterans Law Judge (VLJ) who is no longer available to consider his appeal. In June 2012, the Board remanded the claim to offer him a hearing before the VLJ that will ultimately decide his appeal. Consequently, the Veteran testified before the undersigned VLJ in a video-conference hearing in June 2013. Transcripts of both hearings are associated with the claims file. Based on the foregoing, the Board finds that the agency of original jurisdiction substantially complied with the June 2012 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). By way of background, an August 1993 rating action granted service connection for acne, assigning a noncompensable disability evaluation. Within one year of this determination, the Veteran did not express disagreement with this initial disability evaluation, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b); 20.201 (2012); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). As such, the August 1993 rating action became final. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Veteran and his representative indicated that the Veteran's acne symptoms have worsened since his last VA examination in August 2005. Specifically, the Veteran testified at both hearings and via lay statement that his acne covers more than 40 percent of his entire body. He also contends that he has been receiving systemic therapy (namely oral doxycycline) on a daily basis for at least 12 months during the appeal period. The August 2005 VA examination report states that he was taking doxycycline orally "Bid," or twice daily. His medication was also described as continuous. Private treatment records from Dr. Demos confirm daily use of oral doxycycline from August 2006 through at least November 2006. VA's duty to assist includes a duty to provide a medical examination or to 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). The Veteran's acne was most recently assessed nearly eight years ago during the August 2005 VA examination. The Board finds a new examination is necessary to ascertain the current severity of the Veteran's service-connected acne. The Veteran testified that his acne has been treated at the Springfield VA Medical Center (VAMC). The most recent VA treatment records are dated March 2013. Therefore, on remand, Springfield VAMC treatment records relevant to acne dated from March 2013 to the present should be obtained. Finally, in a February 2007 lay statement the Veteran indicated that he was still being treated by Dr. Demos. However, treatment records from that provider have only been obtained through November 2006. Treatment records dated from November 2006 to the present should be obtained from that provider. Additionally, the Veteran should be provided an opportunity to identify any other private providers who have treated his acne during the appeal period. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify any providers (other than Springfield VAMC and Dr. Demos) who treated him for his acne after May 15, 2005. After securing any necessary authorization from him, obtain any additional identified treatment records. 2. Obtain treatment records from the Springfield VAMC dated from March 2013 to the present which are relevant to acne. 3. After securing any necessary authorization from the Veteran, obtain any relevant treatment records from Dr. Demos dated from November 2006 to the present. 4. After completing the above and associating any additional treatment records with the claims file, schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected acne. The examiner should be provided with the Veteran's claims file for review in conjunction with the examination, and should note such review in his or her report. The examiner should address the following questions: a) Has the Veteran's acne affected more than 40 percent of his entire body since May 15, 2005? If yes, please identify those periods to the extent possible. b) Please describe the frequency with which the Veteran required systemic therapy, including oral doxycycline prescribed for his acne, since May 15, 2005. Specifically, 1) Did the Veteran require constant (i.e., daily) or near-constant systemic therapy, such as corticosteroids or other immunosuppressive drugs, including doxycycline, for a 12-month period at any point between May 15, 2005 and the present? 2) If yes, please identify those 12-month periods to the extent possible. 5. Then, 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, return the case to the Board. 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 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). _________________________________________________ MICHAEL E. KILCOYNE 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).