Citation Nr: 1326311 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 11-09 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for aggravation of a skin condition, to include scarring and residuals of cystic acne. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Marne Marotta, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1961 to July 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2010 and January 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND On the Veteran's April 1961 entrance examination, the examiner noted moderate acne and indicated that the Veteran had abnormal identifying body marks, scars or tattoos. On the concurrent Report of Medical History, the Veteran also indicated he had experienced boils prior to service or at the time of the entrance examination. The Veteran's service treatment records also reflect he was treated for boils on the back of his neck in December 1963. The Veteran's July 1965 separation examination noted severe acne, and the examiner indicated that the Veteran had abnormal identifying body marks, scars or tattoos. Post-service medical evidence includes findings and treatment of boils. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153 (2012); 38 C.F.R. § 3.306. This standard is further explained in 38 C.F.R. § 3.306(b), which provides that clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where a pre-service disability underwent an increase in severity during service. In other words, if the presumption of aggravation arises, the burden shifts to the government to rebut the presumption of in-service aggravation by clear and unmistakable evidence. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Wagner v Principi, 370 F3d. 1089, 1096 (Fed. Cir. 2004). A June 2010 VA examination diagnosed the Veteran with scarring residuals of cystic acne, moderately deep on the neck and superficial on the upper torso. The examiner determined that it was less likely than not that the condition was permanently aggravated beyond its natural progression by service because "once moderate acne established, progression is likely." The Board finds the June 2010 VA opinion inadequate because it appears to be a generic statement rather than an opinion specifically addressing this Veteran's condition and does not provide clear and unmistakable evidence on the question of whether any increase in disability during service was due to the natural progression of the preexisting condition. Wagner, 370 F.3d at 1096. Thus, another opinion is required. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following action: 1. The RO should ask the Veteran to identify and provide release forms to obtain any and all treatment records related to the Veteran's skin condition, to include scarring of residual cystic acne. If release forms are provided, the RO should make efforts to obtain these identified records specifying that actual treatment records, as opposed to summaries, are needed. All efforts to obtain these records, including follow-up requests, if appropriate, should be fully documented. 2. After obtaining the above records, to the extent available, the RO should schedule the Veteran for the appropriate VA examination for the claimed skin condition to determine the extent and likely etiology of any conditions found. Based on the examination and review of the record, the examiner should specifically address the following: (a) Does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the Veteran's preexisting skin condition, to include residual scarring of cystic acne, was not aggravated by service or that any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. (b) If the answer to (a) is no, is it at least as likely as not (likelihood 50 percent) that the Veteran's skin condition, to include residual scarring of cystic acne, is related to service? The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. The RO should then readjudicate the Veteran's claims. If the claims remain denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned 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 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). _________________________________________________ M. E. LARKIN 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).