Citation Nr: 1327023 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 09-46 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for skin disability (rash) of the right leg. 2. Entitlement to an evaluation in excess of 20 percent for status post fracture, left tibia and fibula, with traumatic arthritis. 3. Entitlement to service connection for a seizure disorder. 4. Whether new and material evidence has been submitted to reopen a previously disallowed claim of entitlement to service connection for residuals of a concussion/head injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from November 1978 to November 1981, and from October 1984 to October 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board observes that service connection for a skin disability (rash) of the right leg was denied by an unappealed November 2006 rating decision. As such, the Veteran would typically be required to submit new and material evidence to reopen his claims for service connection. See 38 C.F.R. § 3.156(a) (2012). However, during the course of the appeal, additional service treatment records have been received, in particular a sick slip documenting a rash on the right foot during service. This record included findings that may be relevant to the Veteran's assertions that he first developed a skin disability of the right leg during service. Where VA receives relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement of new and material evidence. See 38 C.F.R. § 3.156(c) (2011). This regulation contemplates official service department records which presumably have been misplaced and have now been located and forwarded to VA. In essence, the finality of any previous decision is vitiated by the association of additional, pertinent service department records, and the claims must be reconsidered. In other words, the submission of new and material is not required in this case for VA to consider the claim on the merits. Accordingly, rather a claim to reopen, the Board will consider the Veteran's claim on the merits. In a statement received in November 2009, the Veteran asserted that he was entitled to a 100 percent rating for his service-connected residuals of an appendectomy. Currently, his residual scar is rated as noncompensable. Thus the issue of entitlement to an increased disability for his scar has been raised by the record. Additionally, the Veteran has asserted that he is totally disabled due to, inter alia, his service-connected appendectomy scar and left leg disability. Thus, the issue of entitlement to a total disability rating due to individual unemployability has arguably been raised by the record. As these new issues ([1] entitlement to an increased rating for residuals of an appendectomy and [2] entitlement to TDIU) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). , the Board does not have jurisdiction over them at this time. Accordingly, they are referred to the AOJ for appropriate action. 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 Skin Disability The Veteran seeks service connection for a skin (rash) disability of the right leg. The record includes a September 1987 sick slip indicating that he was seen for skin rash of the right leg, the slip further shows that he was returned to duty. However, the remainder of the Veteran's service treatment records, to include the report of service separation examination also dated in September 1987, do not suggest the presence of a lower right extremity skin disability. On the contrary, the service separation examination reflects normal clinical evaluation of the skin and the Veteran denied any history of skin diseases on the history part of that exam. Post service treatment records show that the Veteran was seen by VA for pruritic rash on the upper arms and foot of 2-3 weeks duration in February 1999. The assessment was pityriosis rosea like eruptions, rule out drug induced. On follow-up a few days later, he was diagnosed with dermatitis, nonspecific, resolving with prescriptive ointment. A skin biopsy was diagnosed as subacute to chronic dermatitis. A VA treatment note dated in February 2003 reflects right foot rash, treated with clotrimazole cream. An August 2008 VA treatment note reflects a history of rash and physical findings for hyperpigmented rash over the right side of the Veteran's body. On remand, the Veteran should be afforded a VA examination to ascertain the etiology of any current right lower extremity skin disability. Increased Rating for Left Leg Disability and Service Connection for Seizures and Residuals of a Concussion/Head Injury The Court of Appeals for Veteran Claims has held that, when a notice of disagreement has been filed, the RO must issue a Statement of the Case (SOC). Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Here, the RO most recently denied, in July 2009, entitlement to an evaluation in excess of 20 percent for left leg disability and service connection for seizures and concussion/head injury, which had been previously denied in an unappealed decision. The Veteran filed a notice of disagreement with that rating decision in November 2009. No SOC has been issued in regards to these claims and, therefore, remand is required. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be sent an SOC on the issues of entitlement to an evaluation in excess of 20 percent for left leg disability and service connection for seizures and concussion/head injury. Only if a timely substantive appeal is received, then the RO shall certified the issues to the Board. 2. Contact the Veteran and obtain the names and addresses of all medical care providers who treated him for his claimed right leg rash since separation from active duty. After obtaining proper authorization, obtain any relevant records from these providers that are not already of record in order to ensure that complete records from these facilities are of record. If, after making reasonable efforts to obtain named records that are unable to be obtained, notify the Veteran and (a) identify the specific records that are unable to be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 3. Thereafter, schedule the Veteran for VA a dermatological examination to determine the nature and etiology of the Veteran's claimed right leg skin disability. The claims folder must be made available to the examiner(s) for review of the pertinent evidence prior to the examination, and the examiner should acknowledge such review in the examination report. All indicated studies should be performed, and all manifestations of current disability should be described in detail. The examiner should address the following inquiries: (a) Identify with specificity any skin disability of the right lower extremity that is currently shown, or indicated in the record at any time since August 2006. (b) For each skin disability of the right lower extremity identified, indicate whether it as least as likely as not (i.e., probability of 50 percent or greater) that the disability is related to the Veteran's active military service, to include his complaints of a skin rash in September 1987. The opinion should contain comprehensive rationale based on sound medical principles and facts. If the examiner is unable to provide any requested opinion, he or she should explain in detail why such opinion could not be reached. 4. After undertaking any additional development deemed by it to be appropriate, readjudicate the Veteran's claim for service connection for a skin disability of the right leg. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the appeal should 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). _________________________________________________ DAVID L. WIGHT 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).