Citation Nr: 1327068 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 93-15 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating in excess of 60 percent for service-connected neurodermatitis disseminata for the period subsequent to August 30, 2002. 2. Entitlement to an initial disability rating in excess of 10 percent for service-connected fascial defect and anterior medial scar of the right lower extremity with degenerative joint disease. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: David G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1958 to January 1963. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). This case has been before the Board on multiple occasions. Most recently, in March 2007, October 2008, and October 2010, the Board remanded the issues of entitlement to a disability rating in excess of 60 percent for neurodermatitis disseminata for the period subsequent to August 30, 2002 and entitlement to an initial disability rating in excess of 10 percent for a fascial defect and anterior medial scar of the right lower extremity with degenerative joint disease, for additional development. In a March 2012 decision, the Board denied the claim for a disability rating in excess of 50 percent for neurodermatitis disseminata prior to August 30, 2002, denied the claim for a disability rating in excess of 60 percent for neurodermatitis disseminata from August 30, 2002, granted a disability rating of 20 percent for primary open angle glaucoma, and denied a claim for a disability rating in excess of 10 percent for fascial defect and anterior medial scar of the right lower extremity with degenerative joint disease. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In October 2012, the Veteran's attorney and a representative of the VA Office of General Counsel, on behalf of the Secretary, filed a Joint Motion for Partial Remand (Joint Motion). The Joint Motion for Partial Remand requested that the portion of the Board's decision wherein the Board denied the claim for a disability rating in excess of 50 percent for neurodermatitis disseminata prior to August 30, 2002 and the grant of a disability rating of 20 percent for primary open angle glaucoma, be undisturbed. In an October 2012 Order, the Court granted the Joint Motion, partially vacated the Board's March 2012 decision, and remanded the matters of entitlement to a disability rating in excess of 60 percent for neurodermatitis disseminata for the period subsequent to August 30, 2002 and entitlement to an initial disability rating in excess of 10 percent for a fascial defect and anterior medial scar of the right lower extremity with degenerative joint disease to the Board for action consistent with the Joint Motion. The Veteran testified at a Central Office hearing in November 2004. The transcript is associated with the claims file. The Veterans Law Judge who conducted the hearing retired and the Veteran was informed of the opportunity to appear for another hearing before the Veterans Law Judge who would ultimately decide this case. The Veteran responded that he did not want to appear for another hearing. See August 2006 response. 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 First, with respect to the issue of entitlement to a disability rating in excess of 60 percent for neurodermatitis disseminata for the period subsequent to August 30, 2002, the Joint Motion indicated that the Board did not comply with a prior remand directive, in violation of Stegall v. West, 11 Vet. App. 268 (1998). The parties noted that the October 2010 remand requested that the RO issue a Supplemental Statement of the Case (SSOC) with respect to the issue. A SSOC was not issued. Therefore, the parties indicated that a remand was warranted to issue a SSOC and, consequently, the Board must remand the claim to issue a SSOC. Furthermore, as it has been approximately ten years since the Veteran's last VA skin examination, the Board finds that the Veteran should also be afforded a VA examination to determine the current nature and severity of his service-connected neurodermatitis disseminata. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that VA should have ordered a contemporaneous examination of veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). With respect to the claim of entitlement to an initial disability rating in excess of 10 percent for fascial defect and anterior medial scar of the right lower extremity with degenerative joint disease, the parties indicated that the Board failed to ensure compliance with the March 2007 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). The parties noted that the March 2007 remand requested that the Veteran be afforded an orthopedic examination for his service-connected disability. The examiner was instructed to provide a diagnosis for each separate and distinct disability related to the Veteran's disability and indicate what symptomatology is related to what disability. The examiner was requested to discuss whether there was pain on movement, swelling, tenderness, deformity, or atrophy of disuse. The examiner was also requested to determine whether there was weakened movement, excess fatigability, or incoordination caused by the disability. The parties noted that the Veteran was provided a VA examination in September 2009. However, the parties explained that the examiner did not discuss whether there was pain on movement, swelling, tenderness, deformity, or atrophy of disuse and the examiner did not indicate whether there was weakened movement, excess fatigability, or incoordination caused by the disability. Finally, the parties noted that the examiner provided diagnoses of hallux valgus and right pes planus, but provided no opinion regarding the relationship between these diagnoses and the Veteran's service-connected disability and failed to address what symptomatology was associated with each disability. The parties agreed that the examination was inadequate and the March 2007 remand was not completed. See Stegall, id. Therefore, the parties determined that the issue must be remanded to provide an adequate medical examination consistent with the March 2007 remand. In light of the Joint Motion, the Board will remand the issue for an appropriate VA examination. Finally, in the Board's February 2005 remand, the issue of entitlement to a TDIU was remanded to obtain updated information on the Veteran's recent employment and to provide a VA examination. A review of the claims file shows that the Veteran was sent a notification letter and a request for a general medical examination for TDIU was initiated in May 2005. However, the evidence does not reflect whether such an examination was scheduled or whether the claim of entitlement to a TDIU was readjudicated. Therefore, the remand directives were not completed and the Board must remand the issue for compliance with the February 2005 remand. See Stegall, id. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran an application for a TDIU and request that he provide updated information on recent employment to include names and dates of recent jobs and annual income from those jobs. 2. Make efforts to locate any examination report conducted with respect to entitlement to a TDIU as shown in the May 2005 request. If no examination report is found, the Veteran should be informed of the efforts to locate the report and given the opportunity to respond. 3. Obtain updated VA treatment records from the Nashville, Tennessee VA Medical Center. All efforts to obtain these records must be documented in the file and the Veteran notified of any negative response. 4. Schedule the Veteran for a VA skin examination to determine the current severity of his service-connected neurodermatitis disseminata. The claims folder must be made available to and reviewed by the examiner. All indicated studies should be performed. The examiner should identify and describe in detail all symptoms attributable to the Veteran's skin disability, to include any scars. The examiner must report the percentages of the Veteran's entire body and of the exposed areas that are affected by the service-connected skin disability. With regard to the head, face and neck; the examiner should note whether there is visible or palpable tissue loss, gross deformity or distortion of any features or paired features, or any of the 8 characteristics of disfigurement (found in Note 1, 38 C.F.R. § 4.118, DC 7800). The examiner should also note whether the Veteran's skin disability has required the use of systemic therapy, such as corticosteroids or other immunosuppressive drugs, and if so, the extent of that usage during the past 12-month period. 5. Schedule the Veteran for a VA examination for the service-connected fascial defect and anterior medial scar of the right lower extremity with degenerative joint disease. The claims file should be provided to the examiner for review in connection with the examination. The examiner should indicate that the claims file was reviewed. Provide a diagnosis for each disability related to the Veteran's service-connected fascial defect and anterior medial scar of the right lower extremity with degenerative joint disease, to include any diagnosis related to the right ankle, and indicate what symptomatology is related to what disability. The examiner must indicate whether the diagnoses of hallux valgus and right pes planus are part and parcel to the service-connected disability. For each musculoskeletal disability diagnosed, determine the limitation of motion of the affected joint and note whether repeated range of motion testing results in additional limitation of motion, or in functional loss, or whether there is weakened movement, excess fatigability, or incoordination, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. The examiner must provide an opinion as to whether pain could significantly limit functional ability during flare-ups or on repeated use over a period of time, and an estimate of such functional impairment in terms of additional range of motion loss. Indicate whether the Veteran's service-connected disability affects a muscle group and identify which muscle groups, if any, are affected. Note whether the overall degree of injury to each muscle group would be considered slight, moderate, moderately severe, or severe. In so doing, state whether or not any cardinal signs and symptoms of a muscle disability is shown, including loss of power, weakness, lowered threshold of fatigue, fatigue, pain, impairment of coordination, and uncertainty of movement. The examiner must also describe the manifestations of the Veteran's scar. Provide a complete rationale for any opinion expressed. 6. Schedule the Veteran for a VA examination with respect to the claim of entitlement to a TDIU. The claims folder must be made available to and reviewed by the examiner. All indicated studies should be performed. The examiner must provide an opinion as to whether the Veteran's service-connected disabilities, in combination, render the Veteran unable to secure or follow substantially gainful employment. A complete rationale must be provided for any opinion reached. 7. Issue a supplemental statement of the case with respect to the issues on appeal. Specifically, address whether the Veteran is entitled to a disability rating in excess of 60 percent for neurodermatitis disseminata, to include extraschedular consideration, which takes into account all of the evidence since the last supplemental statement of the case. An appropriate amount of time should be provided for a response. Thereafter, the case should be returned to the Board for further consideration, if 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). _________________________________________________ L.M. BARNARD Acting 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).