Citation Nr: 1327292 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 07-12 058 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for seborrheic dermatitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from February 1985 to March 1989. This matter comes to the Board of Veterans' Appeals (Board) from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columba, South Carolina. Jurisdiction over the matter was subsequently transferred to the RO in Seattle, Washington. In connection with her appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in March 2011. A transcript of the hearing is associated with the claims files. 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 The Veteran's service records show that she had a pre-existing six month skin rash, diagnosed as tinea versicolor, at the time of her January 1985 enlistment examination. The Veteran was later referred to dermatology for treatment of a rash on her face, back, and scalp in March 1985; she was diagnosed with seborrheic dermatitis. The discharge examination in March 1989 noted a history of skin disease. Post-service treatment records indicate continued diagnoses of and treatment for seborrheic dermatitis. However, the Veteran asserts, and testified before the undersigned VLJ, that the fungal infection (tinea versicolor) she had at enlistment is not related to her current seborrheic dermatitis. She also states that the seborrheic dermatitis started while she was in boot camp and not prior to service. She maintains that she did not have any skin condition of the head and scalp prior to entering service. When this matter was last before the Board, it was remanded to afford the Veteran a VA examination, as none had yet been afforded to her. 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In March 2013, the Veteran was afforded a VA examination. A review of the March 2013 VA examination report, i.e. Disability Benefits Questionnaire (DBQ), shows that the examiner was asked to "[d]escribe the history (including onset and course) of the Veteran's skin conditions." In response to this query, the examiner related that the Veteran reported at the time of the examination that during basic training in March 1985 she had developed a rash at the perimeter of her hairline along her forehead, and was diagnosed as having seborrheic dermatitis. The examiner ultimately rendered a negative etiological opinion, stating that the condition existed prior to service, solely based upon a March 1985 service treatment record that noted a complaint of a one year history of scaly pruritic eruptions of the scalp. VA's duty to assist includes providing an adequate examination when such an examination is indicated. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). An examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl, 21 Vet. App. at 123. The Veteran should be afforded a new examination. As outlined above, the Veteran asserts that although she had a skin condition prior to entry, she has identified that it is not the same that she currently experiences, i.e. seborrheic dermatitis. The VA examiner noted that the Veteran had informed her that she had incurred seborrheic dermatitis in service and that a March 1985 service treatment record stated that she had a 1 year prior history of scaly, pruritic eruptions on the scalp. However, the examiner did not obtain much of a history of the Veteran's competent lay observations regarding her pre-service skin symptoms, which she asserts involved tinea versicolor of the back, but not anything involving her scalp. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, as the VA examination appears to be based upon an inadequate history, the Veteran should be afforded a new VA examination to address her claim, at which time it is imperative that a history of in-service and post-service symptomatology and treatment be obtained from the Veteran. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). Moreover, in rendering any opinion, the examiner must specifically consider the presumption of soundness. When no defect is noted at the time a Veteran enters service, the presumption of soundness arises and the Veteran is presumed to have been sound upon entry. The presumption of soundness may only be rebutted by clear and unmistakable (i.e., undebatable) evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304(b) (2012). A history of the pre-service existence of a condition recorded at the time of the entrance examination does not constitute a notation of such a condition, and a claimant's condition is not "noted" when the induction examination does not contain a medical diagnosis by the examiner. See 38 C.F.R. § 3.304(b)(1). As seborrheic dermatitis was not diagnosed by the examiner on the entrance examination, the Veteran is presumed sound at entry. Accordingly, it must be determined whether the presumption of soundness is rebutted by clear and unmistakable evidence. The Board also notes that the most recent VA treatment records in the claims files are dated from November 2012; accordingly, any outstanding treatment records should be obtained on remand. Finally, the Veteran has previously indicated a preference for the VA medical center (VAMC) in Seattle, Washington; therefore, if possible on remand the Veteran should be scheduled for a VA examination at the Seattle facility. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain a copy of any outstanding VA or private records pertaining to treatment or evaluation of the Veteran's claimed disability. 2. Schedule the Veteran for a VA examination to be conducted at the Seattle VAMC, if possible, for the purpose of ascertaining the presence, nature and likely etiology of seborrheic dermatitis. The examiner should obtain a complete, pertinent history from the Veteran to include pre-service symptoms and in-service symptoms, and review the claims file in conjunction with the examination, giving particular attention to her service treatment records, lay assertions, and the pertinent medical evidence. The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion and the examination report should note that the claims file was reviewed. The examiner is asked to address the following: a. State whether it is clear and unmistakable (obvious, manifest, and undebatable) that seborrheic dermatitis pre-existed active service. b. If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing seborrheic dermatitis WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress. c. If any responses requested above are negative, provide an opinion as to whether seborrheic dermatitis at least as likely as not (a probability of 50 percent or greater) began in or is related to active service, The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. After the development directed above has been completed to the extent possible, readjudicate the issue on appeal. If the benefits sought on appeal are not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. (CONTINUED ON NEXT PAGE) The appellant 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). _________________________________________________ BETHANY L. BUCK 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).