Citation Nr: 1328991 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 10-22 829 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUES 1. Entitlement to an evaluation for bilateral defective hearing in excess of 30 percent prior toMay 11, 2012, and in excess of 40 percent from May 11, 2012. 2. Entitlement to an evaluation in excess of 10 percent for residuals of chloracne scarring, from the initial grant of service connection. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from July 1967 to April 1970. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2009 RO decision that granted service connection for residuals of chloracne scarring; rated 10 percent disabling, and a February 2011 decision that reduced the 30 percent evaluation then assigned for bilateral defective hearing to 20 percent; effective from January 4, 2011. By rating action in October 2011, the RO assigned an increased rating to 40 percent for bilateral defective hearing, effective from May 11, 2012, the date of a VA audiological examination. In February 2013, the Board restored the 30 percent evaluation for bilateral defective hearing that was reduced by the RO in February 2011, and remanded the issues currently on appeal for additional development. 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 Although further delay is regrettable, the Board finds that the February 2013 remand instructions were not fully accomplished and that additional development must be undertaken. Specifically, the AMC was directed to obtain a copy of the April 2011 VA audiological examination, so that the Board could evaluate the audiometric findings in light of the rating criteria for hearing loss. The Board pointed out that while the evidence of record included the VA audiologist's narrative summary of the examination, the report did not include the actual audiometric findings. Thus, the Board was unable to evaluate the severity of the Veteran's hearing loss on that examination. On remand, the AMC associated numerous medical reports with CAPRI records in virtual VA, including a duplicate copy of the April 2011 VA audiologist report that was previously of record, but which failed to include the actual audiometric findings. As noted in the prior remand, the April 2011 examination indicated that the audiometric findings were stored in the "Vista Apps" tab under "Audiogram Display" but that the Board was unable to access those files. Therefore, the AMC was instructed to obtain those records and associate them with the claims file (or in virtual VA). As that requested information has not been obtained, the Board is compelled to remand this issue for further development. Concerning the Veteran's skin disorder, the Board finds that the May 2013 VA skin examination was somewhat confusing and overall, was inadequate for rating purposes. Specifically, the examiner indicated that while the Veteran did not have any evidence of active chloracne, he did have recurring, intermittent cystic acne and sebaceous cysts which were secondary to his herbicide exposure due to damage to the underlying skin (i.e., hair follicles and sebaceous glands). The examiner indicated that the cystic acne scars were too numerous to count, but that none of them was more than one cm in diameter. When examined by the same VA physician in September 2009, the Veteran's scars involved his shoulders (upper back) and neck area. However, when examined in May 2013, the examiner did not mention any specific scars on the Veteran's shoulders or upper back, though she noted that he had a sebaceous cyst drained the previous year. Parenthetically, a private medical report received at the Board in April 2013, showed that the Veteran had a 5-cm infected sebaceous cyst on his right upper back drained in February 2012. On the May 2013 examination, the examiner indicated that, "even including a small area of the nape of the neck in [her] estimate, the total area of involvement remained just under 10% of body surface area." However, later in the report, the examiner indicated that the total body area was less than five percent, and that the total exposed area was less than five percent. The examiner did not offer any explanation for the different estimations. The evidence indicates that the Veteran's chloracne scar residuals primarily involve his shoulders and neck areas. The Veteran is currently assigned a 10 percent evaluation for scars on the head, face, or neck under Diagnostic Code (DC) 7800, based on evidence of one characteristic of disfigurement, presumably a scar that is a quarter of an inch at its widest point. A higher evaluation of 30 percent is warranted if the Veteran is shown to have two or three characteristics of disfigurement. However, the Veteran may also be assigned a separate rating for any scars "not of the head, face or neck" depending on the nature and extent of residual scarring, i.e., deep and nonlinear scars that are at least six square inches (DC 7801); scars that are superficial and nonlinear covering an area of 144 square inches (DC 7802), and scars that are painful and unstable (DC 7804). Consideration may also be given to rating the Veteran's scars by analogy to dermatitis or eczema under DC 7806, based on the total body area or total exposed areas affected by the scarring or based on the need and duration for systemic therapy. In this case, the Board remanded the appeal in February 2013, in part, to obtain a detailed description of all residuals associated with the Veteran's skin disorder from herbicide exposure in order to determine whether he was entitled to a higher rating under DC 7800, for scars of the head, face or neck, or whether he was entitled to a higher or separate rating under one of the other potentially applicable rating codes. For the reasons discussed above, the Board finds that the May 2013 VA examination was inadequate and failed to provide the necessary detailed information to evaluate the Veteran's skin disorder under all potentially applicable rating codes. The Board is required to discuss its reasons and bases for assigning a particular disability rating with reference to the criteria contained in the relevant diagnostic codes, and is not permitted to discuss factors outside the scope of the rating criteria, nor is it permitted to speculate on the presence or absence of the criteria on the basis of incomplete information. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Under the circumstances, the Board finds that the AMC's failure to fully comply with the Board's remand instructions violates VA's duty to assist under 38 C.F.R. § 3.159 and, in this case, the holding in Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. The AMC should obtain a copy of the April 2011 VA audiological examination report that includes the specific audiometric findings and speech discrimination scores. The AMC should also take appropriate steps to obtain all outstanding treatment records since March 2013 (the most recent VA outpatient report of record), and associate them with the claims file or virtual VA records system. 2. The Veteran should be afforded a VA dermatology examination to determine the current severity of any scar residuals associated with his chloracne. The claims folder should be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. All indicated tests and studies are to be performed. The examiner should provide a response to each of the following: a) For any scars of the head, face or neck, indicate which, if any, of the eight characteristics of disfigurement are present. (The AMC should provide the examiner with a list of the eight characteristic of disfigurement). b) For any scars not of the head, face or neck, describe the size of each scar and indicate whether any scar is deep, superficial, unstable or painful. c) The examiner should also estimate the percentage of exposed areas affected; the percentage of the entire body affected, and the percentage of each body part affected, i.e., each extremity, and posterior and anterior trunk areas (separately). (The description should include both percentage of total body surface and square inches or square centimeters of the skin affected). 3. After the requested development has been completed, the AMC should readjudicate the claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The Veteran 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). _________________________________________________ WAYNE M. BRAEUER 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).