Citation Nr: 1329195 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 09-43 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a skin disability other than seborrheic dermatitis, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 2. Entitlement to service connection for a right ankle disability, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 3. Entitlement to service connection for a left ankle disability, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 4. Entitlement to a disability rating in excess of 30 percent for depression (psychiatric disability). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1986 to September 2007, including service in the Southwest Asia theater of operations. These matters are before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2008 of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a skin disability, other than for seborrheic dermatitis, right ankle disability, left ankle disability and granted service connection for depression and assigned an initial 10 percent rating, effective October 1, 2007. In a March 2010 rating decision, the RO increased the evaluation of the Veteran's depression to 30 percent, effective October 1, 2007. Where a Veteran claims service connection for a specific disorder, any disorder reasonably encompassed by the Veteran's claim must be considered. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that one of the issues on appeal was previously characterized as service connection for tinea versicolor. In accordance with Clemons, the issue has been re-characterized above to include all skin disorders, other than the Veteran's service-connected seborrheic dermatitis. On his November 2009 Substantive Appeal, the Veteran requested the opportunity to testify at a Board hearing at the local VA office. He specifically indicated in a signed statement received by VA in September 2012 that he no longer wished to testify at a Board hearing. As such, the Board finds that his request for a Board hearing has been withdrawn. 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 served in the in the Southwest Asia theater of operations in the Persian Gulf. As to his skin, right ankle and left ankle disability, in March 2011 written argument, the Veteran's representative specifically asserted that service connection was warranted for each of these conditions as due to undiagnosed illness related to his service in the Persian Gulf. Unfortunately, to date, his claims have not been considered under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. Indeed, the May 2008 duty to notify letter, the September 2009 Statement of the Case and the March 2010 Supplemental Statement of the Case do not even cite to this law and regulation. As such, the Board finds that it is without discretion and must remand these claims so that the RO can provide the Veteran with appropriate notice of the evidence needed establish service connection under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. After associating any pertinent, outstanding records with the claims folder, the RO should then schedule the Veteran for appropriate VA examinations to determine whether he has a skin, right ankle and/or a left ankle disability that cannot be attributable to a known clinical diagnosis. Further if a diagnosis is offered based on the Veteran's symptoms, the examiner must opine as to the nature, extent, onset, and etiology of all skin, right ankle and left ankle pathology. As to his skin disability claim, the Veteran competently reports having chronic and recurrent skin problems since service. Although no pathology other than seborrheic dermatitis was found on the June 2008 VA examination, the United States Court of Appeals for Veterans Claims (Court) has taken judicial notice that skin disabilities, by their nature, are generally chronic and recurrent. See Ardison v. Brown, 6 Vet. App. 405 (1994). Moreover, the service treatment records show that the Veteran was seen for complaint and treatment of this condition. In this regard, the Board observes that a June 2001 service treatment entry shows that he had skin problems affecting his back and was diagnosed as having tinea versicolor. In addition, a March 2002 service treatment entry reflects that the Veteran was seen for complaints of a rash to his trunk and extremities of two months duration. The examiner indicated that the examination showed he had pruritis and indicated that the skin on his left wrist and midtrunk had mild erythematous macules and papules. The diagnosis was uticaria of unclear etiology. As to his psychiatric disability claim, the Veteran reports that his depression has worsened since the most recent VA psychiatric examination, which was conducted in June 2008. As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his psychiatric disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11- 95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand this claim. Accordingly, the case is REMANDED for the following action: 1. Pursuant to VA's duty to notify, provide the Veteran with the criteria required for the claims asserted based on Persian Gulf War service under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. 2. Contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his skin, right ankle and left ankle problems as well as to his psychiatric disability. Take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them physically or electronically with the claims file. Any negative response should be in writing and associated with the claims file. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first- hand knowledge, and/or were contemporaneously informed of his in- service and post-service skin, right ankle and left ankle as well as the nature, extent and severity of his psychiatric disability, to include the impact on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for an appropriate VA examination(s) that addresses the nature, extent, onset, and/or etiology of any right ankle, left ankle and skin disability found to be present or present since he filed his claims of service connection in May 2008. The claims folder should be made available and reviewed by the examiner. The examiner(s) must discuss any reports of a recurrence of symptoms since service and state whether it is at least as likely as not that any right ankle, left ankle and skin disability, other than seborrheic dermatitis, can be attributed to a known clinical diagnosis. If the examiner attributes any right ankle, left ankle and skin disability, other than seborrheic dermatitis to a known clinical diagnosis, the examiner must state whether it is at least as likely as not that any such condition is related to or had its onset in service. In doing so, the examiner(s) must acknowledge and discuss his or her findings with any lay report of a recurrence of symptoms since service. As to the Veteran's skin disability claim, the examiner must specifically comment on the June 2001 and March 2002 service treatment record entries, to specifically include the two month duration of symptoms. 5. Afford the Veteran a VA psychiatric examination to determine the extent and severity of his psychiatric disability. The claims folder should be made available to and reviewed by the examiner. All indicated tests should be performed. The examiner should report all pertinent findings and estimate the Veteran's Global Assessment of Functional (GAF) Scale score. The examiner should set forth a complete rationale for all findings and conclusions in a legible report. 6. Then readjudicate the appeal. If the issues on appeal remain denied, the Veteran and his representative must be provided a supplemental statement of the case. The Veteran must then be given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. 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). _________________________________________________ STEVEN D. REISS 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).