Citation Nr: 1329651 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 07-31 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for a skin disability, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from April 1969 to February 1975. This matter comes before the Board of Veterans' Appeals (Board) from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Salt Lake City, Utah, RO now has jurisdiction over this matter. In a February 2009 decision, the Board denied the Veteran's claims of service connection for diabetes mellitus to include as secondary to herbicide exposure and a skin disability to include as secondary to herbicide exposure. The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2010 Memorandum Decision, the Court set aside the Board's decision and remanded this case to the Board for readjudication. In May 2011, the Board remanded the case for compliance with the Court decision. In January 2009, the Veteran testified at a video conference hearing before another Veterans Law Judge (VLJ), who has since left the Board. A transcript is of record. In August 2012, the Veteran was notified that the VLJ was no longer employed by the Board and was asked if he wished to have another hearing before another VLJ. In September 2012, the Veteran responded that he did not wish to appear at another hearing. The appeal was returned to the Board in November 2012, at which time the Board granted entitlement to service connection for diabetes mellitus. This represents a complete grant for this issue, and it is no longer before the Board. The Board also remanded the claim of service connection for a skin disability to include as secondary to herbicide exposure for additional development. The appeal has now been returned to the Board for further consideration. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. Regrettably, the appeal is once more REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board in November 2012 determined that the April 2012 examination and opinion with respect to the Veteran's claimed skin disability was insufficient. Specifically, the opinion stated that there was no evidence of a skin disorder in the Veteran's service treatment records. However, the service treatment records contain an October 1969 entry showing that the Veteran was treated for a widespread rash. He was also treated for warts in August 1971 and for verrucae in February 1972. Given that the April 2012 opinion was based in part on an inaccurate review of the record, the Board determined that the claims folder must be returned to the April 2012 examiner or, if unavailable, to another examiner in order for them to comment whether or not these records would change her diagnoses or opinions. The remand requested the examiner to specifically address the rash and warts that were noted in service. In an attempt to complete the development requested by the remand, the claims folder was provided to a second examiner in February 2013. The examiner stated that the claims folder was reviewed. Unfortunately, in the reasons and bases for her opinion that the Veteran's current skin disabilities are not due to active service, she again reports that the service treatment records are negative for evidence of a rash and warts. Although she says that the Veteran relates he did not have any problems with warts in service and that there is no current diagnosis of warts, she does not acknowledge the October 1969 treatment for a rash or discuss any potential relationship between that rash and the current skin disabilities. The November 2012 remand requested that this be accomplished. Given the examiner's description of the service treatment records as not having any signs of rashes or warts, the Board must conclude that the opinion is once again based on an inaccurate record and remains insufficient for appellate review. A May 2013 addendum provided a negative opinion regarding a possible relationship between the skin disability and the service connected diabetes mellitus, but did not comment on the rash or warts that were treated in service. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the Court. The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. The claims file should be returned to the same examiner who conducted the April 2012 skin examination or the February 2013 skin examination. The examiner should review the additional evidence associated with the claims file as well as the service treatment records. The examiner must specifically review and address the treatment of a skin rash (as shown in October 1969 service treatment records) and warts/verrucae (as shown in August 1971 and February 1972 service treatment records) in service and indicate whether these incidents in any way alter their prior opinion that the Veteran's skin disorder was not related to service. A detailed rationale for all opinions expressed should be provided. If the same examiners are not available, the Veteran should be scheduled for another appropriate VA examination to determine the nature, extent and etiology of any currently manifested skin disability. The claims file must be made available to the examiner for review in connection with the examination. After examining the Veteran and reviewing the claims file, the examiner should clearly identify all skin disabilities. Further, the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that any current skin disability is related to service, to include exposure to herbicides. A detailed rationale for all opinions expressed should be provided. The examiner must specifically review and address the treatment of a skin rash (as shown in October 1969 service treatment records) and warts/verrucae (as shown in August 1971 and February 1972 service treatment records) in service. 3. In the interest of avoiding future remand, the RO should then review the examination report to ensure that the above questions have been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies in the examination report. 4. Thereafter, the RO should review the expanded record and determine if the benefit sought can be granted. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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). _________________________________________________ ERIC S. LEBOFF 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).