Citation Nr: 1329743 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 07-39 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial compensable disability rating for nummular eczema. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service from November 1968 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2007 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan granted service connection for nummular eczema and assigned a noncompensable rating for this disorder, effective from March 24, 2005. In April 2011, the Board remanded the appeal to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development. After completing the additional development, the AMC continued to deny the claim (as reflected in a January 2012 supplemental statement of the case (SSOC)), and returned this matter to the Board for further appellate consideration. The Board has reviewed both the Veteran's physical claims file and the record maintained in the Virtual VA paperless claims processing system to ensure complete consideration of all the evidence. 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 The Veteran contends that his service-connected nummular eczema is more disabling than is reflected in the current noncompensable evaluation. As noted in the Introduction, this case was previously before the Board in April 2011. At that time, the Board issued remand directives that instructed the AMC/RO to schedule the Veteran for an appropriate examination to determine the current level of severity of his service-connected skin disorder. The record indicates that he was afforded a VA examination in May 2011, at which time the examiner concluded that the Veteran's skin condition seemed to be in remission and that the percentage of exposed areas, including the Veteran's head, face, neck and hands, was less than 5 percent and that the percentage of his total body area affect was less also than 5 percent. The Veteran stated that typically his condition is much improved in the spring and summer, but worse in the winter due to dryness and itching. After the SSOC was issued in January 2012, the Veteran submitted a February 2012 statement wherein he expressed concern about the prior finding that less than 5 percent of his body surface was affected. He noted that he had sought treatment in April 2011 for a number of issues including itching on his lower legs, neck, arms, forehead, ears, and hands and that the physician treated his forehead with liquid nitrogen. The Veteran also explained that, because the diagnosis had been made, and treatment prescribed, he had not sought regular appointments with his private physician. He noted that he continued to use prescription cortisone creams on a daily basis to minimize the effects of his service-connected eczema and that follow-up visits for the eczema were usually unnecessary. He then requested an appointment at the dermatology clinic at the VA hospital in Ann Arbor, Michigan to see if there were a more effective treatment of his eczema. To that end, VA medical records, available through the Compensation and Pension Records Interchange (CAPRI), that had been uploaded to the Veteran's electronic Virtual VA folder show that the most recent clinical record is dated February 16, 2012. It appears that the Veteran requested a dermatology consultation for his eczema, complaining that he had it "all over" and wanted to get treated for it. Based on a review of current evidence of record, the Veteran appear to have sought, and perhaps even undergone, additional treatment for control of his service-connected nummular eczema since the May 2011 VA examination. The Board cannot adjudicate the claim based on an incomplete record. Culver v. Derwinski, 3 Vet. App. 292 (1992) (VA has a duty to obtain all pertinent medical records which have been called to its attention by the appellant and by the evidence of record.) As remand is necessary, as relevant clinical records may exist and the Veteran's intent is to have them submitted for review. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). In challenging the adequacy of the May 2011 VA examination, the Veteran asserts that he had informed the examiner of areas of dry, itchy skin, involving his lower legs, hands, upper inside arms, arm pits, neck, back, chest, and head as well as his very red hands. Veteran's lay statement dated February 17, 2012. As there may have been significant changes in his service-connected skin rash since the May 2011 examination, and to ensure that his own complaints are sufficiently considered by a VA examiner, a remand is necessary for a new VA examination to obtain a detailed picture of the current state of this disorder. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination-particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered a contemporaneous examination of the veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). The examination should include a description of the medicine that he takes and any systemic therapy he has received since the 2011 VA examination. In light of his report that his skin condition is typically worse in the winter months, to the extent possible, the examination should be scheduled during a flare-up of the condition. He should be notified that he may seek outpatient treatment for his nummular eczema during a flare-up, or take other measures to document its severity during a flare-up. He may then submit those records to VA. Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (where fluctuating conditions escape detection on examination, VA must conduct an examination during the active stage). The remand will also allow for original consideration of the additional evidence added to the claims file since it was last readjudicated by the RO. 38 C.F.R. §§ 19.37, 20.1304 (2012). The case is REMANDED for the following action: 1. Notify the Veteran that he may seek treatment for his skin condition during a flare-up, or take other measures as necessary, in order to document the severity of his nummular eczema during a heightened or "active" flare-up. He may then submit such records or documentation in support of his claim for an increased rating. 2. After obtaining the appropriate release of information forms from the Veteran, procure any medical records not already in the claims file relating to recent treatment for, or evaluation of, his service-connected nummular eczema. The Board is particularly interested in any pertinent dermatological treatment that the Veteran has received from the VA Medical Center in Ann Arbor, Michigan since May 2011. Document the attempts to obtain such records. If the AMC/RO is unable to obtain any pertinent evidence identified by the Veteran, so inform him and request that he obtain and submit it. If any records are unavailable, do not exist, or further attempts to obtain them would be futile, document this fact in the claims file. See 38 U.S.C.A. § 5103A(b). All such available documents should be associated with the claims folder or Virtual VA folder (as appropriate). 3. Then, the Veteran should be referred for a VA dermatology examination to determine the current manifestations and severity of his service-connected nummular eczema. To the extent possible, schedule this examination during an "active" phase or flare-up of this service-connected skin disorder so as to get an accurate picture of its severity. The examining facility must be fully informed of this requirement in this case and communicate with the Veteran as necessary to maximize the likelihood of performing the examination during a flare-up of the claimed condition. Appropriate instructions must be provided to the Veteran in this regard. The claims folder must be made available to the examiner for review, and the examination report should include discussion of the Veteran's documented medical history and assertions. A notation to the effect that this record review took place should be included in the report. All indicated tests and studies should be performed, and the examiner should review the results of any testing prior to completing the report. Any disabling manifestations specifically attributable to the Veteran's service-connected nummular eczema must be fully outlined and differentiated from symptoms caused by any nonservice-connected skin disorders. After examining the Veteran and reviewing the relevant evidence in the claims file, the examiner should: a) describe in detail all symptoms reasonably attributable to service-connected nummular eczema. He/She should describe the areas of the body affected by the skin condition, to include the percentage of the entire body affected by the service-connected nummular eczema and the percentage of exposed areas (total area of the skin of the hands, head, and neck) affected. b) describe any therapy that the Veteran has undergone since 2011, and what medications he currently uses. It should be specifically noted whether the Veteran has required systemic therapy such as corticosteroids or other immunosuppressive drugs for control of the nummular eczema. If the Veteran requires systemic therapy such as corticosteroids or other immunosuppressive drugs, the examiner should note the frequency of such use in the past 12-month period. c) The examiner should also indicate whether the Veteran's nummular eczema has required PUVA (psoralen with long-wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy for a total duration of six weeks or more, but not constantly, during the past 12-month period. d) describe the extent of disfigurement or deformity resulting from the rash on the entire body, noting the presence (or absence) and extent of exfoliation, exudation, itching, tenderness, extensive lesions, ulceration, crusting and systemic or nervous manifestations. e) provide an opinion as to the effect that the service-connected nummular eczema has, if any, on the Veteran's employment and daily life. Specifically, the examiner should render an opinion as to whether the disability causes marked interference with employment, or the need for frequent periods of hospitalization or otherwise precludes the Veteran from engaging in substantially gainful employment. 4. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the increased rating claim on appeal. If the benefit sought on appeal remains denied, furnish the Veteran and his representative an SSOC and give them an appropriate time period in which to respond. All evidence should be reviewed, to include evidence submitted since the most recent SSOC. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).