Citation Nr: 1332376 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 09-37 201A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for tinea versicolor. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1976 to January 1977 and from February 1978 to December 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which inter alia, declined to reopen a claim for service connection for tinea versicolor. The Veteran testified at a Travel Board hearing held in August 2011 at the St. Petersburg RO. A copy of the transcript has been associated with the record. In March 2012, the Board reopened and remanded the Veteran's claim. The Appeals Management Center (AMC) continued the previous denial of the claim in a November 2012 supplemental statement of the case (SSOC). Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. 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 Board remanded the Veteran's claim in March 2012, in part, in order for the Veteran to be afforded a VA examination to determine whether his tinea versicolor disorder was caused or aggravated by either period of his military service. In providing the requested opinion, the VA examiner's rationale was to include a discussion of all relevant evidence in the claims file, to include but not be limited to: the Veteran's reported history of treatment and symptomatology; lay statements; August 2011 hearing testimony; claims submissions; service treatment records; post-service private and VA treatment records; and April 1992 VA examination report. Pursuant to the March 2012 Board remand, the Veteran was provided a VA examination for his tinea versicolor in August 2012. The VA examiner noted a review of the Veteran's service treatment records which documented a diagnosis of tinea versicolor on his January 1978 enlistment examination for the second period of active duty as well as treatment for tinea versicolor during the second period of active duty in July 1980, June 1982, January 1985, June 1985, October 1985, and December 1985. The examiner further noted the Veteran's postservice treatment for tinea versicolor as well as his report of a history of a chronic skin disability following discharge from service. After examination of the Veteran and consideration of his medical history, the VA examiner concluded that it is less likely than not (less than 50 percent probability) that the Veteran's tinea versicolor was incurred in or caused by his military service. In providing a rationale for her conclusion, the VA examiner initially reported that the Veteran's tinea versicolor was first found prior to enlistment in 1978 and thereafter discussed the Veteran's postservice treatment in May 1989 and September 2008. Furthermore, she reported that tinea versicolor is known to occur in warm, moist, conditions and therefore occurs more frequently in the summer. She also reported that it is aggravated by poor hygiene and poor compliance with the directions for application of medication used for treatment. She thereafter opined that it is less likely than not that the Veteran's tinea versicolor was either caused or aggravated by either of his periods of military service. Pertinently, however, the VA examiner did not discuss in her rationale the remainder of the Veteran's service treatment records which document treatment for tinea versicolor on multiple occasions during his second period of active duty. Specifically, treatment records dated February 1978, July 1980, June 1982, July 1984, January 1985, June 1985, October 1985, and December 1985 note treatment for the Veteran's tinea versicolor, to include use of medication for treatment. The Board also notes that the examiner did not address in her rationale the Veteran's statements as to the continuity of his symptoms following discharge from service. Indeed, it is unclear as to why the examiner found the Veteran's tinea versicolor as not related to or aggravated by his military service. The Board therefore finds that the opinion rendered by the VA examiner is inadequate for evaluation purposes. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence]. Additionally, in finding that the Veteran's tinea versicolor was found prior to his second period of active duty, the Board notes that VA regulations provide, in pertinent part, that a veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). To rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Cases in which the condition is noted on entrance, however, are still governed by the presumption of aggravation contained in 38 U.S.C. § 1153 (as opposed to that applicable under 38 U.S.C. § 1111 where the complained of condition was not noted on entrance into service). This statute provides that a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2013). The Board regrets that we did not share or explain this critical regulatory distinction in our March 2012 remand. In this case, the evidence of record is unclear as to whether there is clear and unmistakable evidence that the Veteran's tinea versicolor disorder was not aggravated to a permanent degree by his second period of military service beyond its natural progression. As such, the Board finds that an opinion as to this matter must be obtained. See 38 U.S.C.A. §§ 1111, 1153 (West 2002), 1132; 38 C.F.R. §§ 3.304(b), 3.306 (2013); Wagner, supra; VAOPGCPREC 3-2003. Therefore, a remand for such opinion is required. See 38 U.S.C.A. § 5103A(d) (West 2002); Barr v. Nicholson, 21 Vet. App. 303 (2007); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the VA examiner who examined the Veteran for his tinea versicolor in August 2012. The examiner should again review the Veteran's claims file and provide an opinion as to whether there is clear and unmistakable evidence that the Veteran's tinea versicolor disorder was NOT aggravated to a permanent degree in his second period of military service beyond that which would be due to the natural progression of the disorder. In rendering this opinion, the examiner should cite to supporting evidence in the claims folder. She should also specifically address treatment for the Veteran's tinea versicolor during his second period of military service in February 1978, July 1980, June 1982, July 1984, January 1985, June 1985, October 1985, and December 1985. The examiner should indicate in her report whether or not the claims file was reviewed. A rationale for all opinions expressed should be provided. Such rationale must include a discussion of all relevant evidence in the claims file, to include but not be limited to: the Veteran's reported history of treatment and symptomatology; lay statements; August 2011 hearing testimony; claims submissions; service treatment records; post-service private and VA treatment records; and April 1992 VA examination report. All findings, conclusions, and supporting rationale should be expressed in a typewritten report and associated with the Veteran's VA claims folder. If the examiner determines that an examination of the Veteran is necessary, an examination should be scheduled. 2. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on next page.) 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). _________________________________________________ MICHAEL A. PAPPAS 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).