Citation Nr: 1332724 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-29 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a skin disorder (claimed as skin rash). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1991 to December 1991, July 2006 to November 2007, and it appears that he also had a period of active duty from March 2010 to February 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a skin rash. The Veteran timely appealed that issue. This case was last before the Board in February 2011, when it was remanded for further development, to include obtaining the Veteran's service treatment records and providing him with a VA examination of his skin; those objectives were completed and the case has been returned to the Board for further appellate review at this time. The Board notes that in its previous decision, 11 other issues were also on appeal at that time. In the February 2011 Board decision, the Board granted service connection for a lumbar spine disability, but remanded the other 10 service connection issues as well as the skin disorder issue. During the pendency of the remand for development, those other 10 non-skin service connection claims were favorably decided in either August 2012 or October 2012 rating decisions. The Veteran has not submitted any notice of disagreement with those awards of benefits at this time. Accordingly, the Board finds that the sole issue left unresolved at this time from the previous appeal is the skin disorder claim addressed below. The Board will no longer address the other issues from the February 2011 Board decision at this time. Unfortunately, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Initially, the Board notes that the record appears to indicate that the Veteran has a period of active duty from approximately March 2010 to February 2011, though no formal documentation as to the specific dates of this period of active duty, to include the formal DD Form 214, is of record. On remand, the RO/AMC should seek documentation of this most recent period of active service, to include a DD Form 214, and associate that documentation with the claims file. As an additional initial matter, the Board notes that the Veteran's skin disorder claim was last readjudicated in an October 2012 supplemental statement of the case. In June 2013, updated VA treatment records from the Fayetteville VA Medical Center from September 2009 through June 2013 were associated with the Virtual VA efolder. No readjudication of the skin disorder claim on appeal has been completed at this time that addresses this new evidence, nor is there a waiver of original jurisdiction of record at this time. Thus, the Board notes that a remand is necessary in order for the agency of original jurisdiction to address this evidence in the first instance. Regardless, however, the Board finds that a remand of this claim is necessary in order to obtain another VA examination and medical opinion. The Board notes that in February 2012, the Veteran underwent a VA examination of his skin. At that time, the Veteran was diagnosed with tinea versicolor in February 2012 (the date of the examination), which was noted predominantly on his left shoulder, arm and chest. It was described as being confluent, brownish macules. The VA examiner noted that the Veteran had been treated for tinea cruris during military service, though no specific treatment record with regards to this treatment was noted; the Board does not see such a service treatment record for tinea cruris in the claims file at this time. The examiner subsequently opined that the Veteran's tinea versicolor was less likely than not related to military service because he "was previously diagnosed with tinea cruris[, and t]he current findings are not consistent with this diagnosis both in appearance and distribution." First, the Board notes that the examiner does not explain the difference in appearance and distribution between the tinea cruris noted in service and the Veteran's current tinea versicolor. As the Board cannot identify the service treatment record to which the examiner is referencing in his opinion, this further complicates understanding of the examiner's opinion. Secondly, and more importantly however, the Board notes that the Veteran's tinea versicolor was described as "confluent, brownish macules" during the examination; the Board notes that in an October 2011 VA treatment note associated in the June 2013 Virtual VA efolder batch of records demonstrates that the Veteran was reporting "persistent papular or nodular skin rashes." The February 2011 post-deployment assessment of the Veteran following his last deployment indicated that he had a skin rash that began during deployment; none of those records demonstrate a region of the body that was affected. The Board notes that none of the February 2011 post-deployment assessment, the October 2011 report of a persistent skin rash within one year of his last deployment, or the Veteran's lay evidence regarding onset of his skin rash was discussed in the examiner's opinion. Based on these deficiencies, particularly the lack of addressing the Veteran's lay reporting of skin rashes and the October 2011 report of a persistent rash, the Board finds that a new VA examination must be obtained at this time. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the San Juan and Fayetteville VA Medical Centers, or any other VA medical facility that may have treated the Veteran, since June 2013 and associate those documents with the claims file. 2. Ask the Veteran to identify any private, TriCare, or VA treatment that he may have had for his claimed skin disorder, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Obtain appropriate official documentation, to include but not limited to the official DD Form 214, for the Veteran's most recent period of active duty service, which appears to be approximately from March 2010 to February 2011, and associate those documents with the claims file. 4. After completing the development sought above, schedule the Veteran for a VA examination in order to determine the nature and etiology of any skin disorder. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted, and the results reported in the record. After review of the claims file and examination of the Veteran, the examiner should note any skin disorders found, including tinea versicolor and/or tinea cruris. The examiner should particularly obtain-from the Veteran-a detailed medical history of his skin disorder and include such in the examination report. For each skin disorder found, including tinea versicolor, the examiner should indicate whether it more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise the result of military service, particularly his most recent overseas deployment through February 2011. The examiner should specifically address the Veteran's lay evidence and medical history regarding his skin disorder, including his February 2011 post-deployment assessment that his skin rash began during deployment, as well as his report in October 2011-within one year of returning from deployment-of a "persistent papular or nodular skin rash." The examiner should additionally clarify and address the deficiencies noted in the body of this REMAND order with the February 2012 examiner's opinion in the examination report. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claim of service connection for a skin disorder. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ J. A. MARKEY 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) (2013).