Citation Nr: 1333695 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 09-02 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an increased disability rating for eczematous and seborrheic dermatitis, rated as 10 percent disabling prior to September 21, 2012, and as 30 percent disabling as of that date. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from December 1949 to February 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which denied a disability rating in excess of 10 percent for eczematous and seborrheic dermatitis. The claim was remanded by the Board in August 2012 and June 2013 for additional development. In an August 2013 rating decision, the rating assigned for eczematous and seborrheic dermatitis was increased to 30 percent effective September 21, 2012. Despite the increased rating granted, the Veteran's appeal remains before the Board. Cf. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to a decision assigning a particular rating, a subsequent decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board remanded the claim in June 2013 in pertinent part for VA to consider other diagnostic criteria pertaining to the skin, namely those related to scars or disfigurement. The Board noted that service connection was originally granted for neurodermatitis of both thighs and left arm; that the disability was subsequently recharacterized as eczematous and seborrheic dermatitis in a January 2004 rating decision, in which the RO specifically indicated that the then-current VA examination assessed skin rash possible eczema and seborrheic dermatitis of the face, scalp and ears; that there was no change in the January 2004 rating decision to the diagnostic criteria used to evaluate the disability; that the September 2012 DBQ included findings pertinent to areas other than the Veteran's thighs and left arm, specifically his face, scalp, and area behind his ears, and also included photographs on which the VA examiner specifically noted what diagnosed skin condition was affecting the Veteran's face, scalp, and area behind his ears; and that the September 2012 examiner also included a scars DBQ. Where the remand orders of the Board 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). The August 2013 supplemental statement of the case (SSOC) did not consider the criteria pertaining to scars or other disfigurement (38 C.F.R. § 4.118, Diagnostic Codes 7800-7805) in effect prior to October 23, 2008. This must be rectified on remand. The August 2013 SSOC also failed to include a discussion as to whether the Veteran is entitled to a rating in excess of 10 percent for eczematous and seborrheic dermatitis prior to September 21, 2012. This, too, must be rectified on remand. As the claim is being remanded for the foregoing reasons, recent VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain the Veteran's treatment records from the Providence VAMC, dated since July 2013. 2. Readjudicate the claim. In readjudicating the claim, VA must consider whether the Veteran is entitled to a rating in excess of 10 percent for eczematous and seborrheic dermatitis prior to September 21, 2012, as well as whether he is entitled to a rating in excess of 30 percent for eczematous and seborrheic dermatitis as of September 21, 2012. VA must not only consider the diagnostic criteria currently used to evaluate the disability, but must also consider the criteria pertaining to scars or other disfigurement (38 C.F.R. § 4.118, Diagnostic Codes 7800-7805) in effect prior to October 23, 2008. If the benefit sought on appeal is not granted, issue an updated SSOC. The Veteran and his representative should also be given an appropriate amount of time to respond to it. 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 or by the U.S. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).