Citation Nr: 1333987 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-34 174 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a skin rash, to include as due to an undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C.A. § 1117. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from April 2003 to July 2003; and from January 2005 to January 2006, with service in Southwest Asia from March 2005 to October 2005. He also has prior Reserve duty. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2007 rating decision in which the RO, inter alia, denied service connection for a skin rash. In January 2010, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in July 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals ) in August 2010. Also, on the VA Form 9, the Veteran expressed disagreement with the rating assigned for his back. The RO construed such statement as a timely NOD and subsequently issued an SOC in October 2012. The Veteran has not filed a substantive appeal with regards to the rating of his service-connected back disability. Consequently, such issue is not before the Board at this time. In May 2013, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim. For the reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects and the Veteran contends that he is entitled to service connection for a skin rash as directly related to his service, to include as a result of undiagnosed illness based on his service in Southwest Asia from March 2005 to October 2005. Subject to various conditions, service connection may be granted for a disability due to undiagnosed illness of a Veteran who served in the Southwest Asia Theater of operations during the Persian Gulf War. There must be objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as fatigue, signs or symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper and lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. The illness must become manifest during either active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. Part 4. By history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. There must be objective signs that are perceptible to an examining physician and other non-medical indicators that are capable of independent verification. There must be a minimum of a six-month period of chronicity. There must be no affirmative evidence that relates the undiagnosed illness to a cause other than being in the Southwest Asia Theater of operations during the Persian Gulf War. 38 U.S.C.A. § 1117; 38 C.F.R. 3.317. If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98 (Aug. 3, 1998). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A § 1117(d) warrants a presumption of service-connection. 38 C.F.R. § 3.317(a)(2)(i). For purposes of this section, the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). For purposes of this section, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). In a February 2007 post-deployment questionnaire, the Veteran reported "yes" to skin diseases or rashes as part of his deployment-related condition. Notably, in a September 2005 post-deployment questionnaire, the Veteran reported "no" to skin diseases or rashes. VA treatment records associated with the claims file shows intermittent treatment for a skin rash, to include treatment for dermatitis. The Veteran was scheduled for a VA examination in March 2011, however, he failed to report to the examination. During the May 2013 hearing, the Veteran testified that his skin rash started while he was serving in Iraq. He stated that he went to the corpsman and he was given Benadryl and Cortisone cream. He stated that the examiners were unable to ascertain the etiology of the skin rash. The Veteran also testified that he was unaware of the scheduled March 2011 examination, as he was living in North Carolina at the time. Both he and his representative requested a new examination. The Board notes, that given the Veteran's military history of serving in Southwest Asia, examination and opinion as to whether his disorder is due to an undiagnosed illness associated with Persian Gulf War service is warranted. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent evidence. The Veteran has indicated that all of his treatment is through VA. Upon review of the Veteran's electronic VA file, VA treatment records dated through December 15, 2011 have been associated with the file. Treatment records since that time must be obtained. The RO should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to both claims on appeal, notifying him that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, any pertinent, outstanding private records. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. The RO's adjudication the claim should include consideration of all additional evidence added to the claims file since the RO's last adjudication of the claim. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain any outstanding, pertinent VA records of evaluation and/or treatment of the Veteran's skin rash since December 15, 2011. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all outstanding records have been associated with the claims file, afford the Veteran an appropriate VA examination so as to determine the current nature and etiology of his skin rash. The entire claims file, to include a copy of this RRMAND, and copies of any relevant Virtual VA records, must be made available to and be reviewed by the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished(with all results made available to the examiner prior to the completion of his or her report),, and all clinical findings should be reported in detail. The examiner should specifically state whether the Veteran's symptoms of skin disease or rash are attributed to a known clinical diagnosis. If a diagnosed disorder is established, the examiner should render an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any such disorder had its onset during any period of the Veteran's active duty service or is otherwise related to such service. If the Veteran's symptoms of skin rash cannot be attributed to any known clinical diagnosis, specify whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that have either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. The examiner should set forth all examination findings (if any), along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, adjudicate the matter based on the entirety of the evidence; with consideration of the claim on both a direct basis and due to an undiagnosed illness. 7. If the claim remains denied, furnish the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).