Citation Nr: 1334237 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 11-11 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent prior to January 14, 2010 for paralyzed right hemidiaphragm. 2. Entitlement to an initial rating in excess of 30 percent as of January 14, 2010 for paralyzed right hemidiaphragm. 3. Whether new and material evidence has been received to reopen service connection for a skin disorder (claimed as chloracne), to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to February 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from July 2008 and February 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. In July 2011, the Veteran testified at a Board hearing held before the undersigned Veterans Law Judge in White River Junction, Vermont. A copy of the transcript is of record. Before reaching the merits of the claim for a skin disorder, the Board must first determine whether new and material evidence has been received to reopen the previously denied claim. Jackson v. Principi, 265 F. 3d 1366, 1369 (Fed. Cir. 2001). Therefore, the Board has listed the issue on the title page accordingly. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issue of service connection for a skin disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO, via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained regarding the issues of higher initial ratings for paralyzed right hemidiaphragm and whether new and material evidence has been received to reopen service connection for a skin disorder. 2. From November 24, 2008 to January 13, 2010, the service-connected paralyzed right hemidiaphragm more closely approximated manifestations of Forced Expiratory Volume in one second (FEV-1) of 68 percent predicted and FEV-1/ Forced Vital Capacity (FVC) of 70 percent. 3. For the entire initial rating period, the service-connected paralyzed right hemidiaphragm more closely approximates manifestations of FEV-1 of 68 percent predicted and 62 percent predicted and Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 57 percent predicted. 4. Service connection for a skin disorder (claimed as chloracne), to include as due to herbicide exposure, was denied in an April 2007 rating decision; and the Veteran was notified of this action and of his appellate rights, but did not file a timely notice of disagreement. New and material evidence was not received within one year of the decision. 5. The evidence received since the April 2007 rating decision, regarding service connection for a skin disorder, is new and material. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for an initial rating of 30 percent for paralyzed right hemidiaphragm have been met from November 24, 2008 to January 13, 2010. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.96, 4.97, Diagnostic Code (DC) 6840 (2013). 2. The criteria for an initial rating in excess of 30 percent for paralyzed right hemidiaphragm have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.96, 4.97, DC 6840 (2013). 3. The April 2007 rating decision, that denied service connection for a skin disorder, became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). 4. New and material evidence has been received since the April 2007 rating decision to reopen the claim for service connection for a skin disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Given the fully favorable decision discussed below for the issue of whether new and material evidence has been received to reopen service connection for a skin disorder, the Board finds that any issue with regard to the timing or content of the VCAA notice provided to the Veteran is moot or represents harmless error. With regard to the issue of higher initial ratings for service-connected paralyzed right hemidiaphragm, this claim arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with both claims on appeal, the evidence of record includes the Veteran's service treatment records, VA outpatient treatment records, statements from the Veteran, and VA examination reports dated January 2009, November 2009, and February 2010. The January 2009 and February 2010 VA examiners reviewed the Veteran's claims file and medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale regarding the service-connected paralyzed right hemidiaphragm. The Board notes that these VA examination reports are probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In July 2011, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge. During that hearing, the Veteran's representative and the Veterans Law Judge explained the issues and asked questions to draw out the current nature of the Veteran's complaints. The hearing focused on the elements necessary to substantiate his claims. Neither the Veteran nor his representative has suggested any deficiency in the conduct of that hearing; and all pertinent evidence that might substantiate the claims was identified by the Veteran and has been obtained. Therefore, the Board finds that, consistent with Bryant v. Shinseki, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge fully explain the issues and suggest the submission of evidence that may have been overlooked during Board hearings). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims on appeal. The evidence of record provides sufficient information to adequately evaluate the claims, all obtainable evidence identified by the Veteran relative to the claims has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Initial Rating Claim The Veteran is seeking higher initial ratings for the service-connected paralyzed right hemidiaphragm. Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155 (West 2002). Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. Pursuant to the rating criteria for the respiratory system, restrictive lung disease, the service-connected paralyzed right hemidiaphragm is rated under DC 6840. See 38 C.F.R. § 4.97 (2013). The General Rating Formula for Restrictive Lung Disease (DCs 6840 through 6845) provides the following evaluations: 10 percent for FEV-1 of 71 to 80 percent predicted, or FEV-1/FVC of 71 to 80 percent, or DLCO (SB) of 66 to 80 percent predicted 30 percent for FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent, or DLCO (SB) of 56 to 65 percent predicted 60 percent for FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or DLCO (SB) of 40 to 55 percent predicted, or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit); 100 percent for FEV-1 less than 40 percent predicted, or FEV-1/FVC less than 40 percent, or DLCO (SB) less than 40 percent predicted, or maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or cor pulmonale (right heart failure), or right ventricular hypertrophy, or pulmonary hypertension (shown by Echo or cardiac catheterization), or episode(s) of acute respiratory failure, or required outpatient oxygen therapy. In a February 2009 rating decision, the RO granted service connection for paralyzed right hemidiaphragm and assigned a 10 percent disability rating, effective November 24, 2008. The 10 percent rating was based on a finding that January 2009 pulmonary function test (PFT) results revealed FEV-1 at 74 percent predicted and DLCO (SB) at 74 percent predicted. In March 2011, the RO assigned a 30 percent disability rating from January 14, 2010 to the present based on a conclusion that January 2010 PFT results revealed FEV-1 of 65 percent predicted. The Board notes that the January 2009 and January 2010 VA examiners attributed the Veteran's PFT results to chronic obstructive pulmonary disease (COPD) and emphysema, which are nonservice-connected disabilities, and the RO relied on such results to rate the service-connected right paralyzed right hemidiaphragm. Nevertheless, the Board finds that, pursuant to the General Rating Formula for Restrictive Lung Disease, the same PFT results are to be used when rating the current service-connected disability under DC 6840. Thus, the Board also considers the January 2009 and January 2010 PFT results in adjudicating the claim on appeal. In this case, the pertinent evidence shows that on VA respiratory examination in January 2009, clinical findings revealed FEV-1 of 68 percent predicted (the post-drug reported value of 2.47 divided by the predicted value of 3.61) and FEV-1/FVC of 70 percent (the post-drug reported value rounded down to the nearest tenth). These findings meet the criteria for a 30 percent rating under DC 6840 during the appeal period from November 24, 2008 to January 13, 2010. Next, the Board considers whether an initial rating in excess of 30 percent is warranted for the entire initial rating period on appeal. As noted above, the pertinent evidence shows that on VA respiratory examination in January 2009, clinical findings showed FEV-1 of 68 percent predicted and FEV-1/FVC of 70 percent, as well as DLCO (SB) of 74 percent predicted (the pre-drug percent predicted value). Approximately one year later, January 2010 VA outpatient PFT results revealed FEV-1 of 62 percent predicted (the post-drug reported value of 2.23 divided by the predicted value of 1.97), FEV-1/FVC of 76 percent (the post-drug reported value rounded down to the nearest tenth), and DLCO (SB) 57 percent predicted (the pre-drug reported value rounded up to the nearest tenth). On VA respiratory examination in February 2010, the examiner noted the Veteran presents with the same symptoms with no resolution from the January 2009 VA examination, and summarized the January 2010 PFT results. The Board notes that maximum oxygen consumption and maximum exercise capacity results are not of record during the appeal period; however, such testing to obtain these results is not necessary in this case to evaluate the service-connected disability. See 38 C.F.R. § 4.96(d)(1)(i). At the July 2011 Board hearing, the Veteran testified that he is not on oxygen. The Board also acknowledges that an October 2010 VA outpatient treatment record notes PFT results showed FEV-1 of 55 percent; however, there is no indication of record that this result is the percent predicted as required under DC 6804. Moreover, VA outpatient treatment records prior to November 24, 2008 are of record and document PFT results. Nevertheless, the effective date is the date entitlement arose or the date of claim, whichever is later, which in this case is the date of claim in November 2008. See 38 C.F.R. § 3.400. As a result, the Board finds that any further discussion of the evidentiary record prior to November 2008 will not warrant a higher rating at any time for the initial rating period on appeal. As FEV-1 of 40 to 55 percent predicted or less, FEV-1/FVC of 40 to 55 percent or less, DLCO (SB) of 40 to 55 percent predicted or less, maximum oxygen consumption of 15 to 20 ml/kg/min or less, cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, episode(s) of acute respiratory failure, or required outpatient oxygen therapy is not shown, a rating in excess of 30 percent is not warranted under DC 6840 for any period. The evidence of record indicates the paralyzed right hemidiaphragm disability more closely approximates manifestations of FEV-1 of 68 percent predicted and 62 percent predicted and DLCO (SB) of 57 percent predicted. Moreover, the evidence of record shows that clinical findings of the Veteran's paralyzed right hemidiaphragm during the entire initial rating period do not demonstrate FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent, DLCO (SB) of 40 to 55 percent predicted, or maximum oxygen consumption of 15 to 20 ml/kg/min to warrant the next higher rating. The Board has considered the Veteran's reported history of symptomatology regarding the service-connected disability. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes through his senses and observations. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of his disability according to the appropriate diagnostic code. In this decision, the Board has considered both the lay statements and medical opinions regarding the degree of impairment caused by the paralyzed right hemidiaphragm. Next, the Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, with respect to the claim as required by the Court. See Schafrath, 1 Vet. App. at 594. However, after careful review of the available diagnostic codes and the lay and medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign a rating higher than the currently assigned 30 percent evaluation for the service-connected disability on appeal for any period. The Board considers and finds the issue of a total disability rating based on individual unemployability (TDIU) due to the service-connected paralyzed right hemidiaphragm is not warranted for any period. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). While the record is not completely clear, the evidence of record regarding his employment status does not indicate unemployment due to this disability on appeal. Therefore, TDIU has not been raised by the record. Additionally, an extra-schedular rating may be provided in exceptional cases. 38 C.F.R. § 3.321 (2013). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. In this case, the Board finds that the schedular rating criteria adequately contemplate and describe the symptoms and impairment caused by the service-connected paralyzed right hemidiaphragm. Specifically, symptoms such as shortness of breath and use of an inhaler, as reported by the Veteran at the July 2011 Board hearing, are contemplated under DC 6804. For these reasons, the Board finds that the assigned schedular rating of 30 percent is adequate to rate the Veteran's paralyzed right hemidiaphragm, and no referral for an extra-schedular rating is required. New and Material Evidence to Reopen Service Connection In an April 2007 rating decision, the RO denied service connection, in pertinent part, for a skin disorder. The RO stated the medical evidence failed to show a diagnosis of a skin disorder within a year after the last date on which he was exposed to an herbicide agent during service. The evidence also failed to show a current skin disorder occurred in or was caused by service. The Veteran was notified of the April 2007 rating decision and of his appellate rights, but did not file a timely notice of disagreement. As a result, the Board finds that the rating decision became final for this claim on appeal. No new and material evidence was received within one year of the 2007 rating decision. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. A claim that has been previously denied may be reopened if new and material evidence is received with respect to that claim. If the claim is reopened, it will be reviewed on a de novo (new) basis, with consideration given to all the evidence of record. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273, 282 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). The evidence that is considered to determine whether new and material evidence has been received is the evidence submitted since the last final denial of the appellant's claim on any basis. Evans, 9 Vet. App. at 273. This evidence is presumed credible for the purposes of reopening the claim, unless it is inherently false or untrue, or if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992); see also Robinette v. Brown, 8 Vet. App. 69 (1995). New and material evidence can be neither cumulative (new material of the same kind) nor redundant (duplicate) of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); see Shade v. Shinseki, 24 Vet. App. 110 (2010) (finding that the language of 38 C.F.R. § 3.156(a) creates a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened). The evidence of record associated with the claims file since the April 2007 rating decision, pertaining to the claim on appeal, does not include relevant official service department records, and, as noted, there was no evidence received prior to the expiration of the appeal period pertaining to this claim. Therefore, 38 C.F.R. § 3.156(b) and 38 C.F.R. § 3.156(c) are not applicable. All of the evidence received since the April 2007 rating decision was not previously submitted to VA. Specifically, the RO scheduled the Veteran for a VA examination for skin diseases in November 2009. Following the clinical evaluation, the Veteran was diagnosed with solar elastosis, actinic damage and open comedones. The examiner explained that this diagnosis does not represent chloracne and opined that the current skin findings are not caused by or a result of Agent Orange exposure. Such evidence is pertinent to the element of a current skin disability, which was not established at the time of the April 2007 rating decision. As a result, the Board finds that the newly received evidence, specifically the November 2009 VA examination report for skin diseases, is new and material. Having submitted new and material evidence, the service connection claim for a skin disorder is reopened; and to that extent only, the appeal is granted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER An initial rating of 30 percent prior to January 14, 2010 for paralyzed right hemidiaphragm is granted. An initial rating in excess of 30 percent for paralyzed right hemidiaphragm is denied. New and material evidence has been received to reopen service connection for a skin disorder; and to that extent only, the appeal is granted. REMAND A remand is required in this case to ensure there is a complete record upon which to decide the issue of service connection for a skin disorder. The November 2009 VA medical opinion is inadequate to render a decision for this claim because the examiner did not provide a sufficient explanation for why the Veteran's current skin findings (solar elastosis, actinic damage and open comedones) are not caused by or a result of Agent Orange exposure. Once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced); see also Stefl v. Nicholson, 21 Vet. App 120 (2007); see Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). As a result, the Board finds that an additional VA medical opinion is necessary to ensure there is a complete record upon which to decide this claim on appeal. The RO/AMC should arrange for the Veteran's claims file to be reviewed by the physician who conducted the November 2009 VA examination for skin diseases prepared the medical opinion (or a suitable substitute if that physician is unavailable) for the purpose of preparing an addendum opinion. Accordingly, the case is REMANDED for the following actions: 1. Attempt to obtain and associate with the record all outstanding VA outpatient treatment records pertaining to the skin, to include from October 2010 to the present. All facilities must provide a negative response if records are not available and the Veteran and his representative should be informed of such and given the opportunity to submit the requested information as required under 38 U.S.C.A. § 5103A(c) and 38 C.F.R. § 3.159(c). 2. Next, furnish the Veteran's entire claims file to the physician who conducted the November 2009 VA examination for skin diseases and prepared the medical opinion (or a suitable substitute if that physician is unavailable). The physician must review all pertinent evidence of record and prepare an addendum opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's currently diagnosed skin disorder, to include solar elastosis, actinic damage and open comedones, began during service or is otherwise linked to service. A rationale/explanation should be given for all opinions and conclusions expressed, and should not be based solely on the absence of treatment records during or after service. If an opinion or rationale cannot be rendered without resorting to speculation, the physician should explain why it would be speculative to respond. If an additional clinical evaluation is necessary to render the requested information, then that opportunity should be made available. 3. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The Veteran and representative have the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2013). 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. 2013). ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs