Citation Nr: 1334864 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 11-23 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for post herpetic neuralgia. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD Luke McCabe, Associate Counsel INTRODUCTION The appellant had active duty for training (ACDUTRA) for the Army National Guard from March 2, 1981 to June 26, 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied service connection for post herpetic neuralgia. In his July 2011 substantive appeal (VA Form 9), the appellant requested a hearing before the Board. One was scheduled for April 30, 2013, and the appellant was notified of the hearing in a March 29, 2013 letter. However, he did not appear for the hearing and has not provided a reason for his failure to appear. Therefore the Board will proceed with appellate review. See 38 C.F.R. § 20.704(d) (2013) (failure to appear for a scheduled hearing will be processed as though the request for a hearing had been withdrawn). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND While the Board regrets the delay, the appellant's claim for service connection for post herpetic neuralgia must be remanded for additional development to ensure a complete record upon which to make an informed decision so that the claim is afforded every possible consideration. A new VA examination and opinion are warranted. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (stating that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also C.F.R. §§ 3.159(c)(4), 3.326(a) (2013). In September 2010, VA provided the appellant with an examination to determine the etiology of his post herpetic neuralgia. In the report, the examiner diagnosed right thoraco-lumbar pain and a history of herpes zoster and post herpetic neuralgia. The appellant reported a two year history of symptoms in the same location as a herpes zoster outbreak which occurred during service, as reflected in his March 1981 service treatment records. The examiner found no evidence of a skin rash or scars on physical examination. Having reviewed the claims file, the VA examiner opined that it was "not at least as likely as not that the thoraco-lumbar pain/post herpetic neuralgia is related to the service condition of herpes zoster." The examiner based the opinion on the 25-year interval between the in-service herpes zoster outbreak and the start of the appellant's current symptoms and the absence of another herpes zoster outbreak during this time. Additionally, the examiner noted that that movement of the thoracolumbar spine exacerbated the appellant's pain. The September 2010 VA examination is not sufficient for determining the etiology of the appellant's post herpetic neuralgia. In this regard, the examiner did not provide any rationale for his finding that a thoraco-lumbar spine injury caused pain not in the lower back, but on the side of the chest and in the "lower loin area." The VA examiner also did not address a statement from the appellant's private treating physician finding that the appellant had a residual zoster rash with intermittent pain on the right chest, diagnosed as post herpetic neuralgia. The physician also noted the appellant's history of zoster rash in service. Therefore, on remand, a new VA examination and opinion should be completed to assess the nature of the appellant's current symptoms and their relationship to service based on all the evidence of record. See 38 C.F.R. § 4.2 (2013) (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); see also Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (stating that VA has discretion to schedule a Veteran for a medical examination where it deems an examination necessary to make a determination on the Veteran's claim). The RO/AMC should also obtain any outstanding VA treatment records and any private treatment records identified by the appellant. Accordingly, the case is REMANDED for the following actions: 1. Send a letter to the appellant requesting him to identify any relevant outstanding private treatment records or other relevant evidence pertaining to his post herpetic neuralgia. Authorized release forms should be provided. If the appellant properly fills out and returns any authorized release forms for additional private records identified by him, reasonable efforts should be made to obtain such records and associate them with the file. At least two such efforts should be made unless a negative response to the first request is received. 2. Obtain the appellant's outstanding VA treatment records from the VA Medical Center (VAMC) in Wilmington, Delaware dated since September 2010 and associate them with the claims file. 3. Then, schedule the appellant for a VA examination for post herpetic neuralgia. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. After reviewing the file and examining the appellant, the examiner should render an opinion as to whether the appellant's current right chest symptoms are at least as likely as not (i.e., to at least a 50:50 degree of probability) related to the herpes zoster diagnosed in active service, or whether such a relationship is unlikely (i.e., less than a 50:50 degree of probability). In providing this opinion, the examiner should comment on the June 2010 private medical statement which found a "residual [herpes] zoster rash over the area of pain" on the right chest, and diagnosed post herpetic neuralgia, noting that the appellant had been diagnosed with herpes zoster in service. The examiner must provide a complete explanation for the opinion reached. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 4. Next, review the medical examination report to ensure that the opinion provided is adequate. The case should be returned to the examiner if all questions posed are not answered. 5. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claim on the merits. If the benefits sought are not granted, the appellant and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. He is also advised that failure to report for any scheduled examination may result in the denial of a claim. 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). ____________________________________________ P. M. DILORENZO 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).