Citation Nr: 1336918 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 09-35 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a dermatological disorder, to include a skin rash. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant had active service from March 1970 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Newark, New Jersey. The issues on appeal previously included service connection for posttraumatic stress disorder (PTSD). However, during the pendency of this appeal, by a rating action dated in July 2011, service connection for PTSD was granted. As this represents a complete grant of the benefit sought on appeal, that issue is no longer before the Board. Subsequent to his perfection of his appeal, the appellant requested and was scheduled for a hearing before a Veterans Law Judge at the local Regional Office in June 2012. He failed to report for this hearing and, since that time, has not indicated that he wished to testify at another hearing. The Board, therefore, finds that he has withdrawn the request to testify before the Board. 38 C.F.R. § 20.704 (2013). In addition to the paper claims file, there is a Virtual VA and VBMS paperless claims file associated with the appellant's claim. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This matter was previously before the Board in November 2012 and March 2013 at which time it was remanded for additional development. The claim has since been returned to the Board for review. Regrettably, after reviewing the development that has been accomplished, the appeal is once again REMANDED to the AMC. VA will notify the appellant if further action is required. REMAND As a result of the November 2012 Remand, the appellant was scheduled for a VA Skin Examination. Such an examination was accomplished in December 2012. The examiner was instructed to determine the nature and etiology of any identified skin disability. The examiner was also asked to opine whether any current skin disorder had its onset during active service or was related to any inservice disease, event, or injury, to include the appellant's inservice episode of a skin rash. Additionally, the examiner was ordered to accept as credible the appellant's reports concerning chronicity and continuity of symptomatology. Upon reviewing the December 2012 examiner's responses, the Board found that they were inadequate because the examiner did not provide an etiological opinion concerning hyperpigmented raised lesions on the upper back that were diagnosed. The examiner also suggested that the appellant was suffering from seborrheic keratosis but then provided no opinion concerning the condition's etiology. As such, the Board found that the examination was inadequate and as such, the AMC failed to comply with the duty to obtain the requisite medical information necessary to make a decision on the appellant's claim. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Since the record failed to provide to the Board the necessary information needed in making a determination as to whether the appellant was actually suffering from the claimed disability and the etiology of said disorder, the record was returned to the AMC so that additional medical testing could be accomplished and complete diagnoses obtained. To do otherwise would be prejudicial to the appellant and would be a breach of the VA's duty to assist an appellant with his claim before it. In the taskings to the AMC, the Board requested that the examiner make a determination as to whether the appellant was suffering from a skin disability and if so, whether that condition began in or was caused by or the result of his military service. The examiner was asked to further comment on whether the appellant's in-service skin rash was a manifestation of a skin disorder from which the appellant was suffering therefrom or has suffered therefrom during the course of the appeal. Additionally, the examiner was asked to provide a comprehensive report including rationales for all opinions and conclusions, citing the objective medical findings leading to the examiner's conclusions. The examiner was instructed to discuss the appellant's contentions concerning chronicity of symptoms since service along with any additional information contained in the claims file, and, if the examiner concluded that the appellant's claimed or purported skin disorder was not service-related, the examiner needed to explain in detail the reasoning behind this determination. The appellant did undergo the requested VA examination in July 2013.The examiner indicated that she had reviewed the appellant's complete claims folder including electronic records and reports. After examining the appellant, she concluded that the appellant was not suffering from any type of dermatological disorder. She also stated that the appellant had not experienced any type of skin condition since 1972. Subsequent to the examination, the results were forwarded to the AMC which then issued a Supplemental Statement of the Case that denied the appellant's claim for benefits. The claim was then forwarded to the Board. A review of the file that has since been returned to the Board reveals that when the paper file was returned to the AMC subsequent to the Board's last remand action, the AMC digitally scanned the file and included it on VBMS. Yet, a review of the VBMS file and Virtual VA file for the appellant reveals that the December 2012 examination report - the report that the Board called into question for being inadequate - has disappeared. In other words, the examination report that the Board sought to qualify with another examination is now missing from the record. Thus, it is unclear whether the examiner in 2013 ever saw or reviewed that record. Also, because this record is missing, it is unclear to the Board whether if there are any other records of the appellant that may also missing that may have a bearing of his claim. Because of this anomaly, and in order to ensure that the complete file is reviewed by all parties, the claim will be remanded to the AMC so that all physical and electronic records may be merged and associated. Also, in the Board's 2013 Remand, the Board gave specific instructions concerning the format and style that the examination report was to be therein. A review of the examination report completed in July 2013, reveals that report contains incomplete sentences and comments that are not supported by a complete and cogent discussion of the evidence. The United States Court of Appeals for Veterans Claims (Court) has noted for remands by the Board that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (there was no Stegall v. West, 11 Vet. App. 268 (1998), violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). In this instance, the Board believes that the examination results are inadequate and even if the record was complete and without at least one missing record, the claim must be returned to the AMC so that another examination may be obtained that contains complete answers to all questions posed. Accordingly, further appellate consideration will be deferred and the case is REMANDED to the AMC for the following actions: 1. The AMC will associate, physically and electronically, all of the appellant's records, to include those located on VBMS and Virtual VA. The AMC will also review the records and discover whether the reconstructed file contains the missing December 2012 examination report. If the AMC cannot find the missing December 2012 examination report, the AMC will make a memorandum for record for inclusion in the claims file detailing the loss of the record, and the appellant notified as such. The reconstructed file will then be forwarded not only to the VA Medical Center where the appellant will be re-examined but will also be returned to the Board for review as appropriate. 2. After the development above has been completed, the AMC should schedule the appellant for an examination with a VA physician that has not yet examined the appellant, in order to determine the etiology and nature of the appellant's asserted skin disability. Specifically, the examination should be accomplished so that a determination may be made as to whether the appellant now suffers from a skin disability and if so, whether that condition began in or was caused by or the result of his active service. The examiner shall be provided with the appellant's claims file and a copy of this Remand and should review the appellant's medical history. The examiner shall indicate in the examination report that the claims file was reviewed. Again, any tests and studies deemed necessary should be accomplished at this time. The examiner is directed to render an opinion as to whether it is at least as likely as not that any identified skin disorder began in service or is otherwise related to active service. The examiner shall further comment on whether the appellant's in-service skin rash was a manifestation of a skin disorder from which the appellant now suffers or has suffered during the course of the appeal. Additionally, the examiner must specifically discuss whether any skin disorder, disability, or condition for which the appellant has been treated since leaving service was caused by or is the result of the appellant's active service. Of particular interest is whether any appellant's more recently diagnosed multiple hyperpigmented raised lesions and seborrheic keratosis was caused by or the result of the appellant's active service, or was caused by exposure to chemical dioxins. Additionally, the examiner must specifically discuss whether any skin disorder, disability, or condition for which the appellant has been treated since leaving service either (i) was caused (in whole or in part) or (ii) is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by a service-connected disability or medications taken for the treatment of a service-connected disability. The examiner is advised that the appellant is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the appellant's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a skin disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a complete rationale for each opinion given. 3. The AMC should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the requested report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2013); see also Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, the AMC should readjudicate the issue on appeal. If the benefits sought on appeal remain denied, the appellant and his accredited representative (National Association of County Veterans Service Officers) must be provided a Supplemental Statement of the Case containing notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The appellant need take no action unless otherwise notified. The purpose of the examination requested in this remand is to obtain information or evidence (or both), which may be dispositive of the appeal. Therefore, the appellant is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2013) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ DEMETRIOS G. ORFANOUDIS Acting 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).