Citation Nr: 1338186 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 11-19 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for scars of the lower extremities. REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services WITNESSES AT HEARINGS ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from May 1955 to June 1957. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In July 2010, the Veteran testified during a personal hearing at the RO and, in May 2012, he testified during a hearing at the RO before the undersigned. Transcripts of the hearings are of record. In a June 2013 decision, the Board reopened the Veteran's previously denied claim for service connection for scars of the bilateral lower extremities and then remanded the reopened claim to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is again REMANDED to the RO via the AMC. VA will notify the appellant if further action is required. REMAND As noted above, in June 2013, this case was remanded to the RO/AMC for further development. Unfortunately, a review of the evidence in this case reveals that the RO did not comply with the Board's June 2013 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board commits error as a matter of law when it fails to ensure compliance, and further remand will be mandated). In July 2010, a VA examiner reported that the Veteran had bilateral scars of the lower legs secondary to skin lesions developed in 1957. In December 2010 Addendum, a VA examiner opined that the Veteran's skin condition was not permanently aggravated beyond normal progression by military service and there was no aggravation of the previously identified scars due to military service. In June 3013, the Board observed that the December 2010 VA examiner's opinion was insufficient to decide the claim because it did not use the standard incorporated in the law. The burden is on the government to rebut the presumption of soundness by clear and unmistakable evidence that a condition was both preexisting and not aggravated by service. VAOPCPREC 3-2003. The Board directed that the VA examiner should clarify his opinion "as to whether there is clear and unmistakable evidence that a bilateral lower extremity disability was both preexisting and not aggravated by service." The examiner was further requested to clarify "whether or not any current bilateral lower extremity skin disorder, including scars, if present in service, clearly and unmistakably pre-existed service and clearly and unmistakably did not undergo a permanent increase in severity during active duty." However, in a July 2013 report, the VA examiner reiterated that the Veteran's "skin condition was not permanently aggravated beyond normal progression" by military service, but did not clarify his opinion, as directed by the Board. See Stegall, supra. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination by a dermatologist who has not previously evaluated him to determine the nature and etiology of any scars of the bilateral lower extremities found to be present. The claims file and a copy of this remand should be made available to the examiner. All indicated tests and studies should be conducted and all clinical findings reported in detail. Photographs of the Veteran's lower extremities should be taken and included with the examination report. The examiner is requested to address the following: a. For each lower extremity scar disorder identified, is it at least as likely as not, that is, is there a 50/50 chance that the Veteran's diagnosed lower extremity scar disorder is related to his period of active duty from May 1955 to June 1957, including the findings noted in the Veteran's active service treatment records? b. If any disability was incurred before May 1955, did it clearly and unmistakably pre-exist active service and clearly and unmistakably not undergo a permanent increase in severity during active service, beyond the natural progress of the disorder, during the Veteran's period of active military duty from May 1955 to June 1957? c. If a permanent increase in severity during active service was incurred, the specific degree of aggravation over and above the pre-existing level of scar disability must be specifically identified. 2. After the development requested above has been completed to the extent possible, the RO/AMC should again review the claim of service connection for scars of the bilateral lower extremities. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given the opportunity to respond thereto before the case is returned to the Board. 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. 2013). _________________________________________________ ERIC S. LEBOFF 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).