Citation Nr: 1338495 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-15 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an initial compensable rating for residuals of recurrent staph infection. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to October 1974 and from January 1975 to December 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In April 2010, the Veteran requested a hearing before a Veterans Law Judge (VLJ). The Veteran testified before the undersigned VLJ during an October 2010 videoconference hearing. The hearing transcript is of record. The Board notes that service connection for a scar of the Veteran's left lower scalp, caused by his recurrent staph infection, was granted by the RO in a March 2012 rating decision. The RO assigned the Veteran a 10 percent disability rating for his left lower scalp scar, effective April 18, 2008. A review of the Virtual VA paperless claims processing system reveals the Veteran's October 2013 appellate brief. The VBMS paperless claims system does not contain any additional documents pertinent to the present appeal. 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 A remand is necessary for additional evidentiary development. Over the course of the appeal, the Veteran has been afforded two VA skin examinations. During the February 2009 VA examination, the examiner noted that the Veteran experienced recurrent staph infections in January 2007, July 2007, August 2007 and February 2008. However, the examiner indicated that the Veteran's skin did not currently show any active lesions or any evidence of infection. On VA examination in April 2011, the examiner recorded that the Veteran's recurrent staph infections occurred in December 2006, July 2007 and February 2008, but that the Veteran had not had a recurrent staph infection since April 2010. The examiner noted that although the Veteran had a scar, there was no active infection currently. It appears that neither of the VA examinations of record were administered during an active outbreak of the Veteran's service-connected skin disability. The Veteran has asserted that he experiences recurrent staph infections, characterized by skin lesions and abscesses, at various times throughout the year. Specifically, during the October 2010 Board hearing, the Veteran testified that he was currently experiencing a flare-up of symptoms, with a skin lesion on his arm and another lesion on the side of his neck. See Veteran's Hearing Transcript, pgs. 10-13, October 2010. Skin lesions are a symptom that can be observed through the senses; as such, the Veteran's statements concerning experiencing periods of skin flare-ups are competent. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When a Veteran's medical history indicates that his condition undergoes periods of remission and recurrence, VA is required to attempt to provide a medical examination during the period of recurrence in order to provide a proper disability rating. See Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994) (VA skin examination during the remission phase of the condition did not accurately reflect the elements of the present disability). Accordingly, on remand, the Veteran should be afforded a VA skin examination that occurs during an active outbreak of his symptoms. Additionally, the Veteran testified in October 2010 that he seeks medical treatment when he has a skin flare-up and that he was scheduled for another treatment at the VA ear, nose and throat clinic. See Veteran's Hearing Transcript, pg. 13, October 2010. However, the most recent treatment records from the Jackson VA Medical Center (VAMC) are dated from April 2010. Accordingly, on remand, records of any ongoing VA treatment for the Veteran's skin condition should be obtained. See 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2013). Accordingly, the case is REMANDED for the following action: 1. Obtain all updated pertinent medical treatment records from the Jackson VAMC from April 2010 to the present. 2. Obtain the names and addresses of all medical care providers, not previously identified, who have treated the Veteran for any skin issues since April 2007. After securing the necessary release(s), obtain these records. 3. After completion of the foregoing, the RO should arrange for the Veteran to undergo a VA skin examination by a dermatologist for the purpose of determining the nature and severity of his service-connected residuals of recurrent staph infection. The VA examiner should detail the Veteran's complete skin medical history, conduct a thorough clinical evaluation, and perform any diagnostic testing deemed necessary. The claims file (i.e. the paper claims file and all medical records contained in Virtual VA and VBMS) and a copy of this remand should be made available to the examiner for their review. To the extent feasible, this VA skin examination should be conducted at a point in time that the Veteran's residuals of recurrent staph infection are in an active phase. The RO should advise the Veteran that if his symptoms are unobservable on the date of his scheduled examination, he should inform VA of this fact and reschedule another examination for another date. See Ardison, 6 Vet. App. at 407-08 (1994) (requiring VA skin examinations during an active stage of the disorder). The VA examiner should address the following: a) Identify all pathology related to the Veteran's service-connected skin disability. Conduct all necessary tests and elicit clinical findings in response to the applicable diagnostic criteria. See 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801, 7802, 7803, 7804, 7805, 7806, 7820 (in effect prior to October 23, 2008). b) Specify the location and extent of the skin disability in terms of a percentage of the body affected , percentage of exposed areas affected, and the frequency that systemic therapy, such as corticosteroids or immunosuppressive drugs, have been required during the past 12-months. c) State whether that skin disability is manifested by exfoliation, exudation, or itching involving an exposed surface or extensive area; constant exudation or constant, extensive lesions, or marked disfigurement; systemic or nervous manifestations and ulceration, extensive exfoliation, or extensive crusting; or whether it is exceptionally repugnant. d) Specifically note whether the Veteran's skin disability involves disfigurement of the head, face, or neck and describe the nature and extent of any disfigurement. Also, take into account any flare-ups the Veteran may have experienced during the year. e) State whether the Veteran's skin disability is productive of scarring and specify the size of any scar and whether it causes limitation of motion, or is painful, unstable, or superficial. f) Discuss whether the Veteran's skin disability is productive of any additional functional impairment. g) State what impact, if any, the Veteran's skin disability has on his activities of daily living, including his ability to obtain and maintain substantially gainful employment. 4. 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, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ MICHAEL MARTIN 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) (2012).