Citation Nr: 1338995	
Decision Date: 11/26/13    Archive Date: 12/06/13

DOCKET NO.  07-33 520	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for pseudofolliculitis barbae, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 

2.  Entitlement to service connection for skin rashes of the head and face, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 

3.  Entitlement to service connection for a respiratory disorder, including upper respiratory infections, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 

4.  Entitlement to service connection for chronic headaches, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 

5.  Entitlement to service connection for a right shoulder disorder, claimed as skin/nerve movements, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 

6.  Entitlement to service connection for an ear disorder, claimed as ear aches, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 

7.  Entitlement to service connection for a sleep disorder, including sleep apnea, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 

8.  Entitlement to service connection for vision problems, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 

9.  Entitlement to an initial compensable rating for a left ankle scar.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Davitian, Counsel


INTRODUCTION

The Veteran served on active duty from April 1988 to June 1992. 

This matter originally came to the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  The rating decision granted service connection for a left ankle scar, evaluated as noncompensable, and denied service connection for the remaining claimed disabilities on appeal.

In March 2011, the Board remanded the matter to the RO to accommodate the Veteran's request for a Board hearing.  The Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) in a hearing at the RO in June 2011.  A transcript of the hearing has been associated with the claims file. 

In December 2011, the Board again remanded the Veteran's claims.  At that time, the Board noted that the Veteran had clarified the scope of his claims during the June 2011 hearing.  The Board recharacterized the claims accordingly.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 86-88   

The issues of service connection for a right shoulder disorder, an ear disorder, a sleep disorder and vision problems are now before the Board for final appellate consideration.

The issues of service connection for headaches, service connection for pseudofolliculitis barbae, service connection for skin rashes of the head and face, service connection for a respiratory disorder and entitlement to a compensable evaluation for a left ankle scar are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  There has been no demonstration by credible, competent evidence that the Veteran's right shoulder disorder, claimed as skin/nerve movements, had its onset in service or is related to active duty, or is a manifestation of an undiagnosed illness or medically unexplained multisymptom illness.

2.  There has been no demonstration by credible, competent evidence that the Veteran's ear disorder, claimed as ear aches and diagnosed as otitis externa, had its onset in service or is related to active duty, or is a manifestation of an undiagnosed illness or medically unexplained multisymptom illness.

3.  There has been no demonstration by credible, competent evidence that the Veteran's sleep disorder, claimed as insomnia/hypersomnia and diagnosed as sleep apnea, had its onset in service or is related to active duty, or is a manifestation of an undiagnosed illness or medically unexplained multisymptom illness.

4.  There has been no demonstration by credible, competent evidence that the Veteran's claimed vision problems had its onset in service or is related to active duty, or is a manifestation of an undiagnosed illness or medically unexplained multisymptom illness.


CONCLUSIONS OF LAW

1.  A right shoulder disorder, claimed as skin/nerve movements, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, was not incurred or aggravated by active service.  38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2013).

2.  An ear disorder, claimed as ear aches and diagnosed as otitis externa, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, was not incurred or aggravated by active service.  38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2013).

3.  A sleep disorder, including sleep apnea, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, was not incurred or aggravated by active service.  38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2013).

4.  Vision problems, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, were not incurred or aggravated by active service.  38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Notice was provided in an October 2005 letter.  Dingess notice was provided in July 2006.  Thereafter, the claims on appeal were readjudicated in a July 2007 statement of the case (SOC).  Accordingly, the duty to notify has been fulfilled and any timing deficiencies were cured.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

With regard to the duty to assist, the claim's file contains the Veteran's service treatment records (STRs), VA and private medical records, and the transcript of the June 2011 hearing before the undersigned AVLJ.  The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record.  

VA has substantially complied with the Board's December 2011 remand by making efforts to obtain certain identified VA treatment records and private medical records.  See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Dyment v. West, 13 Vet. App. 141 (1999).  Notably, the RO has been informed by the Biloxi VA/Mobile OPC that paper clinic records from June 1992 to December 2002 are unavailable as they were destroyed during Hurricane Katrina.  By letter dated September 27, 2012, the RO advised the Veteran of the unavailability of records and provided him an opportunity to submit any records in his possession.  Incidentally, at the hearing in June 2011, the undersigned advised the Veteran to submit personal copies of past VA records which he reported were in his possession.

Here, VA is unable to obtain the Veteran's treatment records prior to December 2002 due to a natural catastrophe.  These records no longer exist, and any further attempt to obtain such records would be futile.  On two separate occasions, the Veteran has been specifically requested to provide any VA records in his possession.  Unfortunately, the Veteran has failed to cooperate in the development of his claim by submitting records purportedly in his possession and, at this time, VA owes no further duty to assist the Veteran with regard to obtaining VA records.  See Dusek v. Derwinski, 2 Vet. App. 519, 522 (1992) (quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (claimant cannot wait passively for VA assistance in circumstances where claimant may or should have information in obtaining the putative evidence).

Additionally, by letter dated April 23, 2012, the RO notified the Veteran of its inability to obtain specified private treatment records and the reasons why such records could not be obtained.  He was provided an additional period of time to provide these records himself.  Thus, VA has properly assisted the Veteran in attempting to obtain private medical records.

VA has a duty to provide a VA examination expressing an opinion when the record lacks sufficient evidence to decide the veteran's claim, but contains evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease.  See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

The Board notes that the Veteran has not had a VA examination specifically for the right shoulder, ear disorder, sleep disorder and vision problem claims.  The Board concludes that a medical opinion is not needed for these claims.

As discussed below, the Veteran's STRs are negative for any complaints, symptoms, findings or diagnoses related to the right shoulder, ear, sleeping or vision.  Thus, the second McLendon element is not satisfied with respect to these claims.  

In addition, there is no medical evidence indicating that any of the Veteran's current claimed disabilities may be etiologically associated with any established in-service event, injury, or disease.  Further, while the Veteran has implicitly testified as to continuity of symptomatology since active duty, the Board finds that his allegations of inservice onset with continuity of symptomatology thereafter are not credible.  Thus, the third McLendon element is not satisfied with respect to any of the claims on appeal.  

The Board recognizes that the Court of Appeals for Veterans Claims (Court) in McLendon held that this element establishes a low threshold, and that a VA examination can be required based on medical evidence which suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits.  

However, even considering the low threshold established here, none of the credible evidence of record in this case contains any indication that any of the Veteran's claimed disabilities might be associated with any in-service event, injury, or disease.  Therefore, a remand in order to obtain a supplemental opinion regarding this issue is not required under McLendon.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (finding that further development would serve no useful purpose when it would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran).

The Board further observes that the Veteran has claimed that his right shoulder, ear, sleeping and/or vision problems may be due to undiagnosed illness.  The Board is cognizant that the McLendon analysis does not apply in these types of cases.  Rather, the Veteran need only establish qualifying service in the Persian Gulf, having an "undiagnosed" disability, and having that disability being manifest to a compensable degree.  Here, the Veteran has qualifying service in the Persian Gulf but the Board finds no objective indications of a chronic disability involving skin/nerve movements which could be rated as compensable in degree.  He has current diagnoses of otitis externa and sleep apnea and, thus, the provisions of 38 U.S.C.A. § 1117 do not apply to these claims.

In sum, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.

Accordingly, the Board finds that VA's duty to assist has been met.  38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008).  

Legal Analysis

With respect to the Veteran's claims, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal.  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 Court of Appeals for the Federal Circuit (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 claims.

The Veteran generally contends that the claimed disabilities began during active duty and/or are manifestations of an undiagnosed illness.  In general, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection may be awarded on a presumptive basis to a Persian Gulf veteran who (1) exhibits objective indications; (2) of a chronic disability such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10% or more not later than December 31, 2016; and (4) such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004); 38 U.S.C. § 1117; 38 C.F.R. § 3.317; 76 Fed. Reg. 81834-81836 (Dec. 29, 2011).

Objective indications of a chronic disability include both "signs", in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA's Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar.  A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States.  38 C.F.R. § 3.317(a)(3-5).

Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders.  38 C.F.R. § 3.317(b).

In addition to certain chronic disabilities from undiagnosed illness, service connection may also be given for medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs and symptoms, as well as for any diagnosed illness that the VA Secretary determines by regulation warrants a presumption of service connection.  38 C.F.R. § 3.317(a)(2)(i)(B).

Additionally, presumptive service connection is warranted with the manifestation of the following infectious diseases: (i) brucellosis, (ii) campylobacter jejuni, (iii) coxiella burnetii (Q fever), (iv) malaria, (v) mycobacterium tuberculosis, (vi) nontyphoid salmonella, (vii) shigella, (viii) visceral leishmaniasis, and (ix) West Nile virus.  38 C.F.R. § 3.317(c).  There is no evidence or allegation that these provisions apply.

A February 4, 2010 Veterans Benefits Administration  (VBA) Training Letter 10-01 (TL10-01), entitled Adjudicating Claims Based on Service in the Gulf War and Southwest Asia, instructs that, if an examiner has determined the Veteran's disability pattern to be either (3) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis, then service connection cannot be granted under 38 C.F.R. § 3.317 and may only be granted if the medical evidence is sufficient to establish service connection on a direct basis.  See generally Combee v. Principi, 34 F.3d 1039, 1043 (1994).

The VBA Training Letter 10-01 also advises that special efforts and inquiries may be necessary when procuring medical evidence in these claims because of the difficulties involved with determining whether or not a diagnosis has been established, including non-medical and lay statements which may constitute probative evidence by describing changes in the Veteran's appearance, physical abilities, and mental or emotional status.

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  38 U.S.C.A. § 5107(b).

Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against service connection for a right shoulder disorder, claimed as skin/nerve movements; an ear disorder, claimed as ear aches; a sleep disorder, including sleep apnea; and vision problems, each to include as a qualifying chronic disability under 38 C.F.R. § 3.317.  The evidence does not show that the Veteran had the claimed disabilities during active duty, or that any current claimed disabilities are related to active duty or an undiagnosed illness. 

Turning to service connection based on undiagnosed illness, the Board observes that post-service VA treatment records provide diagnoses of otitis externa and sleep apnea.  These are known clinical diagnoses.  See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a).  Consequently, service connection for an ear disorder, claimed as ear aches, and a sleep disorder, including sleep apnea, as the result of an undiagnosed illness must be denied as a matter of law.  See Sabonis, supra.  

The post-service medical records simply provide no evidence of any objective indications of chronic right shoulder or vision disorder.  They include no opinion that the Veteran has a chronic right shoulder or vision disorder due to an undiagnosed illness.  The clinic evaluations have routinely report no eye abnormalities on examination (HEENT).  Thus, the post-service medical records do not support service connection based on an undiagnosed illness.  38 C.F.R. § 3.317(a)(3), (4). 

The Veteran's own contentions also do not support his claims.  With respect to his right shoulder claim, the Veteran described the onset of "twitching" in service.  He further described that this "twitching" did not happen often and, in fact, last happened "a couple years or so" ago.  Otherwise, for the last several years, he stated that "I ain't had not twitching at all, not really."  With respect to his vision problems, the Veteran essentially testified to dizziness problems in service.  He described his current vision as "pretty well right now" with the exception of being unable to read small print.  He does not wear glasses.

After review of the Veteran's testimony and medical records, the Board finds that the Veteran has not demonstrated objective indications of a chronic disability for either muscle twitching or vision problems which could be rated as compensable in degree.  The Veteran has essentially testified that his muscle "twitching" ceased several years ago and that his vision loss is essentially an inability to read small print.  The Board can find no criteria under VA's Schedule of Ratings which would allow for a compensable rating for muscle twitching which has not been active for several years.  Furthermore, the Veteran essentially describes having hyperopia symptoms not requiring glasses which would also not warrant a compensable rating under VA's Schedule of Ratings.  See http://en.wikipedia.org/wiki/Hyperopia (describing hyperopia, also commonly known as being farsighted, as an inability to focus on near objects). 

Turning to service connection on a direct basis, the Veteran's STRs are negative for complaints, symptoms, findings or diagnoses related to the right shoulder twitching, ears, sleeplessness or vision problems.  The Veteran was evaluated in a hearing conservation program.  At his June 1992 separation examination, the Veteran specifically denied symptoms such as eye trouble, ear trouble and frequent trouble sleeping.  Physical examination demonstrated 20/20 near and distant vision bilaterally with normal clinical evaluations of ears, eyes, skin and upper extremities.

The record is also negative for any medical evidence or opinion linking any of the claimed disabilities to the Veteran's active duty.  In fact, as the Veteran's STRs are negative for any complaints, symptoms, findings or diagnoses, any positive medical opinion that purported to be based on a review of them would lack probative value, as it would not accurately reflect the record.  See Kowalski v. Nicholson, 19 Vet. App. 171 (2005).

The Board acknowledges the Veteran's own assertions in support of his claim.  He is competent to testify as to his observable symptoms during and after active duty.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  He is also competent to provide testimony and statements concerning factual matters of which he has firsthand knowledge (i.e., experiencing or observing relevant symptoms during or after service).  Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Further, under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, supra.  

However, as addressed above, the Veteran does not describe a chronic "twitching disability" and he testified in June 2011 that he could not recall when he began to have vision problems.  The Veteran did testify to the onset of snoring and daytime sleepiness in service, but a December 2008 treatment record reflects his report of a "several years' history of excessive daytime sleepiness" as well as severe sleep problems for several years.  The Veteran did not testify to the onset of his current eye problems in service.  He also testified to inservice treatment with ear drops, but could not recall a diagnosis.  He also could not recall when he next received treatment for ear problems.  He could recall having problems with ear wax build-up, but could not recall whether he had recurrent treatment for ear infections.

Overall, to the extent the Veteran argues the onset of twitching, sleep apnea, vision problems and recurrent ear infections in service, the Board finds that his assertions as to continuity of symptomatology of the claimed disabilities since service are less than credible.  In this respect, given the Veteran's inability to recall details demonstrated during his June 2011 hearing, the Board places greater probative weight to the contents of the STRs in conjunction with his report of symptomatology at the time of separation from service, the latter of which statements were made contemporaneous in time to the time period at issue and bear the indicia of reliability as they were made in the context of seeking appropriate medical treatment.  See Lilly's An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245- 46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).  See also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran).

While the Board acknowledges that the absence of any corroborating probative medical evidence supporting the Veteran's assertions, in and of itself, does not render the statements incredible, such absence is for consideration in determining credibility.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible).  The Veteran's STRs (containing no relevant complaints, symptoms, findings or diagnoses) and the post-service medical records (containing no evidence linking any of the claimed disabilities to the Veteran's service) also tends to weigh against these claims.  

In sum, the credible, competent evidence demonstrates that the Veteran is not entitled to service connection for a right shoulder disorder, claimed as skin/nerve movements; an ear disorder, claimed as ear aches; a sleep disorder, including sleep apnea; and vision problems, each to include as a qualifying chronic disability under 38 C.F.R. § 3.317.  As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).


ORDER

Service connection for a right shoulder disorder, claimed as skin/nerve movements, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied.

Service connection for an ear disorder, claimed as ear aches, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied.

Service connection for a sleep disorder, including sleep apnea, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied.

Service connection for vision problems, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is denied.  


REMAND

A preliminary review of the record indicates that the remaining claims require additional development.  

Turning to the Veteran's service connection claims, he contends that he has had pseudofolliculitis barbae, skin rashes of the head and face, a respiratory disorder and chronic headaches since active duty.  As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness.  See Falzone v. Brown, 8 Vet. App. 398, 405 (1995).  Although the Veteran denied pertinent complaints at separation, the STRs nevertheless reflect medical treatment for nasal congestion, nasal drainage, headaches and unproductive cough.  They include diagnoses of mild URI, pseudofolliculitis barbae, and probable heat rash/acne vulgaris.  During the June 2011 hearing, the Veteran testified that while on active duty he had headaches that began with his rashes.  He also testified to recent episodes of pseudofolliculitis barbae.

Since the evidence raises the possibility that the Veteran has the claimed disabilities as a result of active duty, the Board finds that a remand is necessary in order for the RO to obtain VA medical opinions.  See McLendon, supra.

Turning to the Veteran's increased initial evaluation claim, the Board's December 2011 remand found that a new VA examination was necessary to determine the current severity and manifestations of the disability.  It observed that the Veteran testified during his June 2011 hearing that his primary complaints involved a painful scar, intermittent itchiness, and numbness over the scar. 

As a result, the Board requested that VA conduct an examination of the Veteran to, inter alia, describe all characteristics of scarring attributable to the service-connected left ankle injury with scar, to include a determination as to whether the scar itself resulted in any functional limitations (e.g., loss of motion), and determine whether any current neurologic dysfunction of the left ankle (e.g., loss of sensation), was attributable to the left ankle injury during service.  

The Board finds that the report of the corresponding examination, conducted in January 2012, is inadequate.  The report does not provide any determination as to whether the scar itself results in any functional limitations, such as loss of motion.  The report provides a diagnosis of left saphenous cutaneous nerve sensory dysfunction but does not provide an opinion as to whether it was attributable to the left ankle injury during service.  The report does not provide a detailed analysis for all conclusions and opinions reached supported by specific references to actual injury in service and the September 2007 report by a private (non-VA) examiner.

Thus, the medical opinion requested by the Board's December 2011 remand has not been obtained.  Compliance by the Board or the agency of original jurisdiction is neither optional nor discretionary.  Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  See Stegall v. West, 11 Vet. App. 268 (1998).  The claim must be remanded for an addendum VA opinion.

Accordingly, the case is REMANDED for the following action:

1.  Associate with the claims folder records of the Veteran's VA treatment since October 11, 2012.

2.  Arrange for an examination to determine the nature, extent and etiology of any pseudofolliculitis barbae, skin rashes of the head and face, and chronic headaches conditions that may be present.  The claims file must be made available to the examiner.

Following a review of the relevant medical evidence in the claims file, the medical history, the clinical evaluation, and any tests that are deemed necessary, the examiner is asked to opine whether: 

      (a) it is at least as likely as not (50 percent or more likelihood) that any current pseudofolliculitis barbae, skin rashes of the head and face, and chronic headaches are causally related to service; or 

      (b) any current findings related to pseudofolliculitis barbae, skin rashes of the head and face, and chronic headaches constitute signs of an undiagnosed illness related to the Veteran's Persian Gulf service.  

A rationale must be provided for the opinions offered and, if any requested opinion cannot be provided on a medical or scientific basis and without invoking processes relating to guesses or judgment based upon mere conjecture, the reviewing physician should clearly and specifically so specify and explain why this is so. 

3.  Arrange for an examination to determine the nature, extent and etiology of any respiratory disorder that may be present.  The claims file must be made available to the examiner.

Following a review of the relevant medical evidence in the claims file, the medical history, the clinical evaluation, and any tests that are deemed necessary, the examiner is asked to opine whether: 

      (a) it is at least as likely as not (50 percent or more likelihood) that any current respiratory disorder is causally related to service; or 

      (b) any current findings related to a respiratory disorder constitute signs of an undiagnosed illness related to the Veteran's Persian Gulf service.  

A rationale must be provided for the opinions offered and, if any requested opinion cannot be provided on a medical or scientific basis and without invoking processes relating to guesses or judgment based upon mere conjecture, the reviewing physician should clearly and specifically so specify and explain why this is so.

4.  Forward the Veteran's claims folder to the examiner who conducted the January 2012 VA examination (or a suitable substitute if this individual is unavailable) for an addendum.  

Following a review of claims folder, including the January 2012 VA examination report, the examiner is asked to: 

      (a) describe all characteristics of scarring attributable to the service-connected left ankle injury with scar, to include a determination as to whether the scar itself results in any functional limitations (e.g., loss of motion); and 

      (b) opine whether it is at least as likely as not (50 percent or more likelihood) that any current neurologic dysfunction of the left ankle (e.g., loss of sensation), if any, is attributable to the left ankle injury during service.

To the extent possible, the examiner should identify and attempt to distinguish the degree of impairment of any neurologic symptoms attributable to a disability of the left ankle other than the service-connected scar.  In making such determinations, it is imperative that the examiner offer a detailed analysis for all conclusions and opinions reached supported by specific references to actual injury in service and the September 2007 report by a private (non-VA) examiner.

A rationale must be provided for the opinions offered and, if any requested opinion cannot be provided on a medical or scientific basis and without invoking processes relating to guesses or judgment based upon mere conjecture, the reviewing physician should clearly and specifically so specify and explain why this is so.

An additional examination of the Veteran should be scheduled only if deemed necessary to provide the requested opinion.

5.  After completing the requested actions, and any additional notification and/or development warranted by the record, the RO should readjudicate the remanded claims in light of all pertinent evidence and legal authority and addressing all relevant theories of entitlement, including service connection as a qualifying chronic disability under 38 C.F.R. § 3.317.  If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative, if any, an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations, and affords the appropriate time period to respond

The appellant has the right to submit additional evidence and argument on the 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).



______________________________________________
T. MAINELLI
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs