Citation Nr: 1341206 Decision Date: 12/13/13 Archive Date: 12/20/13 DOCKET NO. 07-34 800A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for cystic acne. 2. Entitlement to service connection for a nose condition or sinusitis. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran had periods of active duty (AD) service from July 1985 to July 1992, from December 2001 to April 2002, and from October 2006 to August 2008. He also had many years of additional service, including active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) in the Air National Guard. This appeal to the Board of Veterans Appeals (BVA/Board) is from February 2007 and June 2010 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2011, in support of his claims, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. The Board subsequently, in February 2012, remanded the claims to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. Still more development is required, however, so the Board is again remanding the claims to the RO via the AMC. REMAND Unfortunately, the development requested in the Board's prior February 2012 remand was not accomplished satisfactorily, requiring another remand of these claims. Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board errs as a matter of law when it fails to ensure compliance with a remand directive). First, the Board asked that the RO/AMC clarify the dates on which the Veteran was on AD, ACDUTRA, and INACDUTRA. Instead of investigating the matter, the RO/AMC sent the Veteran a letter asking him to provide the necessary details. This is information, however, that he might not possess. The RO/AMC therefore needs to try and obtain this requested information by other means. Next, the Board asked that the RO/AMC schedule a VA examination for an opinion regarding the etiology of the claimed cystic acne and nose condition/sinusitis. The opinion obtained is inadequate because it is conclusory and devoid of rationale. Specifically, on examination in November 2012, the VA examiner opined that these conditions were less likely than not related to the Veteran's service. The VA examiner's stated rationale was simply that "[a]cne and sinusitis is (sic) less likely to be caused sec to active duty." This bare statement does not explain the examiner's conclusion or reasoning satisfactorily, so it is inadequate, requiring a remand for clarification or supplemental comment. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight). The Board emphasizes, moreover, that the examiner did not answer all of the questions posed in the February 2012 remand. Specifically, he failed to opine regarding aggravation. In this respect, too, corrective action is mandatory. Stegall, supra. Finally, the Veteran is additionally claiming derivative entitlement to a TDIU. In April 2013, he sent word that he had been granted disability benefits from the Social Security Administration (SSA) and enclosed information from SSA showing that disability benefits had in fact been granted. However, the medical records underlying SSA's determination were not provided. They are relevant because the Veteran's SSA disability benefits are based on a back disability for which he is also in receipt of service connection. Thus, a showing that the service-connected disability results in an inability to work in a substantially gainful capacity would be relevant to the TDIU claim he has filed with VA. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Clarify from a source other than the Veteran himself the exact dates he was on regular active duty (AD), active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). 2. Obtain from SSA the records concerning the Veteran's successful claim for disability benefits from this other Federal agency, including especially the medical records considered or relied upon in making the determination. 3. Upon clarification of the Veteran's service insofar as when he was on AD, ACDUTRA and INACDUTRA, and receipt of all SSA records, schedule VA compensation examinations for medical nexus opinions concerning the etiologies of his claimed cystic acne and nose condition or sinusitis, but especially in terms of the likelihood (very likely, as likely as not, or unlikely) these disorders: (1) initially manifested during his AD or ACDUTRA military service, including especially during his periods of AD service from July 1985 to July 1992, from December 2001 to April 2002, and from October 2006 to August 2008; (2) alternatively, if pre-existing, were aggravated during or by these periods of service; or (3) are otherwise related or attributable to his service, whether on AD, ACDUTRA or INACDUTRA, including to any relevant complaints or diagnoses in service. *Service connection is permissible for disability due to disease or injury incurred in or aggravated during AD and ACDUTRA, but only instead for disability due to injury (not also disease) incurred or aggravated during INACDUTRA. *Also, there is no presumption of service connection, soundness or aggravation for ACDUTRA and INACDUTRA service, only for AD service. To assist in making these important determinations, the designated examiner must review the claims file, including a complete copy of this remand and the Board's prior remand, for the Veteran's pertinent medical and other history. The term "as likely as not" means at least 50-percent probability. It does however not mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion such as causation or aggravation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. All necessary diagnostic testing and evaluation needed to make these determinations should be performed. The examiner must discuss the rationale of the opinions, whether favorable or unfavorable, if necessary citing to specific evidence in the file supporting conclusions. 4. Then readjudicate these claims in light of the additional evidence. If these claims are not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ KEITH W. ALLEN 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).