Citation Nr: 1608806 Decision Date: 03/04/16 Archive Date: 03/09/16 DOCKET NO. 12-14 337A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a skin disability. 2. Entitlement to service connection for a right foot disability. 3. Entitlement to service connection for a right knee disability, claimed as secondary to a service-connected left foot disability. 4. Entitlement to service connection for a left knee disability, claimed as secondary to a service-connected left foot disability. 5. Entitlement to service connection for a left shoulder disability. 6. Entitlement to service connection for a lumbar spine disability, claimed as secondary to a bilateral knee disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Martz Ames, Counsel INTRODUCTION The Veteran had active service from June 1982 to April 1986, and had additional service in the Tennessee Army National Guard from April 1986 to June 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2010 (issued in August 2010) and December 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. As pertinent to this appeal, the July 2010 rating decision denied service connection for right and left knee disabilities, a left shoulder disability, and a back disability. The December 2011 rating decision denied service connection for a skin disability and a right foot disability. The Veteran testified at a hearing in December 2014 before the undersigned. A copy of the transcript is of record. In March 2015, the Board denied service connection for a skin disability and remanded the other issues listed above for additional development. The March 2015 Board decision also granted service connection for tinnitus and denied service connection for left ear hearing loss. The Veteran appealed his case to the U. S. Court of Appeals for Veterans Claims (Court), and in a November 2015 Order, the Court granted the parties' Joint Motion for Partial Remand (Joint Motion), vacated the Board's March 2015 denial of service connection for a skin disability, and remanded the matter to the Board for development consistent with the Joint Motion. The parties specifically stated that they did not wish to disturb the denial of service connection for left ear hearing loss. Relevant to the issues remanded in the March 2015 Board decision, the development ordered has been completed. The issues of entitlement to service connection for a right foot disability, a right knee disability, a left knee disability, a left shoulder disability, and a lumbar spine disability have not been recertified to the Board. Because the development is completed, including the issuance of an SSOC in December 2015, the Board may take action with regard to these issues. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND With regard to the Veteran's skin disability, the parties to the November 2015 Joint Motion agreed that the AOJ did not make proper attempts to obtain private medical records from Dr. K. M., nor did they properly notify the Veteran as to actions taken to obtain the records. Additionally, the parties agreed that the November 2010 VA skin examination was inadequate because the examiner only provided an opinion as to a facial skin condition and not the Veteran's other skin conditions which were located on other parts of his body. On remand, the AOJ must correctly attempt to obtain records from Dr. K. M. and provide the Veteran with a new VA examination. With regard to the remaining issues, in December 2015, the Board notified the Veteran that the Court had granted a Joint Motion and remanded his skin claim for additional development. The letter invited the Veteran to submit additional evidence to the Board and state whether he wished to waive initial AOJ consideration of the evidence or require that the Board remand his case for initial AOJ review of the evidence. In January 2016, the Veteran submitted additional medical evidence pertinent to his orthopedic claims. He requested that the Board remand his case to the AOJ for initial consideration of this pertinent evidence. Therefore, his claims of service connection for a right foot disability, a right knee disability, a left knee disability, a left shoulder disability, and a lumbar spine disability are remanded so the AOJ may consider the newly submitted medical evidence. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a release form for medical records generated by Dr. K. M. and if he returns the requested information, attempt to obtain the records. If he provides the requested information, two attempts should be made to obtain any relevant private treatment records, unless a formal finding can be made that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) (2015). 2. Schedule the Veteran for an examination with an appropriate clinician for his skin disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: i. Service Treatment Records (STRs) from July 1982, August 1982, and February 1983 noting treatment for a rash in the groin area. ii. An August 1984STR noting treatment for a thigh rash. iii. A March 1985 STR noting a carbuncle on the left thigh. iv. An August 1985 STR noting a face rash. v. A May 1986 STR noting tinea versicolor, a right pubis infestation, and a furuncle. vi. The report of the November 2010 VA examination. c. The examiner must provide all diagnoses applicable to the Veteran's skin disability. For each diagnosis provided, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the skin disability began during active service or is related to an incident of service. d. The examiner must also specifically provide an opinion as to whether it is at least as likely as not that the Veteran's seborrheic dermatitis that was diagnosed at the November 2010 VA examination began during active service or is related to an incident of service. e. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion, as well as specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 3. The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. After undertaking any additional development deemed necessary, review the evidence of record, including the evidence submitted directly to the Board in January 2016, and readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 2014). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).