Citation Nr: 1626550 Decision Date: 07/01/16 Archive Date: 07/14/16 DOCKET NO. 11-19 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss. 2. Entitlement to an initial compensable rating for thoracic spondylosis prior to November 27, 2012 and in excess of 10 percent beginning November 27, 2012. 3. Entitlement to an initial compensable rating for residuals of right knee osteochondritis desiccant excision with scars prior to November 27, 2012 and in excess of 10 percent beginning November 27, 2012. 4. Entitlement to an initial rating in excess of 10 percent for tinea/pityriasis versicolor. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran had active duty in the Marine Corps from October 2006 to October 2010 that included service in Southwest Asia. This appeal to the Board of Veterans' Appeals (Board) is from January and June 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony in support of his claims during a November 2012 Travel Board hearing before the undersigned; a transcript of the hearing is of record. In October 2014, the Board decided 2 issues on appeal and remanded the remaining issues for additional development. By a rating action dated in May 2015, the non-compensable ratings assigned for thoracic spondylosis and residuals of right knee osteochondritis were each increased to 10 percent, effective from November 27, 2012. Since these increases did not constitute full grants of the benefits sought, let alone to the date of claim, the increased initial evaluation/rating issues remain in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993); Hart v. Mansfield, 21 Vet. App. 505 (2007). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND When the matter was Remanded in October 2014, the AOJ was directed to contact the Veteran and obtain the names of VA medical care providers who had treated him. The AOJ complied with these directives in January 2015. The Veteran did not respond. Regrettably, the Board overlooked the fact that the Veteran testified at his November 2012 that he had recently received VA treatment for his claimed disabilities, and that his representative asked that VA treatment records since the winter of 2011 should be obtained. Thus, despite the fact that the Veteran did not respond to the January 2015 letter, pertinent VA treatment records were specifically identified. VA has an obligation to obtain these records since they are constructively of record. Dunn v. West, 11 Vet. App. 462, 466-67 (1998). The AOJ should obtain all outstanding VA records. The Veteran most recently underwent VA examinations for his skin disability in July 2012 and May 2015. The disability was not active when these examinations took place, but both examiners estimated that the disability affected at least 5 percent but less than 20 percent of the entire body or exposed area. Neither examiner noted photographs the Veteran submitted of his skin disability in its active phase. These pictures were taken in May 2011 and show redness and outbreak on his face, neck, chest stomach, legs and back. See Medical Treatment Record - Government Facility received June 14, 2012. It is unclear if these pictures were considered in estimating the area affected, so a supplemental opinion is needed. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file copies of VA treatment records since 2011. 2. Make the Veteran's electronic file (Virtual VA and VBMS) available to the May 2015 VA examiner for a supplemental opinion regarding his service-connected skin disability. The physician must review the photographs and opine the degree to which the skin disability is shown affect him using the following ranges: * at least 5 percent but less than 20 percent of exposed areas or total body area, * 20 to 40 percent of exposed areas or total body area, or * More than 40 percent of exposed areas or total body area. 3. Afterwards, review the claims file to ensure that the aforementioned development and remand instructions have been completed. Any noncompliance found should be corrected with the appropriate development. 4. Then readjudicate the claims based on all of the evidence of record. If the benefit sough remains denied, furnish the Veteran and his representative a supplemental statement of the case and afford a reasonable opportunity to respond before returning the case to the Board for further appellate review, if appropriate. 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). These claims 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). _________________________________________________ MICHAEL A. HERMAN 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).