Citation Nr: 1801016 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 11-05 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a skin disorder of the face to include contact dermatitis. 2. Entitlement to service connection for a pulmonary disorder to include sleep apnea. 3. Entitlement to a rating higher than 10 percent disabling for residuals of right ankle and avulsion fracture, status post immobilization. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served in the U.S. Army National Guard from March 3, 1994 to July 21, 1994 and from February 11, 2003 to May 21, 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction of this matter has since been transferred to the RO in San Juan, the Commonwealth of Puerto Rico. The Board notes that the Veteran perfected an appeal to the September 2010 rating decision which denied service connection for several disabilities. In reviewing the Veterans Appeals Control and Locator System (VACOLS), however, it appears that these issues are pending further review and will be addressed by the Board in a separate decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran appeals the denial of service connection for contact dermatitis and a pulmonary disorder to include sleep apnea. He claims that he had skin problems and sleep apnea in service and that such conditions continued post service. Service treatment records show that in April 2003 the Veteran was treated for a rash on his face for seven days. An assessment given of contact dermatitis. In July 2011, Dr. V opined that the Veteran's sleep apnea was more probable than not caused by weight gain due to his service-connected ankle problems. He also noted that the Veteran was exposed to lead containing paint for days without masks during service. He opined that it was more probable than not that the Veteran's skin disorder is service-connected due to his duties in service. Pursuant to 38 U.S.C. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4)(i), VA will obtain an examination or an opinion if it is necessary to decide the claim. In light of the lay statements of record, opinion of Dr. V and service treatment records, the Board finds that a VA examination is needed for proper adjudication of the claims. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claims and to ensure full compliance with due process requirements, the claims for service connection are remanded. The Veteran also appeals the denial of an increased rating for his right ankle disability. In relation to this claim, the Veteran was last afforded VA examinations in May and September 2011. As the Veteran indicates a worsening of his disability since his last VA examinations and the Board finds that the VA examinations are too remote to adequately assess the severity of his right ankle disability, a remand is warranted to afford the Veteran an examination to ascertain the current level of severity of his disability. On remand, ongoing VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder any outstanding VA treatment records since October 2016. 2. Schedule the Veteran for a VA examination to determine if he has a pulmonary disorder to include sleep apnea that is related to service and/or is related to his service-connected right ankle disability. Access to the electronic claims files must be made available to the examiner for review. After examination and review of the record, the examiner must opine whether it is at least as likely as not, i.e., is there a 50/50 chance that the Veteran's disability had its onset in service or was caused by service; or whether it is at least as likely as not, i.e., is there a 50/50 chance that the Veteran's disability was caused and/or aggravated beyond the normal progress of the disorder by the service-connected right ankle. In providing this opinion, the examiner is requested to address an underlying question as to whether it is at least as likely as not that the Veteran's current obesity was caused or aggravated by the service-connected right ankle disability. In so doing, the examiner should consider and discuss the July 2011 opinion of Dr. V that the Veteran's sleep apnea was more probable than not caused by weight gain due to his service-connected ankle problems. The examiner's attention is also directed towards VAOPGCPREC 1-2017 which determined that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). The VA examiner should provide a complete rationale for any opinions provided. The examiner must reconcile any opinion with the service treatment and personnel records, any post-service diagnoses, lay statements and testimony of the Veteran. If he or she rejects the lay evidence, an explanation must be provided, and the examiner should note that the mere passage of time without treatment is not a sufficient basis for finding that no relationship between a current disability and service exists. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his skin disorder of the face to include contact dermatitis. Access to the electronic record must be made available to the examiner for review. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's skin disorder of the face had its onset in or is causally related to service. In providing this opinion, the examiner should address the Veteran's claim of exposure to lead containing paint, the in-service treatment for contact dermatitis and the July 2011 opinion of Dr. V that it was more probable than not that the Veteran's skin disorder is service-connected due to his duties in service. The VA examiner should provide a complete rationale for any opinions provided. The examiner must reconcile any opinion with the service treatment and personnel records, any post-service diagnoses, lay statements and testimony of the Veteran. If he or she rejects the lay evidence, an explanation must be provided, and the examiner should note that the mere passage of time without treatment is not a sufficient basis for finding that no relationship between a current disability and service exists. 4. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected right ankle disability. Access to the electronic record must be made available to the examiner for review. In accordance with the latest worksheets for rating the ankle, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints and the nature and extent of his disability. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The VA examiner should provide a complete rationale for any opinions provided. 5. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the issues on appeal. If the benefits sought are not granted, issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).