Citation Nr: 1805588 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-23 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a skin condition (to include rash / moles / urticaria / folliculitis). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from September 1972 to September 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of the St. Louis, Missouri Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veteran's Law Judge during an October 2016 hearing in San Antonio, Texas. A transcript is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay, this claim must be remanded for additional development. VA's duty to assist claimants in substantiating a claim for VA benefits includes a duty to make reasonable efforts to assist a veteran in securing evidence necessary to substantiate his claim. 38 U.S.C. §§5103A (2012); 38 C.F.R. § 3.159(c) (2017). In that regard, VA must make as many requests as are necessary to obtain relevant records from a Federal department or agency, including VA medical facilities or non-VA facilities providing examination or treatment at VA's expense. 38 C.F.R. § 3.159(c)(2). In addition, VA must make reasonable efforts to obtain records not in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c). A review of the record indicates that the Veteran's service treatment records have not been obtained and there is no indication in the claims file that adequate efforts were made to obtain them. As these records may support the Veteran's claim for service connection, a remand is necessary to obtain them. Furthermore, the Veteran indicated for the first time in his October 2016 hearing testimony that he received medical treatment for his skin condition from multiple private health care providers since service. Accordingly, he should be provided another opportunity to identify any relevant private treatment records pertaining to his skin condition, and to furnish VA with the necessary authorization to request those records on his behalf or to submit the records himself. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Finally, a remand is also necessary to obtain an adequate VA examination. VA's duty to assist includes obtaining a medical examination when such examination is necessary to make a decision on a claim. See 38 U.S.C. § 5103A(d). Furthermore, when VA undertakes to provide an examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the VA examination on file is inadequate to decide the claim because the examiner could not review the Veteran's relevant service treatment records that were not associated with the claims file and he relied on the lack of such records to find that the Veteran's skin condition was not incurred in service. See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995) (a medical opinion based on incomplete records is of limited probative value); Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (an examination is inadequate where the examiner fails to comment on a report of an in-service injury and relies on lack of evidence in service medical records to provide a negative opinion). Furthermore, in finding also that the Veteran does not currently suffer from a skin condition, the examiner failed to address the Veteran's lay statements about his skin condition, including that the severity of his rashes are significantly reduced by the use of certain medication. The Veteran has since alleged that the skin condition for which he claims service connection was not observable at the time of the VA examination. The United States Court of Appeals for Veterans Claims has recognized that some conditions, by their inherent nature, wax and wane and accordingly are sometimes active and other times not. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994). Thus, to adequately assess the Veteran's skin disability, the Board finds that the Veteran should be afforded a VA examination during a period when his condition is "active," if possible. The Board acknowledges the difficulties in attempting to schedule an examination during a period when the Veteran's skin condition is "active." The AOJ should therefore attempt to schedule an examination in consultation with the Veteran. Accordingly, the case is REMANDED for the following action: 1. Contact all appropriate records repositories and request a search for all of the Veteran's service records, including service treatment records, from September 1972 to September 1976. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and obtain the provider name, address, and approximate date of treatment for any additional treatment records that he would like VA to obtain. Obtain all records adequately identified by the Veteran, and for which the Veteran has signed the appropriate releases, and associate them with the claims file. If any identified records are not obtainable (or none exist), the Veteran should be notified and the record clearly documented. 3. After the above development has been completed, provide the Veteran with a VA examination by an appropriate medical professional to determine the nature and etiology of his skin condition. To the extent possible, schedule the examination in consultation with the Veteran as to when his skin condition is active. After a thorough review of all evidence in the claims file, to include the Veteran's service treatment records, post-service treatment records and the Veteran's lay statements of record, the examiner should provide the following opinions: (a) Clarify whether the Veteran has a current skin disability or disabilities. (b) Explain whether it is at least as likely as not (a 50 percent probability or greater) that any of the Veteran's current skin disabilities were incurred in or otherwise related to the Veteran's military service. The examiner should specifically address any in-service evidence of a skin condition and state whether any of the Veteran's current skin conditions are related to his in-service skin condition. A complete rationale must be provided for the opinions proffered. In rendering the requested opinions and rationale, the examiner must comment on the Veteran's lay statements about the onset and progression of his skin condition. The examiner is advised that the Veteran is competent to report observable symptomatology, and that the lay statements should be presumed to be credible for the purposes of this examination only. 4. To help avoid future remand, ensure that all requested actions have been accomplished, to the extent possible, in compliance with this Remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the claim that has been remanded. If any benefit sought in connection with the remanded claim is denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Veteran 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. §§ 5109B, 7112. _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).