Citation Nr: 21010720 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 20-11 489 DATE: February 25, 2021 REMANDED Entitlement to a disability evaluation in excess of 10 percent for a skin condition of the buttocks, scalp, bilateral legs, bilateral arms, and back is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1966 to May 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board acknowledges that it recently issued a separate decision for this Veteran in a different appeal stream under docket number 18-48 699. That decision remanded the issue of entitlement to service connection for a right foot bone spur so that additional records could be obtained and so that an intertwined issue could be adjudicated. That decision also acknowledged that additional issues were currently in remand status before the Agency of Original Jurisdiction after they were remanded in a March 2017 Board decision (remanding the issues of entitlement to service connection for right foot bone spur, back disability, hypertension, bilateral hearing loss, and tinnitus). As such, merger of the two appeal streams is not appropriate at this juncture and these issues will not be adjudicated in the decision herein. The Board additionally notes that a July 2020 docketing correspondence was not copied to the Veteran’s representative. Nonetheless, a June 2020 correspondence was copied to Vietnam Veterans of American notifying the Veteran that his appeal had been certified to the Board. In addition, a February 2021 correspondence was sent to Vietnam Veterans of America informing them that the deadline to submit an Informal Hearing Presentation was 120 days for all cases certified to the Board. The correspondence summarized that the Board had previously notified their organization, the appeal had been assigned to them for over the 120 days, and to date an Informal Hearing Presentation had not been received. They were notified that the case would proceed to adjudication. Furthermore, the Board emphasizes that the Veteran did not request to testify at a Board hearing on his March 2020 VA Form 9. The appeal was subsequently certified to the Board in May 2020, with the Veteran receiving written notice that his appeal had been formally placed on the Board docket in July 2020. This July 2020 correspondence notified the Veteran that he had 90 days from the date of the correspondence or until the Board issued a decision in his appeal (whichever occurred first) to submit additional argument or evidence. See generally, 38 C.F.R. § 20.1304. However, it was not until February 2021, nearly 200 days later, that the Board received correspondence from the Veteran’s representative requesting that a Board videoconference hearing be scheduled. If a hearing request is received more than 90 days after notice of certification, then the appellant must show good cause for the delay. 38 C.F.R. § 20.1304(b). Here, the request for a hearing was not received within 90 days the date the Veteran was notified of certification of his appeal to the Board. Further, he was informed of this 90-day period in the July 2020 correspondence, and good cause has not been offered for the delay. Consequently, the Board does not accept the delayed hearing request. The Veteran seeks a disability evaluation in excess of 10 percent for his service-connected skin condition of the buttocks, scalp, bilateral legs, bilateral arms, and back. Unfortunately, additional development is necessary before this claim can be adjudicated on the merits. The Veteran was most recently afforded a VA Skin Diseases examination in January 2020, at which time he was diagnosed as having eczema and dermatophytosis (including tinea pedis). At that time, the Veteran complained of recurrent rash/lesions with bumps and itching on the top and back of his scalp, on the back of the neck, on the back of the shoulders and scapular areas, and on both upper arms. Subjectively, the Veteran complained of severe itching on the scalp, back, and arms. Crucially, however, the examiner indicated that this recurrent rash was not present on the lower back, upper arms, or groin at the time of the examination. The VA examiner found that the Veteran’s eczema affected only 5 percent to 20 percent of his total body area, and less than 5 percent of his exposed body area. The examiner also found that the Veteran’s tinea pedis affected less than 5 percent of his total body area, and less than five percent of his exposed body area. The examiner noted that the Veteran had a skin condition currently without any visible characteristic lesions at the time of the examination. The Veteran requests a new VA examination to more fully assess the severity of his skin condition. Specifically, on his March 2020 VA Form 9, the Veteran argued an error was made concerning the percentage of his back affected by his service-connected skin condition, which the Veteran believes is chloracne. Several color photographs depicting various parts of his body, presumably at a time when his skin condition was in a period of exacerbation, were received in August 2020. When a claimant's medical history indicates that a Veteran's condition undergoes periods of remission and recurrence, VA is required to provide a medical examination during the period of recurrence. Ardison v. Brown, 6 Vet. App. 405, 407 (1994); Voerth v. West, 13 Vet. App. (1999) (feasibility of scheduling an examination during an exacerbation is a factor in determining whether VA has a duty to provide such an examination). As such, to the extent feasible, the Veteran should be scheduled for another VA examination during a period of exacerbation of his service-connected skin condition. If it is not feasible to schedule another VA examination during a period of exacerbation of the skin condition, then an addendum opinion should be obtained which documents the percentage of the body affected by the skin condition based on a review of the photographs provided by the Veteran in March 2020. The matters are REMANDED for the following action: (Continued on the next page)   1. Reasonable attempts should be made to schedule the Veteran for an examination of his service-connected skin condition of the buttocks, scalp, bilateral legs, bilateral arms, and back during a period of exacerbation of the condition. All efforts to schedule the Veteran for such an examination must be fully documented in the claims file. If it is not feasible to schedule another VA examination during a period of exacerbation of the skin condition, then an addendum opinion should be obtained which documents the percentage of the body affected by the skin condition based on a review of the photographs provided by the Veteran in August 2020. The examiner should measure and record all objective findings and subjective complaints including measuring the percentage of the body and exposed area affected by the skin condition. 2. After completing the above requested action, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, then the Veteran and his representative should be furnished a Supplemental Statement of the Case (covering all evidence submitted by the Veteran since the February 2020 Statement of the Case) and given an opportunity to respond thereto. The case should then be returned to the Board for further appellate action, if in order. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.