Citation Nr: 0001486 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 94-01 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for a chronic skin disorder, including boils. REPRESENTATION Appellant represented by: Barbara J. Cook, Atorney at Law WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD R. L. Shaw, Counsel INTRODUCTION The veteran had active military service from April 1969 to April 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 25, 1992, rating decision by the Albuquerque, New Mexico, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for residuals of a boil on the right side of the neck. The veteran testified at a travel board hearing at the RO on December 10, 1993, in connection with his appeal. The Board subsequently remanded the case to the RO on March 21, 1996, to obtain the report of a preemployment VA examination performed in 1977 and to schedule the veteran for a VA examination to evaluate the nature and severity of the claimed skin disorder and determine its etiology. The RO subsequently determined, in May 1996, that no copy of the 1977 examination report was available from the VA Human Resources Management archives. A VA dermatology examination was performed in May 1996. On October 15, 1997, the Board rendered a decision which denied service connection for a chronic skin disorder affecting the back, neck, chin and ears, finding that the medical evidence of record did not establish that there was a relationship between a skin boil on the neck during service and post service dermatological problems. By an order issued on April 2, 1999, the United States Court of Appeals for Veterans Claims (known before March 1, 1999, as the United States Court of Veterans Appeals) (Court) vacated the Board's October 15, 1997, decision for further development and readjudication consistent with an APPELLEE'S MOTION FOR REMAND, FOR ACCEPTANCE OF THIS MOTION IN LIEU OF A BRIEF, AND FOR A STAY OF PROCEEDINGS filed by the Secretary for Veterans Affairs (Secretary). The order noted that the Secretary's motion for remand conceded that the Board failed to discuss a precedent opinion of the VA General Counsel, OPVAGCPREC 67-90, and that orders contained in the Board's May 1996 remand order had not been fully complied with. The case is presently before the Board for further proceedings consistent with the Court's order. The September 1992 rating decision from which the veteran's original appeal was taken deferred consideration of the veteran's application for service connection for a disability manifested by spider-like lesions on the chest alleged to be due to exposure to a herbicide, Agent Orange, pending promulgation of relevant VA regulations. The October 1997 Board decision reminded the RO that appropriate action was still necessary on this deferred issue. In July 1999, the RO adjudicated the issues of entitlement to service connection for post-traumatic stress disorder and pension, but took no further action with respect to the claim for a disability manifested by spider-like lesions due to claimed herbicide exposure. This matter is not before the Board but remains in a pending status and should receive appropriate consideration from the RO. The Board again reminds the RO that further action should be undertaken on this issue. FINDING OF FACT The Board has previously conceded that the veteran's claim for service connection for a skin disorder is well grounded. CONCLUSION OF LAW The claim of entitlement to service connection for a skin disorder manifested by boils is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background Service medical records show that no skin abnormality was found on examination for enlistment in November 1968. Treatment records show that, in December 1969, he underwent a removal of a boil on the side of his neck. He underwent dressing changes for a period of two days afterward. No skin abnormalities were reported in subsequent treatment records. On examination for separation in March 1971, the skin was reported to be normal. Postservice medical records include a private medical report dated in October 1970 referring to a 2-centimeter sebaceous cyst near the right ear which had been present for four years. The cyst was removed. A few closed comedones were noted in the area. VA medical records include the January 1987 report of an Agent Orange examination showing that the veteran had a history of a lump on the neck, which was no longer present. The veteran filed his original claim for service connection for a skin disorder in April 1992. The veteran testified at a hearing before a traveling member of the Board at the RO in December 1993. He denied having had a history of skin problems before service, claiming that he had developed several boils on his back and neck about three months into his tour of duty in Vietnam and that the boils were treated in service either by drainage and removal or by medication. He claimed that he had been treated for the problem several times, not merely the one occasion shown in the service medical records. He stated that after service he continued to have problems with cysts and boils but did not receive any treatment for them until about 1979, when a cyst was removed from behind his right ear. He claimed to have current boils or cysts on the back of his right ear, on the pinna and on the chin. He described a skin rash which developed in service and which he attributed to wearing a flak jacket in Vietnam. The records from a private physician, C. Fletcher, M.D., show that, in June 1995, the veteran received treatment for sebaceous cysts on the chin and back. Acneiform scarring of the face was noted, with no active acneiform lesions. The veteran underwent a VA dermatological examination in May 1996. There was no evidence of a scar caused by the incision and draining procedure performed in service in 1969. Scars from the cyst removals in 1979 and 1995 were present. Examination showed multiple comedones on both sides of the neck and upper back and the examiner expressed the belief that they represented an adult form of acne vulgaris. An epidermoid cyst was noted over the right scapula. The physician commented that the veteran had a predisposition to acne vulgaris and the consequent development of epidermoid cysts. He expressed the opinion that the veteran's current cysts and comedones were unlikely to be related to service but were due to his basic predisposition to acne vulgaris. II. Analysis In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the Court issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet.App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. In the present case, the well-grounded nature of the veteran's claim for service connection for a skin disorder was conceded by the Board in the vacated October 1997 decision. A finding of well-groundedness was implicit in the motion by the Secretary which led to the order by the Court vacating the Board's decision. The finding of well- groundedness represents the "law of the case" and is binding on the Board. See Browder v. Brown, 5 Vet. App. 268 (1993). ("[Q]uestions settled on a former appeal of the same case are no longer open for review.... 'the principle law of the case' has been applied to the application of the law in decisions of Federal courts in cases remanded to administrative agencies." Browder at 270). Once a claim is established as well-grounded, the claimant's initial burden has been met, and the VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. ORDER The claim of entitlement to service connection for a skin disorder manifested by boils is well grounded. To that extent only, the appeal is allowed. REMAND The VA has a duty to assist the veteran in developing the facts pertinent to a well-grounded claim. 38 U.S.C.A. § 5107(a) (1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). In furtherance of the duty to assist, because the claim of entitlement to service connection for a skin disorder manifested by boils is well grounded, the Board remanded the claim to the RO in order for the veteran to undergo an examination to resolve medical questions raised by the veteran's claim. The report of the examination performed pursuant to the remand did not fully comply with the specifications set forth by the Board. The obligation of the RO to implement requests by the Board was discussed in a decision of the Court in the case of Stegall v. West, 11 Vet. App. 268 (1998), wherein the Court stated the following: The protracted circumstances of this case . . . demonstrate the compelling need to hold, as we do, that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. . . . It matters not that the agencies of original jurisdiction as well as those of the VA responsible for evaluations, examinations, and medical opinions are not under the Board as part of a vertical chain of command which would subject them to the direct mandates of the Board. It is the Secretary who is responsible for the "proper execution and administration of all laws administered by the Department and for the control, direction, and management of the Department." 38 U.S.C. § 303. Moreover, the Secretary is by statute both the one to whom a veteran may appeal an initial denial as a matter of right (38 U.S.C. § 7104(a)), and a party, represented by the General Counsel, to every appeal before this Court (38 U.S.C. § 7263(a)). Finally, we hold also that where, as here, the remand orders of the Board or this Court are not complied with, the Board itself errs in failing to ensure compliance. . . . (Emphasis added) The ruling in Stegall requires that the present appeal be remanded to the RO for reexamination of the veteran in a manner that satisfies the Board's previously stated requirements. Completion of the development previously requested will require that answers be provided for each of the questions asked. After the necessary development has been performed, the Board will be required under the Court's order to readjudicate the claim in light of a precedent opinion by the VA General Counsel pertaining to issues involving congenital or developmental disabilities. VAOPGCPREC 67-90 is cited by the motion as authority for the granting of service connection for disorders of a developmental or hereditary nature where the relevant symptomatology was not manifest until after entry into active duty or where symptoms manifest before service increase in severity. A later decision of the General Counsel, VAOPGCPREC 82-90, refines the rules regarding which congenital and developmental disorders may be service-connected and which ones may not. VAOPGCPREC 82-90 states that there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes in that congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. A congenital or developmental "defect," on the other hand, because of 38 C.F.R. § 3.303(c), is not service connectable in its own right though service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service. The Secretary's citation of the General Counsel opinion was evidently a response to a VA examiner's comments regarding the apparent presence of a congenital predisposition to develop certain skin disorders. However, neither of the above General Counsel rulings will be relevant to the ultimate determination as to service connection unless it is established that a chronic skin disorder of some kind is present. In order for the rules of law pertaining to congenital or developmental disorders to come into play, it must be established that the boils constitute some form of chronic pathological process representing an identifiable disability related to service, as distinguished from a random sequence of lesions that are not related to each other or to military service. Even then, they may not control the outcome. If the boils are found to be part of a disease process related to the boil documented during service, a grant of service connection would not be precluded by law, regardless of a congenital predisposition. On the other hand, if a chronic disorder manifested by cysts or boils is not found to exist, a basis for the granting of service connection would not be present, regardless of whether there is a chronic predisposition to develop one. Therefore, to satisfy the duty to assist, it will be necessary to obtain further medical opinion clarifying the extent to which the lesions are related to one another and to military service. Where the record before the Board is inadequate, a remand is required. Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the case is remanded for the following actions: 1. The RO and any physician to whom this case is assigned for an examination and/or a statement of medical opinion must read the entire remand, to include the explanatory paragraphs above the numbered instructions. 2. The RO should take appropriate steps to obtain any additional VA outpatient treatment records dated since July 1990, the date of the most recent records currently on file. 3. The veteran should be given an opportunity to identify all medical providers, both VA and private, including both physicians and institutions (hospitals or clinics), from which he has received examination or treatment for a skin disorder since military service. Upon receipt of proper authorization, the RO should attempt to obtain all available documentation from the providers identified by the veteran. 4. The RO should take appropriate steps to schedule the veteran for a special VA dermatological examination to determine the nature and etiology of all current skin pathology and ascertain its relationship to service, if any. All indicated tests and studies should be performed, and all clinical findings should be reported in detail. It is essential that the claims folder be provided to the examiner for review in conjunction with the examination, together with a copy of this remand. On the basis of current examination findings, review of the file, and any additional information obtained from the veteran, the examiner should address the various medical issues raised by this appeal and provide a full statement of the basis for any conclusions reached. Specifically, the examiner should: (1) Comment on the etiology of the cyst on the veteran's right ear; (2) State whether the cyst on the veteran's right ear is related to the boils on mid back and neck; (3) State whether there are any other skin disorders present; (4) If there are current skin disorders, state whether they are related to the boil on the veteran's back or neck; (5) Comment as to whether the veteran's rash is related to his cysts; and (6) Express a conclusion as to whether it is more likely than not or less likely than not that the postservice skin lesions represent a chronic pathological process, as distinguished from a series of unrelated lesions; if so, is it more likely than not or less likely than not that such process is related to active service? 5. After completion of the foregoing, the RO should review the examination report received to ensure that it satisfies the stated requirements of this remand. If all of the requested information has not been provided, the report should be returned as inadequate for rating purposes pursuant to 38 C.F.R. § 4.2 (1999). If this is necessary, the physician(s) who performed the examination should be given an opportunity to amend the report without reexamining the veteran but should be free to schedule a reexamination if necessary. All other necessary follow-up actions should be taken. 6. When the record is complete, the RO should review the issue on appeal. All applicable law and regulations should be considered, including the precedent opinions of the VA General Counsel numbered 67-90 and 82-90. If the determination is adverse to the veteran, a supplemental statement of the case should be prepared and the veteran and his representative should be given a reasonable period of time for reply. Thereafter, the claim should be returned to the Board for further review on appeal, if in order. No action is required of the veteran until he receives further notice. The purpose of this remand is to obtain additional information. The Board does not intimate any factual or legal conclusions as to the outcome ultimately warranted in this appeal. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. G. H. SHUFELT Member, Board of Veterans' Appeals