Citation Nr: 0007666 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 96-35 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to an increased evaluation for a low back disorder, currently evaluated as 20 percent disabling. 2. Entitlement to an increased evaluation for arthritis of the cervical spine, currently evaluated as 10 percent disabling. 3. Entitlement to an increased (compensable) evaluation for lichen planus of the legs. 4. Entitlement to an increased evaluation for residuals of pes planus, with bilateral hallux valgus and hammertoe deformity, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD James A. Frost, Counsel INTRODUCTION The veteran served on active duty from June 1971 to June 1991. This appeal to the Board of Veterans' Appeals (Board) arises from rating decisions in July 1995 and January 1999 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In October 1999, the veteran appeared and testified at a personal hearing before the undersigned Member of the Board. In his testimony, he alleged that service-connected lichen planus of the legs had "spread" to his feet, arms, and back. He thereby appears to have asserted a claim of entitlement to secondary service connection for skin disease of the feet, arms, and back. That claim is referred to the RO for appropriate action. REMAND VA has a duty to assist the veteran in the development of facts pertinent to a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). When a veteran alleges that a service-connected disability has increased in severity, his claim for an increased evaluation is well grounded. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In the instant case, the Board finds that the veteran's increased rating claims are well grounded, and that further assistance in the development of facts is indicated. With regard to his back and neck, the veteran testified at the hearing in October 1999 that, since a VA examination in May 1999, the condition of his back and neck had worsened. Therefore, a new examination is required by Snuffer v. Gober, 10 Vet. App. 400 (1997), which held that VA did not fulfill the duty to assist the veteran in developing facts pertinent to his claim for an increased rating when the veteran stated that his condition had worsened after a VA examination. With regard to the skin, the veteran testified that his skin disorder was in an inactive phase at the time of a VA general medical examination in April 1998, but his skin disorder periodically became active. He testified that it was active on the day of the hearing and that he was also seen by the VA in August 1999, but the record had not been obtained. In view of the veteran's assertions additional development and a new dermatological examination is required by Ardison v. Brown, 6 Vet. App. 405 (1994), which held that the duty to assist was not fulfilled when the VA examination was during an inactive phase of a skin disease which had active phases. With regard to the feet, the VA general medical examiner in April 1998 did not report significant clinical findings. The veteran's representative has pointed out that the examiner did not discuss any functional loss due to the veteran's service-connected foot disability and did not refer to the criteria for rating pes planus. Under the circumstances, the Board finds that another examination of the veteran's feet is appropriate. The Board notes that, in evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, or weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999); DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The Board points out to the veteran that, when a claimant, without good cause, fails to report for a necessary examination, a claim for an increased evaluation shall be denied. 38 C.F.R. § 3.655 (1999). This case is REMANDED to the RO for the following: 1. The RO should obtain copies of all records of treatment of the veteran at VA facilities since May 1999 for disabilities of the low back, neck, feet, and skin, and associate such records with the other evidence in the claims file. 2. The RO should then arrange for the veteran to undergo examinations by specialists in orthopedics and dermatology. The orthopedic examiner should determine the current condition of the veteran's low back, cervical spine, and feet. In accordance with DeLuca, the orthopedic examination report should cover any weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, pain with use, and provide an opinion as to how these factors result in any additional limitation of motion. If the veteran describes flare-ups of pain of the low back and neck, the orthopedic examiner should offer an opinion as to whether there would be additional limits on functional ability during the flare-ups, and, if feasible, express this in terms of additional degrees of limitation of motion during the flare-ups. If the examiner is unable to offer an opinion as to the nature of any additional disability during a flare-up, that fact should be stated. With regard to the feet, the orthopedic examiner should offer an opinion as to the extent of functional loss, if any, after use of the feet, and comment on whether there is pain on manipulation, an indication of swelling on use, and/or characteristic callosities. The dermatological examination should only be scheduled by a VA Medical Center when the veteran advises the RO that he believes that his service-connected lichen planus of the legs is in an active phase. At the dermatological examination, the examiner should make findings as to the nature and extent of any active lichen planus of the legs and of any other body part, and he or she should offer an opinion as to whether lichen planus of the feet, arms, and back, if found, is related to a history of lichen planus of the legs. Following completion of these actions, the RO should review the evidence and determine whether the veteran's claims may now be granted. If the decision on any issue remains adverse to the veteran, he and his representative should be provided with an appropriate supplemental statement of the case and an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The purposes of this REMAND are to assist the veteran in the development of facts pertinent to his claim and to obtain clarifying medical information. By this REMAND, the Board intimates no opinion as to the ultimate disposition of the appeal. No action is required of the veteran until he receives further notice. The appellant has the right to submit additional evidence and argument on the matters which the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). STEVEN L. COHN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1999).