Citation Nr: 1736676	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  12-18 530	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to a rating in excess of 30 percent for urticaria with cystic acne.  


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

S. Hurley, Associate Counsel 


INTRODUCTION


The Veteran had active military service from May 1993 to October 1993 and from February 1994 to February 1997.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which, in pertinent part, increased the disability rating for urticaria with cystic acne to 30 percent.  

This matter was before the Board in May 2017, at which time it was stayed until a final decision was issued by the United States Court of Appeals for Veterans Claims (CAVC) in the matter of Johnson v. McDonald, 27 Vet. App. 497 (2016).   A decision was subsequently issued in July 2017 and the stay has been lifted.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The Board finds that additional evidentiary development is required prior to adjudicating the claim of a disability rating in excess of 30 percent for urticaria with cystic acne.  

At the outset, the Board notes that updated treatment records from Kaiser Permanente Stonecrest from January 2016 to the present and from the Atlanta VA Medical Center from January 2015 to the present should be obtained and associated with the claims file.  Furthermore, the Veteran has identified VA facilities in August, Texas, and Temple, Texas that she has received treatment from and the records have not been associated with the claims file.  

Moreover, the Veteran was last afforded a VA examination in May 2012 and subsequently stated that her urticaria with cystic acne has worsened.  See 02/29/2016, VBMS, VA 21-4138 Statement in Support of Claim; 05/05/2016, VBMS, VA 646 Statement of Accredited Representative in Appealed Case.  Given these statements, along with the fact that the last examination was conducted over five years ago, the Board finds that the May 2012 VA examination is too remote to be considered a contemporaneous medical examination sufficient to ascertain the current level of the Veteran's urticaria with cystic acne.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (stating that VA is to provide a new examination where a Veteran claims the disability is worse than originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995).    

Accordingly, a remand is necessary in order to afford the Veteran an additional VA examination and to obtain updated treatment records.  

Accordingly, the case is REMANDED for the following actions:

1.  Obtain and associate with the claims file the Veteran's 
updated VA treatment records, including from the VA 
facilities in Atlanta, Georgia, August, Texas, and Temple, 
Texas.  All efforts to obtain the records should be 
associated with the claims file.  

2.  Obtain updated authorization and then associate with 
the claims file the Veteran's private treatment records 
from Kaiser Permanente Stonecrest from January 2016 
to the present.  All efforts to obtain the records should be 
associated with the claims file.  

3.  After #1 and #2 have been completed, schedule the 
Veteran for a VA examination to determine the nature 
and severity of her service connected urticaria with 
cystic acne.  The claims file, including this remand, 
should be reviewed by the examiner to become familiar 
with the Veteran's pertinent medical history.  The 
examination report must include a notation that this 
record review took place.  

The examiner should address the Veteran's treatment, 
to include systemic immunosuppressive therapy, 
antihistamines, and/or sympathomimetics, as well as 
the frequency of episodes, to include the frequency of 
any debilitating episodes.  See 38 C.F.R. § 4.118, 
Diagnostic Code 7825.  

4.  Thereafter, readjudicate the issue on appeal.  If the 
determination remains unfavorable to the Veteran, she
and her representative should be furnished a 
supplemental statement of the case which addresses all 
evidence associated with the claims file since the 
last statement of the case.  The Veteran and her 
representative should be afforded the applicable time
period in which to respond.  

The appellant has the right to submit additional evidence and argument on the matter 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.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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 the appeal.  38 C.F.R. § 20.1100(b) (2016).
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