Citation Nr: 1760300
Decision Date: 12/27/17 Archive Date: 01/02/18

DOCKET NO. 14-06 503 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina

THE ISSUES

1. Entitlement to service connection for skin rash condition (irritation).

2. Entitlement to service connection for a chronic back disability.

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

J. Tunis, Associate Counsel

INTRODUCTION

The Veteran served on active duty from December 2009 to July 2010.

This case comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2012 rating decision by the Department of Veterans’ Affairs (VA) Regional Office (RO) in Detroit, Michigan.

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

REMAND

The Veteran contends that she has a skin rash and a disability manifested by back pain as a result of her service.

The Veteran asserts that her back pain was not present until she entered the military. See April 2013 NOD. She explained that she never saw a doctor in service because she was told to take Motrin, and that it should go away, but that she was discharged before she had a chance to see a doctor. The Veteran states that she can rarely sleep on her stomach or sit for a long period of time. See January 2014 Correspondence. Private treatment records from September 2016 indicate complaints of back pain.

The Veteran states that she was told that she probably strained her lower back while unloading the ship’s inventory and loading them in the ship’s storage. See February 2013 Statement in Support of Claim. The Veteran also asserts that her back pain was present during boot camp. Id. During boot camp in the winter months, the roads were slippery in Seattle and she fell on ice many times. See January 2014 Correspondence. She was assigned to carry merchandise from the dock and the ship and in the required compartments, her back would ache after she fell and after carrying numerous boxes. Id. She said that she can rarely sleep on her stomach or sit for a long period of time. Id.

The Veteran also asserts that she has a skin rash and irritation as a result of her service, to include the prolonged use of a loofah. Private treatment records from January and February 2012 indicate a rash.

The Veteran states that while in boot camp her loofah was kept in a ziplock bag and that she was not able go to the commissary often. See February 2013 Authorization for Release of Information. Additionally, the Veteran asserts that during boot camp she was told by her petty officer to put lotion on it and that it was probably due to the extreme cold weather. Id. She explains that she was told to deal with minor problems. Id. Her skin developed round red rashes on her thigh, and that although the rashes come and go, the spots do not go away. Id. She states that today, she is unable to wear particular clothing and that she hates for people to see it. Id.

The Veteran requests a VA examination of her skin and back disabilities, of which she has not been afforded. See February 2014 Form 9.

VA’s duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. Under 38 U.S.C.A. § 5103A (d)(2) (West 2014), VA must provide a medical examination and, or, obtain a medical opinion, when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances under which a VA examination is required). The third element, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. Id. at 83.

The Veteran’s statements and treatment records indicate that the Veteran experiences symptoms of a skin and back disability, and the Veteran is competent to report her experienced symptoms as she observes them. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran also asserts that an in-service injury or occurrence related to her back and her skin in service. The Board notes that service treatment records are to be taken into consideration and reviewed by examiners, but that the absence of documented treatment in service is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Therefore, considering the Veteran’s statements as to her experiences in service, the Board finds that there is evidence of an in-service occurrence, a current disability, and a potential link between the two. Thus, VA examination is required. 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. at 79.

Thus, given the lack of sufficient medical evidence to make a decision on these matters, the Veteran should be afforded VA examinations to address the current nature and etiology of her back and skin disabilities.

Accordingly, the case is REMANDED for the following action:

1. Associate with the claims file any outstanding and updated VA treatment records, and any private treatment records. Should they exist, ensure that all records are properly scanned and labeled in Veterans Benefits Management System (VBMS)/Virtual VA.

2. Thereafter, schedule the Veteran for a VA examination with a medical professional of sufficient expertise to determine the nature and etiology of the Veteran’s back disability. The electronic claims file, to include the Veteran’s statements, must be reviewed by the examiner, and a note that it was reviewed should be included in the report.

(a) After reviewing the claims file and examining the Veteran, the examiner should identify any back disability. The examiner’s attention is directed to the Veteran’s asserted symptomatology as stated in January 2014 Correspondence.

(b) The examiner is also directed to opine whether it is at least as likely as not (a fifty percent probability or greater) that any diagnosed back disability was incurred in or is related to his active duty service, to include her carrying of boxes and asserted falls during boot camp?

The examiner’s attention is directed to the Veteran’s statements. See January 2014 Correspondence. See February 2013 Statement in Support of Claim.

While service treatment records are to be taken into consideration and reviewed by examiners, the absence of documented treatment in service is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

A detailed rationale for the opinions must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it.

If the examiner is unable to offer the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010).

3. After completing directive (1) to the extent possible, schedule the Veteran for a VA examination with a medical professional of sufficient expertise to determine the nature and etiology of the Veteran’s skin disability. The electronic claims file, to include the Veteran’s statements, must be reviewed by the examiner, and a note that it was reviewed should be included in the report.

(a) After reviewing the claims file and examining the Veteran, the examiner should identify any skin disability. The examiner’s attention is directed to the Veteran’s asserted symptomatology as stated in February 2013 Authorization for Release of Information.

(b) The examiner is also directed to opine whether it is at least as likely as not (a fifty percent probability or greater) that any diagnosed skin disability was incurred in or is related to his active duty service, to include her use of a loofah and assertions of symptoms during boot camp?

The examiner’s attention is directed to the Veteran’s statements. See February 2013 Authorization for Release of Information.

While service treatment records are to be taken into consideration and reviewed by examiners, the absence of documented treatment in service is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

A detailed rationale for the opinions must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it.

If the examiner is unable to offer the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010).

4. After the development directed above has been completed, readjudicate the issues on appeal. If the benefits sought on appeal are not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review.

The appellant 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.A. §§ 5109B, 7112 (West 2014).

_________________________________________________
MICHAEL A. PAPPAS
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 your appeal. 38 C.F.R. § 20.1100(b) (2017).

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