Citation Nr: 1300524 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 09-44 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for nummular eczema with xerotic eczema as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1968, to include service in country in Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied entitlement to the benefit sought on appeal. In March 2012, the Board remanded the matter for further development. For the reason explained below, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND In March 2012, the Board remanded the matter to afford the Veteran a VA examination and obtain an opinion as to the cause of his current skin disorder, to include whether it as likely as not resulted from his confirmed in-service exposure to herbicides. The Board also noted that the record contains a private treatment record dated in November 2008, which shows that the Veteran's nummular eczema with xerotic eczemas "may be due to Agent Orange" exposure in Vietnam. This evidence, it was explained, indicates that the current skin disorder may be related to the in-service event of herbicide exposure. Because the Veteran had never been afforded a VA examination in order to determine the nature and etiology of any current skin disorder, to include nummular eczema with xerotic eczemas, one was to be scheduled. In the Board's remand directives, it specifically required that the VA examiner discuss the November 2008 private physician's opinion. The Veteran underwent VA examination in May 2012. His diagnosis was confirmed as nummular eczema and it was noted to have been diagnosed in 2008. The examiner noted that there was no evidence of a skin condition while the Veteran was in service and that there is no evidence that the condition is related to Agent Orange. The examiner went on to explain that the fact that the skin disorder manifested in 2008 argues against Agent Orange exposure as a cause. The examiner, however, failed to mention the November 2008 private examiner's statement and provided no information to either support or refute that statement. As a discussion of this evidence was specifically required by the Board's March 2012 remand, it was error on the part of the examiner to ignore the November 2008 statement. The Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Board must once again remand the matter for compliance. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should return the examination report to the May 2012 VA examiner for an addendum, if possible. If that examiner is unavailable, schedule the Veteran for a new VA examination to evaluate his claimed skin disorder. A copy of the claims folder and this REMAND must be made available to the examiner in conjunction with the examination. The examination report must include an assessment of whether any currently diagnosed skin disorder, to include the nummular eczema with xerotic eczemas, is at least as likely as not (50 percent likelihood or greater) causally or etiologically related to the Veteran's active service, to include exposure to herbicides. This opinion must include comment on the November 2008 private treatment record which states that the nummular eczema with xerotic eczemas may be related to Agent Orange exposure during service. If the examiner finds that the November 2008 record is not an adequate piece of supportive evidence, from a medical standpoint, the examiner should explain why. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. Thereafter, the RO/AMC should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the requested examination report and required medical opinion should be reviewed to ensure that they are responsive to and in complete compliance with the directives of this remand and if not, corrective procedures should be implemented. The Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). 3. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran has the right to submit additional evidence and/or argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until he is notified. 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 Supp. 2012). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).