Citation Nr: 1323475 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 08-17 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a skin disorder, claimed as chloracne/skin disorder. REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his former spouse ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active service from April 1970 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In May 2009, the Veteran presented testimony relevant to his claim at a hearing held before a Decision Review Officer (DRO) at the RO. In August 2010, the Veteran also presented testimony relevant to his appeal at a Board hearing before the undersigned Veterans Law Judge, which was held at the local RO. Transcripts of the hearings are associated with the record. In November 2010, the Board found the Veteran's previously denied claim of entitlement to service connection for a skin disorder to be reopened by way of the submission of new and material evidence, and remanded the reopened claim for further evidentiary development. In September 2012 the Board again remanded the claim for further evidentiary development, specifically a supplemental medical opinion. The claim has since been returned to the Board for further appellate action. The Board has reviewed both the Veteran's physical claims file and the Veteran's electronic file through the "Virtual VA" system to ensure a complete review of the evidence in this case. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the delay, a review of the record reveals that this case must again be remanded for further evidentiary development and to ensure due process. This case was previously remanded in November 2010 to obtain an examination and medical opinion addressing the likelihood that any of the Veteran's currently diagnosed skin disorders are related to active military service. The Board specifically asked the examiner to discuss the lay statements submitted by the Veteran, his friends, and family, as well as the 1989 record listing a diagnosis of vesicular rash of the upper extremities. The Veteran was afforded another VA examination in December 2010. However, the Board found the examiner addressed neither the lay statements nor the 1989 rash. Therefore, the Board again remanded this case in September 2012. In the September 2012 remand, the Board requested a supplemental medical opinion be obtained addressing the likelihood of a relationship between the Veteran's claimed skin disorders and his service, specifically considering the lay statements submitted by the Veteran, his friends, and family asserting a continuity of symptomatology since service, as well as the finding of skin lesions in 1989. The examiner was also requested to consider a June 2011 surgical outpatient note suggesting that there is a correlation between the Veteran's skin disorder and in-service herbicide exposure. While the record reflects that a supplemental medical opinion was obtained in November 2012 pursuant to the Board's remand, upon review of the report, the Board finds that the medical opinion provided by the examiner with respect to the claim is inadequate. Although the examiner did not discuss the lay statements supporting a continuity of symptomatology since service, the examiner did specifically note that the lay statements were reviewed. The examiner further addressed the June 2011 surgical note. However, in explaining his rationale, the examiner made no mention of the 1989 Agent Orange examination that noted that the Veteran had a recurrent vesicular rash on his upper extremities. Where the RO does not comply with a remand by the Board, the Board errs as a matter of law when it fails to ensure compliance. Thus, in consideration thereof, we must again remand this matter. See Stegall v. West, 11 Vet. App. 268 (1998). On remand, the examiner must address the 1989 Agent Orange examination that notes a recurrent vesicular rash on the Veteran's upper extremities in offering an opinion on the likelihood of a relationship between the Veteran's claimed skin disorder and his service, to include presumed herbicide exposure. Accordingly, the case is REMANDED for the following action: 1. Obtain a supplemental medical opinion from an appropriate physician addressing the likelihood of a relationship between the Veteran's claimed skin disorder and his service, to include presumed herbicide exposure. There is no need to schedule further examination of the Veteran, unless the reviewer concludes such is necessary. Any relevant records, to include a copy of this Remand as well as the claims folder, must be made available to and reviewed by the reviewer/examiner in conjunction with the examination or review. The reviewer/examiner must confirm in the examination report that the claims folder was reviewed. a. Based on review of the record, the reviewer/examiner should render an opinion, for each diagnosis of a skin disorder, as to whether it is at least as likely as not (i.e., to a 50 percent degree of probability or greater) that it had its onset during military service or is otherwise causally or etiologically related to the Veteran's active service, to include any symptomatology shown therein, or whether such a relationship to service is unlikely (i.e., a probability of less than 50 percent). b. Based on review of the record, the reviewer/examiner should render an opinion, for each diagnosis of a skin disorder, as to whether it is at least as likely as not (i.e., to a 50 percent degree of probability or greater) that it is causally or etiologically related to presumed exposure to herbicide agents in service, or whether such a relationship to herbicide exposure is unlikely (i.e., a probability of less than 50 percent). c. In rendering the opinion, the reviewer/examiner should specifically consider the 1989 Agent Orange examination that notes a recurrent vesicular rash on the Veteran's upper extremities. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: It is important that, if any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon speculation, the reviewer/examiner should clearly and specifically so specify in the report, and explain why this is so. 2. Then, the RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. In this regard, in light of the prior remands, the RO should ensure that the examiner has answered all of the questions and addressed all of the evidence listed by the Board. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the requested report does not include adequate responses to the specific opinions requested, the report must be returned for corrective action. See Stegall v. West, 11 Vet. App. 268 (1998); 38 C.F.R. § 4.2 (2011). 3. When the development requested has been completed, the RO has ensured compliance with the requested actions, and any additional notification and/or development deemed necessary has been undertaken, readjudicate the claim, to include consideration of any records associated with the Veteran's Virtual VA folder not previously considered. If the benefit sought on appeal remains denied, provide the Veteran and his attorney with a SSOC and appropriate period of time to respond. Thereafter, return the case to the Board for further appellate consideration, if in order. 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 Supp. 2012). _________________________________________________ MICHELLE L. KANE 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).