Citation Nr: 1752703 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 10-32 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a skin disorder, to include a rash, skin growths, and lentigo. REPRESENTATION Veteran represented by: James G. Fausone, Attorney at Law ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to September 1971, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In October 2016 and June 2017, the Board remanded the appeal for further development. As will be explained in greater detail below, the agency of original jurisdiction (AOJ) has not substantially complied with the prior remand directives, and further remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In the June 2017 remand, the Board determined that the AOJ failed to comply with the October 2016 remand directives. Specifically, the Board determined in its June 2017 remand that, contrary to the October 2016 directive that the Veteran be examined by a physician, the December 2016 VA examination was performed by a nurse practitioner. Furthermore, the Board determined that the opinion provided was inadequate as it failed to reflect consideration of the Veteran's lay statements concerning the onset and continuity of symptoms, and it failed to provide an adequate rationale as to why the Veteran's skin problems were more likely related to excessive post-service sun exposure. The Board requested that a new examination and opinion be obtained from a physician. In August 2017, the Veteran underwent another VA examination; however, as correctly noted by the Veteran's attorney in an October 2017 brief, the examination was performed by the same individual who performed the December 2016 VA examination. Furthermore, the examiner once again relied on the absence of any treatment for thirty seven years after discharge, and the opinion fails to reflect any of the Veteran's lay statement concerning the onset and continuity of symptoms following service. Finally, the examiner once again failed to provide an adequate rationale as to why the Veteran's skin problems were more likely related to excessive post-service sun exposure. The Veteran's attorney has argued that remand is necessary in this case, and the Board agrees. Therefore, the Board once again finds that there was not substantial compliance with the prior remand. The law mandates that where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall, supra. As such, further remand is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a new VA examination by a physician to determine whether any currently-diagnosed skin disorder is related to his military service. The record and a copy of this Remand must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. Following a review of the entire record, to include the Veteran's lay statements concerning onset and continuity of symptomatology, the examiner(s) should address the following: Is it at least as likely as not (i.e., a 50 percent or greater probability) that any skin disorder diagnosed since March 2009 had its onset during, or is otherwise related to, the Veteran's active duty service? In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding in-service incurrence and continuity of symptomatology, and the opinion should reflect such consideration. Specifically, the examiner should consider the Veteran's report of a rash at his April 2016 VA examination, as well as his report that it is the same type of rash he had in service. A clearly-stated rationale for any opinion offered should be provided and must not be based solely on the lack of any documented treatment in service or following service. 2. Thereafter, and after any further development deemed necessary, the issue on appeal should be reajudicated. If the benefits sought on appeal are not granted, the Veteran and his attorney should be provided with a Supplemental Statement of the Case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran 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. §§ 5109B, 7112 (2014). _________________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).