Citation Nr: 1752963 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 14-04 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for skin disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1972 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In November 2014, the Veteran appeared with his representative for a videoconference hearing before the undersigned. A transcript of that proceeding has been associated with the record. This matter was remanded by the Board in February 2015 for additional development. The matter has been returned to the Board for appellate consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A review of the record reveals that the claim must again be remanded for additional development prior to appellate consideration. Where, as here, VA undertakes to provide an examination or obtain an opinion when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). For the reasons set forth below, the Board finds that the Veteran has not been provided an adequate VA examination for purposes of determining service connection that adequately considers all of the evidence of record pertaining to his claimed disability, and the Board must therefore remand for additional development. In particular, report of the August 2015 VA skin examination reflects, in pertinent part, a diagnosis of dermatitis. Based on a review of the evidence, the examiner concluded that he "cannot confirm that the Veteran's current skin condition is a result of his military service without resorting to mere speculation at this time." In doing so, the examiner noted the Veteran's statements regarding onset of symptoms in service, i.e., Germany, and that he sought treatment with a private medical physician since service. However, the examiner emphasized the absence of any contemporaneous medical evidence until in or around 1998. For instance, he noted that the June 1975 separation examination indicated the Veteran's skin was "normal." Moreover, the examiner intimated that the Veteran's failure to file a claim for skin disability for more than two decades after service undermined his credibility. Additionally, the examiner noted the Veteran's pre-existing history of hay fever, i.e., an allergy condition. The examiner explained that it seems likely the Veteran had a pre-existing disposition toward skin conditions to the extent that skin conditions are often seen in individuals with a history of hay fever. First, the examiner's statement that he "cannot confirm that the Veteran's current skin condition is a result of his military service without resorting to mere speculation at this time" creates ambiguity (even when considering the report as a whole) as to whether the examiner applied the appropriate legal standard, i.e., a 50 percent or better probability. See Barr, supra. The phrase "at this time" also creates ambiguity as to whether any additional evidence would permit such an opinion to be made. Second, the examiner's intimation that the Veteran's report of ongoing symptomatology since service lack credibility due, presumably, to the lack of contemporaneous medical evidence is inappropriate. It is well-established that a Veteran is competent to report observable symptomatology. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of a disability even where not corroborated by contemporaneous medical evidence). The apparent failure to consider the Veteran's statements regarding matters which he is competent to testify to renders the examiner's opinion inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Lastly, the examiner's apparent focus on the Veteran's predisposition and/or susceptibility to skin conditions due to a history of hay fever, rather than whether the Veteran's current disability is caused by or otherwise etiologically related to service, is also erroneous. Although the Veteran's reported a history of "skin condition" at his September 1972 entrance report of medical history, no abnormalities of the skin were noted at the entrance medical examination, and no diagnosis of any skin disorder was made. The Board acknowledges that "noting only a history of a condition at the time of the entrance examination 'does not constitute a notation' of a preexisting condition." McKinney v. McDonald, 28 Vet. App. 15, 29 (2016) (internal citations omitted). As such, the Veteran is entitled to the presumption of soundness, and the examiner must offer an opinion as to whether it is as likely as not that the Veteran's current skin disability is caused by or otherwise etiologically related to military service. Accordingly, the case is REMANDED for the following action: 1. Arrange for the examiner who conducted the August 2015 VA examination, if available, to prepare an addendum opinion as to the nature and etiology of any claimed skin disability, and if deemed necessary, conduct new examinations of the Veteran. The electronic claims file must be made available to the examiner for review, and such review should be noted in the examination report. Following a review of the claims file and medical history, the VA examiner should offer an opinion as to the following: Does the Veteran have a skin disability? If so, the examiner should identify whether it is as likely as not (i.e., a 50 percent or better probability) that such disorder is caused by, or otherwise etiologically related to military service. Any opinion rendered should reflect consideration of the Veteran's lay statements regarding ongoing symptomatology. The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Thereafter, readjudicate the issue remaining on appeal. If the benefit sought on appeal remains denied, issue a supplemental statement of the case and provide the Veteran and his representative with an opportunity to respond. Then return the case to the Board, if otherwise in order. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).