Citation Nr: 1803438 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 11-06 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a skin condition. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Sami, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from October 1976 to February 1977 and from February 1978 through October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office that denied service connection for dermatitis or eczema. This matter was previously remanded in August 2014, November 2016, and June 2017 for further development. As discussed below, the Board remands this appeal in order to comply with the November 2016 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, in its prior August 2014, November 2016, and June 2017 decisions the Board found that issues of entitlement to service connection for headaches and night sweats had been raised by the record in an August 2009 notice of disagreement, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). As the Board did not have jurisdiction over the claims, it referred them to the AOJ for appropriate action. To date, no action has been taken as concerning these issues. Accordingly, they are again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. The Board has determined that the independent medical opinion obtained in January 2017 does not substantially comply with the November 2016 Board remand directives, which specified that the Veteran should be afforded a VA examination. See Stegall, 11 Vet App. at 271. Historically, the Veteran's service treatment records reflect that he was diagnosed with lichen simplex in 1978, and with contact dermatitis, nummular eczema, and tinea pedis in 1979. During the pendency of his current claim, the Veteran has skin diagnoses including dermatitis and eczema. In order to determine the nature and etiology of his asserted skin condition, the Veteran was afforded a VA skin examination in October 2014. See October 2014 VA Skin Diseases Disability Benefits Questionnaire (DBQ). Upon review, in November 2016, the Board determined that the DBQ examiner's negative etiological opinion addressed neither the Veteran's post-service treatment records showing treatment for skin conditions, nor his lay statements that he has continued to suffer from a rash since service. Notably, the Veteran told the examiner that his skin problems started during his active service in 1979. See October 2014 DBQ. His skin would break out in bumps on his face, abdomen, and lower legs, and his neck and face would worsen with shaving. Id. The Veteran also relayed that he still gets the rash around spring time every year. Id. The examiner noted "a flat red area . . . to the left lower leg" and indicated that the Veteran had dermatitis on five percent of the body. Id. However, the examiner failed to provide a rationale explaining how the Veteran's current diagnosis of dermatitis was not incurred in, as a result of, or otherwise etiologically connected to his service. Id.; see also November 2014 Board Remand. The examiner submitted an addendum in December 2016 that similarly failed to address the Veteran's lay statements. The Board's November 2016 remand instructions provided that the Veteran should be afforded a new VA skin examination to assist in determining the nature and likely etiology of his asserted skin disability. However, the Veteran was never examined. Instead, an independent medical opinion was obtained in January 2017, which was based upon the clinician's review of the claims file as opposed to a physical examination of the Veteran. The medical opinion referenced the previous October 2014 VA skin examination and an April 2010 dermatology consultation, and stated that the "remaining VAMC medical notes were negative for any objective, clinical evidence of the type of skin inflammation, dermatologic lesion description, location of lesion(s), and/or level of chronicity." See January 11, 2017, Independent Medical Opinion. Although the record reflects long gaps in any reporting, treatment, or observations for skin problems, it also contains other instances in which VA health professionals have observed Veteran's skin problems or documented his reports of skin problems. Furthermore, entitlement to service connection benefits does not solely rest on showing that the Veteran's current skin pathology began in service, or is similar to his skin condition in service. The Board also seeks to understand whether the Veteran's service or in-service skin condition caused or contributed to his present skin condition. Accordingly, remand is warranted for a VA skin examination that addresses the questions posed by the Board in its November 2016 remand, as well as to afford the Veteran a new VA examination in connection with the opinion rendered. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding records of VA treatment since January 2017. 2. Thereafter, upon receipt of all additional records, and any additional notification and/or development deemed warranted, schedule an appropriate VA compensation examination to assist in determining the nature and etiology of his claimed skin disorder. The skin examination should be conducted during an exacerbation or active phase of the Veteran's skin condition, if possible, in coordination with the Veteran. In this regard, the Board notes that the Veteran has asserted that his skin breaks out during the spring. If the Veteran has a period of exacerbation of the disability before the VA examination can be scheduled, or if the examination cannot be scheduled in conjunction with an exacerbation, he should be advised of alternative ways to present evidence of the nature and severity of his skin condition, e.g., photographs. Efforts to schedule the Veteran for an examination during an active period of his recurrent skin condition must be documented, and such documentation associated with the claims file. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. All diagnostic testing or evaluation deemed necessary should be conducted and the results reported. After eliciting a full history from the Veteran, conducting a complete review of the claims file, performing an examination of the Veteran, and completing any clinically indicated diagnostic testing, the examiner should diagnose and describe in detail all current skin disorders found to be present. As to each skin disorder identified on examination or diagnosed during the pendency of the claim (e.g., dermatitis, eczema), the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such skin disorder had its clinical onset during military service or is in any way related or attributable to any in-service disease, event, or injury, to specifically include his lichen simplex, contact dermatitis, nummular eczema, and tinea pedis. The examiner must specifically consider and address any relevant records of treatment for skin conditions, to include any relevant VA treatment records or private treatment records diagnosing skin conditions. Additionally, for the purpose of rendering this opinion, the examiner should accept as true the Veteran's contentions concerning experiencing recurrent skin symptoms during and since his action service. In addition to any records that are generated as a result of this remand, the VA examiner's attention is drawn to the following: * February 9, 2017 Primary Care Physician Note (noting hypopigmented blotchy macules at both lower extremities and arms); * January 8, 2016 Primary Care Nursing Note (noting the Veteran's reports of a rash on the left side on his neck); * October 6, 2014 Disability Benefits Questionnaire (noting the presence of a rash on the Veteran's lower leg and reflecting the Veteran's reports of skin problems starting in 1979 and re-occurring every spring since that time); * April 8, 2010 Dermatology Outpatient Consult (noting that Veteran "presents c/o 'itchy'rash for 32 YEARS . . . vague diffuse papulo-squamos eruption on torso and extrematies"); * January 11, 2010 Primary Care Physician Note (noting "scaly prickly rash over entire body, no specific pattern"); * May 19, 2008 Primary Care Nursing Note (observing a rash on the lower abdomen). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. The Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of any identified disability. If the Veteran's reports regarding his history of symptoms of and treatment for any diagnosed disability are rejected, the examiner must provide a reason for doing so. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 that conclusion as it is to find against it. 3. Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any examination report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the Veteran's claim on appeal. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ ANTHONY C. SCIRÉ, JR 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).