Citation Nr: 1803749 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-16 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a skin disorder, to include jungle rot and chloracne, to include as due to herbicide exposure. 2. Entitlement to service connection for a back disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army, the Army National Guard of Texas, and the Army Reserves from December 1965 to October 1975, March 1979 until March 1981, June 1986 to November 1988, February 1990 to August 1991. For his service, the Veteran was awarded a Vietnam Combat Medal with 60 Device, among others medals. In March 2016 the Veteran presented hearing testimony by live videoconference before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the record. This matter was previously remanded by the Board in July 2016 and has since been returned for further appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Unfortunately, remand is again required in this case. When VA undertakes to obtain an examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Opinions, which typically concern service connection issues, must be based on accurate facts and supported by a fully articulated rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Reonal v. Brown, 5 Vet. App. 458 (1993). With regard to the Veteran's claim for service connection for a back condition, a May 1975 STR noted the Veteran complained of a back problem and was given wintergreen. In his December 2002 notice of disagreement, the Veteran wrote that he injured his back while offloading a transport in Vietnam. In March 2003, he further clarified that after he injured his back he was told by medical staff that his injuries were not serious, and he was able to perform with very little complaining. He reported that over the years his injuries worsened and caused much pain. The Veteran underwent a VA back examination in November 2016, with an addendum provided in January 2017. The examiner reported that the Veteran's service records were silent for low back complaints. Based on the lack of evidence of lower back symptoms until 1999 when the Veteran suffered a work related injury, the examiner concluded the Veteran's currently diagnosed lower back disorder was not related to his period of active service. The 2016 examiner did not address the in-service report of back problems. The examiner also did not elicit testimony from the Veteran regarding the mechanism of back injury, or otherwise reference the Veteran's written statements regarding his in-service injury included in the claims file. As the opinion is based on an inaccurate and incomplete reporting of the facts, remand is required for an adequate addendum opinion. Similarly, remand is required to secure an adequate medical opinion on the etiology of the Veteran's claimed skin disorder. The Veteran underwent a VA skin examination in November 2016, at which time the examiner noted a 2012 diagnosis of tinea pedis. On examination, the Veteran had pruritic scaly lesions on both feet and changes in all nails consistent with tinea pedis. The examiner noted that service medical records were silent for a skin disease. The examiner explained tinea pedis was a fungal infection commonly seen in soldiers exposed to wet, humid environments such as Vietnam. The examiner was unable to provide an opinion on whether the Veteran had tinea pedis in service without resorting to mere speculation due to insufficient objective medical evidence. While the examiner expressed they were unable to provide an opinion as to whether the Veteran had tinea pedis in service, the examiner did not address the central question as to whether the Veteran's currently diagnosed tinea pedis was related to service, to include exposure to herbicides. Last, on remand appropriate efforts should be made to secure all outstanding VA treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his claimed lower back disorder. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's lower back disorder had onset in, or is otherwise caused by, the Veteran's military service. The examiner must specifically do the following: 1) elicit testimony from the Veteran regarding the in-service back injury and the nature of his symptoms thereafter; and 2) review the May 1975 treatment record noting a complaint of back problems. 4. After any additional records are associated with the claims file, return the claims folder to an examiner qualified to opine on the etiology of the Veteran's tinea pedis for an addendum opinion. The entire claims file should be made available to and be reviewed by the examiner. A new examination should be provided only if deemed necessary by the examiner providing the requested addendum opinion. All indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the currently diagnosed tinea pedis had onset in, or was otherwise caused by, the Veteran's military service. The examiner must specifically address the March 2016 hearing testimony of the Veteran regarding his in-service skin problems of the feet for which the he was given foot powder. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. Ensure compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. MILLIKAN 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) (2016).