Citation Nr: 1805421 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 12-00 241A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for cicatricial pemphigoid (CP), to include as secondary to radiation and/or chemical exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Baskerville, Counsel INTRODUCTION The Veteran served on active duty in the Navy from April 1968 to April 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In August 2014, the appellant testified at a travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the electronic claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In August 2016, the Board remanded the matter for an addendum opinion from the May 2015 VA examiner. The May 2015 examiner applied a higher standard of proof than is required in offering requested nexus opinions and analysis of the evidence of record. A Veteran need only show that a causal relationship between service and current disability is "at least as likely as not," while the examiner appears to have sought "conclusive" evidence on the question in stating that "there was no definite correlation" between the Veteran's CP and the alleged in-service chemical exposure. In a September 2016 addendum opinion, the May 2015 examiner opined, "After careful review and in the absence of firm opinion on the subject there is benefit of the doubt whether exposure to chemicals etc caused the chronic autoimmune blisterine disorder. I revise my opinion in view of the benefit of doubt that chemical exposure might have caused the said autoimmune disorder as some physicians have expressed agreement with that possibility." The RO found the opinion speculative and requested yet another addendum opinion which complied with the Board's remand directives. In April 2017, the May 2015 examiner opined, "Based on recent literature review, exposure to radiation and chemicals during service while working as weapons handler on the USS Ticonderoga in 1966 [sic] has no definite proof at this time and it was mentioned only in bullous type of pemphigoid etiology. There is no firm proof that radiation or chemical exposure leads to cicatrical pephigoif in the available literature so far." The Board finds that neither of the May 2015 examiner's addendum opinions provide the requisite evidence or appropriately answer the questions to adjudicate the Veteran's service connection claim. Neither the September 2016 opinion nor the April 2017 opinion state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's cicatricial pemphigoid is related to the Veteran's in-service chemical/radiation exposure. The AO did not comply with the Board's remand in this regard. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand "confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders"). Therefore, the Board finds that a remand is necessary to obtain an addendum medical opinion from a medical professional other than the May 2015 examiner. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate medical professional (OTHER THAN THE MAY 2015 EXAMINER, DR. S.A.) regarding the Veteran's claim. The Veteran's electronic claims folder, including a copy of this remand, must be available to the examiner for review. If the examiner feels another examination is necessary, another examination should be scheduled. The examiner is requested to offer an opinion as the following: Whether it is at least as likely as not (50 percent probability or greater) that there is a correlation between the Veteran's CP and the chemical exposure alleged by the Veteran. A complete rationale for the opinion is requested. The examiner's attention is directed to the Veteran's contention that his job as a weapons handler on the USS Ticonderoga in 1968, the USS Nimitz in 1972 through 1974 and the USS Saratoga in 1982, exposed him to radiation/chemicals which resulted in the development of his CP. The May 2015 examination report was returned since the examiner's rationale stated that "there was no definite correlation with chemical exposure noted in literature review." However, the standard for service connection cases is "at least as likely as not," and not "definite or conclusive" or one of "possibility." Subsequent addendum opinions from the May 2015 examiner in September 2016 and April 2017 were equally unhelpful to the Board's review as they expressed an opinion based on possibility rather than probability (50 percent or greater) and "firm proof." The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). The examiner's attention is also directed to a July 2008 letter from Dr. V.L. which states that she has treated the Veteran for CP, a chronic autoimmune blistering disorder. She states that "[t]he pathophysiologic mechanisms of [CP] are not completely understood, but a defect exists in immunoregulation." "There are different hypotheses about triggers, but no definite causes in most patients." 2. Ensure the development outlined above has been accomplished, and then readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and provide the appellant and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant 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 (West 2012). _________________________________________________ MICHAEL A. PAPPAS 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).