Citation Nr: 18142217 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 11-24 112 DATE: October 15, 2018 REMANDED Entitlement to service connection for a skin condition, to include as due to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1966 to October 1972, with service in the Republic of Vietnam from November 1967 to October 1968. The Veteran served in the Republic of Vietnam during the Vietnam Era and is presumed to have been exposed to herbicide agents, such as Agent Orange, during his active duty service. 1. Entitlement to service connection for a skin condition, to include as due to herbicide agent exposure, is remanded. The Veteran’s claim was most recently remanded by the Board in August 2018. However, none of the required development was accomplished. Although the Board regrets the further delay, an additional remand is required to comply with the Board’s August 2018 remand directives. The Veteran seeks entitlement to service connection for a skin condition. At his January 2016 hearing before the Board, the Veteran testified that the skin on his scalp began to scale immediately upon returning from Vietnam in 1968, which he initially attributed to dandruff. The Veteran’s spouse also testified that she had been with the Veteran for 30 years (since approximately 1986) and that he had skin problems since at least that time. The Veteran indicated that his skin condition (manifested by redness, burning sensation, and itchiness) was initially limited to his scalp, but in recent years had spread to affect his entire body. The record reflects the Veteran has diagnoses of contact dermatitis, other eczema, and folliculitis, and “drug eruption vs. psoriasis vs. eczema,” during the pendency of the appeal. In June 2017, the Board remanded the Veteran’s claim to provide him with an examination to determine the etiology of all skin disorders diagnosed during the period on appeal. The record contains a January 2018 VA skin disorders examination report, in which the examiner found that the Veteran’s skin disorders were less likely than not related to active duty service, reasoning that service treatment records were silent for this condition and that immediate post military records within one year of discharge were unavailable documenting continuity and chronicity of the condition. The Board finds this opinion is inadequate because it clearly failed to consider the Veteran’s credible reports of experiencing a rash during and since service. A medical examiner cannot rely solely on the absence of medical records corroborating the incurrence or continuity of a disorder, and furthermore, cannot ignore a Veteran’s statements regarding lay observable symptoms. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (finding that an examiner “failed to consider whether [] lay statements presented sufficient evidence of etiology of [the veteran’s] disability such that his claim of service connection could be proven”). Based on the foregoing, a new examination and opinion is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). (CONTINUED ON NEXT PAGE) The matter is REMANDED for the following action: 1. Afford the Veteran a new medical examination by an examiner other than the one who performed the June 2016 VA skin examination. The Veteran’s claims file, to include a copy of this Remand, must be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished. Following an examination and a thorough review of all the medical and lay evidence of record, the examiner must: (a) First, list all skin condition diagnoses present during the appeal period (from February 2009 to the present), to include, but not limited to, dermatitis, eczema, folliculitis, and “drug eruption vs. psoriasis vs. eczema.” (b) Next, with regard to each diagnosed skin condition (even if it has subsequently resolved), state whether it is at least as likely as not (50 percent probability or higher) that the skin condition is etiologically related to the Veteran’s active duty service, to include as due to exposure to herbicide agents, such as Agent Orange. The examiner is advised that: • Exposure to herbicide agents, such as Agent Orange, is presumed. • A negative medical opinion based only on the fact that the Veteran’s diagnosed skin conditions are not on the list of diseases presumptively associated with herbicide agent exposure is not adequate. Service connection may still be established with evidence of direct causation. • A negative medical opinion based on the absence of contemporaneous medical records documenting a skin condition is not adequate. The examiner must specifically consider and discuss the Veteran’s competent and credible reports of symptoms during and since separating from active duty service. A complete rationale for the opinions must be provided with a complete discussion of the pertinent evidence of record, as well as the medical principles involved, which led the examiner to his or her conclusions. If the examiner cannot provide an opinion without resorting to speculation, he or she must indicate why this is so. 2. The Agency of Original Jurisdiction MUST review the examination report to ensure it is adequate and complies with the Board’s specific remand directives. If inadequate, corrective action must be taken at once. 3. The Veteran must be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for the scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record. 4. Then, Veteran’s claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel