Citation Nr: 18159292 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-51 954 DATE: December 19, 2018 REMANDED Entitlement to service connection for a skin condition, to include tinea versicolor, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1967 to December 1968. This case comes to the Board from a March 2015 rating decision, in which the Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim for service-connected compensation for a claimed skin condition. Some of the Veteran’s written statements refer to his claim as a request “to reopen” a claim filed previously. But the Board has reviewed the claims file and finds no record of a decision denying any claim for service connection for any skin condition prior to March 2015. Thus, notwithstanding the Veteran’s description of his claim, there is no need for him to submit new and material evidence before the pending claim can be considered on its merits. Entitlement to service connection for a skin condition, to include tinea versicolor, is remanded. For several reasons, this case must be remanded for further development. In March 2016, together with his notice of disagreement, the Veteran submitted a list of medical providers. According to the Veteran, each physician on the list has “examined, diagnosed, and or treated this chronic skin condition.” VA has a duty to assist the Veteran in obtaining potentially relevant records not in the custody of a Federal department or agency. It is unclear whether the AOJ has ever requested records from the private physicians on the list. On remand, the AOJ should ask the Veteran to authorize the release of post-service treatment records from the physicians on the list submitted by the Veteran. In addition, a new VA examination is also necessary. When denying the Veteran’s claim, the AOJ relied on a VA skin diseases disability benefits questionnaire, dated February 2015. In this report, the examiner noted the Veteran’s description of a history of tinea versicolor which, the Veteran explained, typically becomes active in the warm summer months. The February 2015 examiner described her examination as “essentially negative for tinea versicolor” while acknowledging the Veteran’s statement that the condition typically manifests in “flare-ups” during the summer. If a disability is subject to flare-ups, a medical examination should, if possible, evaluate the condition during a flare-up. Compare Ardison v. Brown, 6 Vet. App. 405, 408 (1994) (examination was inadequate when administered during the inactive stage of the claimant’s condition), with Voerth v. West, 13 Vet. App. 117, 123 (1999) (the Board is not required to provide an examination during a flare-up where flare-ups lasted “only for a few days out of a year”). Through his representative, the Veteran has submitted a written statement, citing Ardison, and requesting that a new skin examination be scheduled during an active phase of his skin condition. Given the apparently seasonal nature of the Veteran’s claimed skin flare-ups, this request is reasonable. The February 2015 examiner indicated that she could not provide the requested medical opinion without speculating. This opinion is inadequate because an examiner must explain why the requested opinion requires speculation. See Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010). The February 2015 examiner did not, for example, explain whether she could provide the requested opinion if given additional evidence, whether an examiner with different qualifications could provide the requested opinion, or whether answering the examination request would be impossible within the limits of currently available medical knowledge. On remand, the AOJ should obtain a new medical opinion on the nature and etiology of the claimed skin condition. The post-remand examiner should consider records from multiple private dermatologists, submitted by the Veteran in March 2016, which were not available to the February 2015 examiner. If the post-remand examiner does not identify a current skin disease or condition, the examiner should further opine on the probability that such a condition existed between November 2003 and the present. Cf. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing or during the pendency of a claim meets the “current” disability requirement, even if the disability resolves before VA decides the claim). Although the AOJ only acted on the Veteran’s claim after he submitted it using a standard claim form in November 2014, there was no requirement that claims for service-connected disability compensation be submitted using a standard form when he submitted his initial claim in November 2003 or when he submitted a similar claim in August 2007. Prior to amendments to 38 C.F.R. § 3.1, which became effective on March 24, 2015, a claim was defined as “a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.” 79 Fed. Reg. 57,660, 57,662 (September 25, 2014). The November 2003 and August 2007 written statements from the Veteran satisfy this definition. The matter is REMANDED for the following action: 1. The AOJ should contact the Veteran and ask him to provide a written authorization for VA to obtain copies of any outstanding private treatment records which may be relevant to his skin claim, including any records of treatment the list of physicians in private practice he submitted with his notice of disagreement in March 2016. For each records request authorized by the Veteran, the AOJ should continue to attempt to obtain the relevant records until the records are obtained or until it is reasonably certain that further attempts to obtain them would be futile. The AOJ should write to the Veteran and notify him of the results of its attempts to obtain the records and give him the opportunity to submit copies of the records himself. 2. Schedule the Veteran for an examination with a qualified medical professional for the purpose of obtaining a new medical opinion on the nature and etiology of the Veteran’s current skin conditions, if any. Before scheduling the requested examination, ask the Veteran to provide an estimated time or time of the year when he experiences or is likely to experience flare-ups of tina versicolor or other skin disorders, in order to schedule the Veteran for a new skin examination during a flare-up. The entire claims file must be made available to and be reviewed by the examiner, and it must be confirmed that such records were available for review. The AOJ should obtain written documentation of all efforts to schedule the requested examination during a flare-up and associate all such documentation with the Veteran’s claims file. The AOJ is advised that, according to the February 2014 VA skin diseases questionnaire and a March 2004 VA dermatology note, he experiences flare-ups during the warm summer months. All indicated evaluations, studies, and tests should be accomplished and all findings reported in detail. After completing the requested examination and records review, the examiner should respond to the following questions: Identify all current skin diseases or conditions. If the examiner is unable document a skin disease or condition at the time of the examination, the examiner should identify, to the extent possible, all chronic skin diseases or conditions which have existed since the Veteran filed his pending claim on November 18, 2003, to include, but not limited to, tinea versicolor, dermatofibroma, lichen planus, xerosis, dermatitis, or hyperkeratotic lesions. The examiner is advised that these conditions are mentioned in notes from private dermatologists dated June 2013, July 2014, and October 2015 and available in the electronic claims file. For any skin disease or condition that the Veteran has or has had since he filed his claim in November 2003, the examiner should opine on whether it is at least as likely as not (a probability of 50 percent or greater) that the condition had its initial onset during active duty service or was caused or aggravated (i.e. permanently worsened beyond the normal progression of the disability) by any disease, injury, or event in service, including the diagnosis of tinea versicolor which appears in the Veteran’s service treatment records shortly before his discharge from active duty. The AOJ should provide a clear rationale for all opinions offered. If the examiner determines that any of the requested opinions cannot be rendered without resorting to speculation, he or she should so state, and should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given the state of medical science and the known facts) or by a deficiency in the record (i.e., additional facts are required), or because the examiner does not have the necessary knowledge or training. 3. The AOJ must ensure that the examination report and opinion requested above are in compliance with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Nye, Associate Counsel