Citation Nr: 1808151 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 11-31 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a skin disorder, including due to exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Appellant-Veteran and his sister ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to June 1967. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2014, as support for this claim, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board, in other words at a Travel Board hearing. A transcript of the proceeding is in the claims file, so of record. The Board subsequently determined in a November 2014 decision that new and material evidence had been submitted to reopen this claim. But rather than immediately readjudicating this claim on its underlying merits, the Board remanded it to the RO, via the Appeals Management Center (AMC), to obtain additional treatment records and provide the Veteran a VA dermatological examination. Unfortunately, there was not compliance, even the acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). See also Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008). Consequently, the Board is again REMANDING this claim to the Agency of Original Jurisdiction (AOJ). REMAND Although again remanding this claim regrettably with further delay deciding it, this additional development is necessary to ensure a complete record so the Veteran is given every possible consideration. As already alluded to, the prior remand was partly to provide him a VA compensation examination to determine the etiology of any diagnosed skin disorder - particularly insofar as its posited relationship or correlation with his military service. To this end the Board's remand directives instructed that the examination preferably be performed during a time when this condition is in an active state, that is, during a flare-up. The Veteran was afforded this requested examination in April 2015. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. As part of the rationale, the examiner noted that, during physical examination, there was no evidence of rash to determine or compare to the Veteran's description of rash. The examiner therefore concluded that no opinion could be rendered without resorting to mere speculation as the limits of medical knowledge had been exhausted. The examination report reflects that the Veteran mentioned experiencing flare-ups occurring two to three times yearly, lasting up to one month. When there is a history of remission and recurrence of a condition, VA's duty to assist encompasses the obligation to evaluate a condition during an active, rather than inactive, phase. See Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994) (concluding that examination during a remission phase did not accurately reflect the elements of a disability that caused the Veteran to miss three to four months of work at a time); but cf. Voerth v. West, 13 Vet. App. 117, 122-23 (1999) (holding that a condition that became inflamed approximately twice a year for a few days did not require examination during a flare-up). When previously remanding this claim, the Board specifically instructed the examination to preferably be performed during a flare-up, i.e., during an active not inactive phase. In light of the Veteran's report that flare-ups last for one month, and as the examiner conceded that an opinion could not be provided without apparently visible evidence of the Veteran's reported rash, the Board finds that its prior remand directives have not been substantially complied with, in turn requiring supplemental comment. See Stegall, 11 Vet. at 271. Accordingly, this claim is again REMANDED for the following additional development and consideration: 1. Obtain all additional evaluation or treatment records needing to be obtained. This includes, but is not limited to, records of treatment the Veteran has received from the Tuscaloosa VA Medical Center. If any such records identified by him are unavailable, he must be informed and notations of the unavailability of the records and the attempts made to obtain them documented in the claims file. 38 C.F.R. § 3.159(c)(2) and (e)(1). All such available records should be associated with the claims file so they may be considered. 2. After receiving all additional records, schedule the Veteran for another VA dermatological examination for supplemental comment (an addendum opinion) regarding the etiology of his diagnosed dermatitis. This medical evaluation preferably should be performed during a time when this condition is in an active state, that is, during a flare-up. The claims file must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings set forth in detail. The examiner should opine on whether it is as likely as not (50 percent or greater probability) that the dermatitis incepted during the Veteran's active military service from July 1965 to June 1967 or, alternatively, is otherwise related or attributable to his service. Because the Veteran is competent even as a layman to report the onset of symptomatology regarding his skin condition, as this requires only personal knowledge, not medical expertise, the examiner must specifically address the Veteran's report of any manifestation of this condition during his military service or within the year after separation from service as evidenced by the January 2002 letter from Dr. A.S. in determining whether any current dermatitis may have originated during the Veteran's service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's service treatment records (STRs) to provide a negative opinion). When responding, it is most essential the examiner provides explanatory rationale for all opinions expressed and conclusions reached, preferably citing to specific evidence in the file as support or to medical authority. If, like previously, the examiner must resort to mere speculation to render the requested opinion, he/she must state what reasons, with specificity, the question being asked is outside the scope or realm of a medical professional conversant in VA practices, what additional evidence, if available, would allow for a more definitive response, or whatever the reason is for not being able to respond more definitively. 3. Ensure that the examination report complies with (answer the questions posed in) this Remand. If it does not, return the report to the examiner for all needed additional information. 38 C.F.R. § 4.2. 4. Then readjudicate this claim in light of this and all other additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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 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 (2012). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).