Citation Nr: 20023925 Decision Date: 04/07/20 Archive Date: 04/07/20 DOCKET NO. 13-03 396A DATE: April 7, 2020 REMANDED The claim of entitlement to service connection for a skin disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1967 to August 1970, to include service in Vietnam. He also had additional service in the Army and Navy reserves from August 1970 to January 1996. This appeal to the Board of Veteran’s Appeals (Board) arose from an April 2011 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, inter alia, denied the Veteran’s request to reopen his claim for service connection for a skin disorder. The Veteran disagreed with that determination, and this appeal ensued. In February 2014, the Veteran testified during a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. During the Board hearing, the record was held open for 30 days so that additional evidence could be submitted. Following the hearing, the Veteran submitted medical records from the Philadelphia VA Medical Center, as well as private dermatology records, along with a waiver of initial RO consideration. In March 2015, the Board reopened the claim, and remanded the service-connection claim, on the merits, to the agency of original jurisdiction (AOJ) for further development. After accomplishing further action, the AOJ continued to deny the claim (as reflected in January 2016 supplemental statements of the case (SSOCs)) and returned this matter to the Board for further appellate consideration. In July 2018, the Board again remanded the claim on appeal to the AOJ for further development. After accomplishing further action, the AOJ continued to deny the claim (as reflected in a September 2019 SSOC), and returned this matter to the Board for further appellate consideration. Unfortunately, the Board finds that still further AOJ action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on the matter on appeal. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that during the February 2014 Board hearing, the Veteran testified that he had a rash on his chest while serving in Vietnam, and that he has continued to have a skin rash since service. In the March 2015 remand, the Board cited VA treatment records dated from October 2012 to January 2013 reflecting that the Veteran had been diagnosed with skin disorders such as psoriasis, xerotic rash, brawny erythematous, and papules. The Board also noted that additional evidence received documented multiple skin disorders that were either not present or not diagnosed at the time of a November 2012 VA examination. The Board directed the AOJ to arrange for the Veteran to undergo a VA examination. The Board instructed the physician to specify all diagnosed skin disabilities present at any time pertinent to the claim for service connection, and to opine as to the existence of a medical nexus between each such diagnosis and service. The Board also instructed that, in providing the requested opinions, the physician should consider and discuss all pertinent medical and lay evidence of record. Pursuant to the remand, the AOJ arranged for the Veteran to undergo VA examination, which was conducted in October 2015; the examiner also provided an addendum opinion in December 2015. In its July 2018 remand, the Board found that the opinions obtained did not include discussion of the above-noted VA treatment records dated from October 2012 to January 2013 reflecting diagnoses of several skins disorders. The Board further found that the physician also did not discuss the Veteran’s assertions that he developed a rash on his chest during service which has continued to date. The Board directed the AOJ to again obtain an addendum opinion. The Board instructed the physician to specify all diagnosed skin disabilities present at any time pertinent to the claim for service connection, and to opine as to the existence of a medical nexus between each such diagnosis and service. The Board specifically instructed the opinion provider to consider and discuss the VA treatment records dated from October 2012 to January 2013 reflecting diagnoses such as psoriasis, xerotic rash, brawny erythematous, and papules. Pursuant to the July 2018 remand, the AOJ arranged for the Veteran to undergo VA examination, which was conducted in May 2019; the examiner also provided an addendum opinion dated that same month. Unfortunately, the opinion obtained again did not include discussion of the above-noted VA treatment records dated from October 2012 to January 2013 reflecting diagnoses of several skins disorders. The physician also did not discuss the Veteran's assertions that he developed a rash on his chest during service which has continued to date. Given the noted deficiencies, the Board is unable to find that there has been substantial compliance with the prior remand directives. Id; see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999). (holding that substantial, rather than strict, compliance is required). Accordingly, another remand of this matter to obtain further medical opinion based on full consideration of the Veteran’s documented medical history and all lay assertions, and supported by complete, clearly stated rationale is required. To this end, the AOJ should arrange to obtain addendum opinions from an appropriate physician based on claims file review (if possible). The AOJ should only arrange for the Veteran to undergo further VA examination, by an appropriate physician, if one is necessary in the judgment of the physician designated to provide the addendum opinion. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records, to include VA treatment records dated since October 2019. The AOJ should also give the Veteran another opportunity to provide information and/or evidence pertinent to the remaining claim on appeal (particularly regarding any private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran dated since October 2019. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the remaining claim on appeal that is not currently of record, to include any private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain an addendum opinion with respect to the Veteran's skin disorders from an appropriate physician, based on claims file review (if possible). Only arrange for the Veteran to undergo examination, by an appropriate physician, if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the addendum opinion/examination report should reflect full consideration of the Veteran's documented medical history and lay assertions. The physician should identify all diagnosed skin disorders currently present or present at any time pertinent to the current claim for service connection, to include chloracne and other acneform disease associated with exposure to herbicides (even if now symptomatic or resolved). In doing so, the physician must specifically and consider and discuss the VA treatment records dated from October 2012 to January 2013 reflecting diagnoses such as psoriasis, xerotic rash, brawny erythematous, and papules. Then, with respect to each identified skin disorder other than chloracne or other acneform disorder consistent with herbicide exposure, the physician should provide an opinion, consistent with sound medical principles, as to whether it is as least as likely as not (i.e., a 50 percent or greater probability) that the disorder had its onset during service or is otherwise medically related to service, to include presumed exposure to herbicides during Vietnam service. In rendering the requested opinions, the examiner must consider and discuss all in and post-service medical and other objective evidence (to include that referenced above), as well as all lay assertions, to include the Veteran's competent assertions as to in-service events, as well as to the nature, onset, and continuity of symptoms (specifically, that he began having skin rashes in service that have continued to date) Notably, the absence of documented evidence of a specific diagnosis and/or associated symptoms in or shortly after service should not, alone, serve as the sole basis or a negative opinion. In this regard, the physician examiner is advised that the Veteran is competent to report his symptoms and history, and that his reports in this regard must be considered in formulating requested opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. Complete, clearly stated rationale for the conclusions reached must be provided. 3. To help avoid another remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, supra. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the service connection claim on appeal considering all pertinent evidence (to particularly include all that added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hammad Rasul, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.