Citation Nr: 20055083 Decision Date: 08/19/20 Archive Date: 08/19/20 DOCKET NO. 13-18 199 DATE: August 19, 2020 REMANDED Whether new and material evidence has been received to reopen a claim for service connection for joint pain is remanded. Entitlement to service connection for hair loss is remanded. Entitlement to service connection for a skin disorder, to include a rash is remanded. Entitlement to service connection for a sexually transmitted disease (STD) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1979 to June 1983 and from January 1991 to October 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in September 2017 when it was remanded for further development. The issues of entitlement to service connection for sleep apnea and for a back disability were previously on appeal and remanded for further development in September 2017. While these matters were on remand, in a January 2020 rating decision, service connection for sleep apnea was granted, and in a May 2020 rating decision, service connection for a back disability was granted. Because those decisions represent a full grant of the benefits sought, those issues are no longer on appeal. If the Veteran wishes to disagree with any aspect of that decision, he is welcome to file the appropriate VA Form for the recourse he seeks, as outlined in the notification letter attached to the rating decisions. The Board does not currently have jurisdiction to review the effective date and evaluation assigned for these disabilities, as indicated by the Veteran’s representative in a July 2020 Appellate Brief. All Issues The Board’s September 2017 remand directed that VA treatment records from 1991 to 2001 and from October 2015 to the present be obtained. The record reflects that treatment records from October 2015 to the present were obtained. Attempts were made to obtain records, and in February 2020, a response was received which indicated there were no records to pull from the VA vault and that these records are electronic and noted in the VBA and VHA system. However, it does not appear that any further action was taken to obtain any electronic records during this time, nor was the Veteran notified if it was determined that these records were unavailable. Remand is required to determine whether these records can be obtained. The September 2017 remand also directed that the Veteran’s Army Reserve medical records be obtained. The record reflects that in March 2019, a request was made for all medical records and the entire personnel file, and the Veteran’s active duty service periods were listed. While service personnel records were associated with the file there is no indication that the Reserve medical records were included. There does not appear to be any followup attempt to obtain medical records that may be stored at other locations. Remand to obtain these records is warranted. Also, updated VA treatment records should be obtained and associated with the claims file.   New and Material Evidence-Joint Pain The RO will issue a Supplemental Statement of the Case (SSOC) if, pursuant to a remand by the Board, it develops evidence or cures a procedural defect, unless the only purpose for the remand is to assemble records previously considered and properly discussed in a prior Statement of the Case or SSOC, or the Board specifies in the remand that an SSOC is not required. 38 C.F.R. § 19.31(c). In this case, the issue of whether new and material evidence has been received to reopen a claim for service connection for joint pain was remanded by the Board in September 2017 to obtain additional treatment records. The Board also clearly specified that an SSOC was to be provided to the Veteran if his claim remained denied. Such has not been accomplished. Consequently, the Board must remand the Veteran’s claim to ensure such readjudication is completed. Service Connection-Skin Disorder The September 2017 remand also directed that the Veteran be afforded a VA examination regarding his claim for service connection for a skin disorder, to include a rash. The remand noted that July 2009 VA treatment records indicated the Veteran was diagnosed with a herpes simplex infection on the buttocks with recurrences approximately six to seven times a year and that he had pyoderma/carbuncle on the buttocks. Additionally, a July 2006 VA treatment record indicated that the Veteran reported developing a reoccurring rash on the posterior buttocks that initially presented during his active service in the Middle East in 1991, and that would get reoccurrences about three or four times a year. The Veteran’s wife and sister also supported his assertion that he has had continuous symptoms since service. The examiner was directed to diagnose all skin disabilities present, to include herpes simplex and pyoderma/carbuncle, and provide opinions as to whether any diagnosed skin disability, including herpes simplex and pyoderma/carbuncle, were at least as likely as not related to the Veteran’s military service. For any skin-related symptoms that were found not to be due to a diagnosed skin disability, the examiner was asked to opine as to whether the Veteran has objective indications, as established by history, physical examination, and laboratory tests, of an undiagnosed illness or a medically unexplained chronic multisymptom illness, manifested by skin-related symptoms that has existed for six months or more or exhibited intermittent episodes of improvement and worsening over a six-month period. The Veteran was afforded a VA examination in October 2019. He was diagnosed with pyroderma-resolved, carbuncle-resolved, and male pattern baldness. A review of the service treatment records did not support folliculitis but supported diagnosis of pyroderma/carbuncle which started in 2001. The Veteran had residuals of dry papular areas of the left lower leg and gluteal cleft, which the Veteran stated was from flare-ups of herpes simplex, but no rashes. The examiner stated that the “Veteran/wife’s subjective report of continuous symptoms of skin disorder since service has been considered.” While the examiner mentioned the Veteran’s reports of herpes simplex, it was not diagnosed and the examiner did not discuss the July 2009 VA treatment records that indicated the Veteran was diagnosed with a herpes simplex infection on the buttocks with recurrences approximately six to seven times a year, and did not provide any opinions. The requirement of having a current disability is met “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Also, the examiner’s generic statement that the statements from the Veteran and the Veteran’s wife were considered without further explanation is inadequate. As such, the Board finds that a new VA examination is warranted to determine whether the Veteran has a current skin disability related to service or has symptoms of an undiagnosed illness or a medically unexplained chronic multisymptom illness.   Service Connection-STD The September 2017 remand also directed that the Veteran be afforded a VA examination regarding his claim for service connection for an STD, to include syphilis. The VA examiner was asked to identify all diagnosed STD’s, to include syphilis, and provide an opinion as to whether it was at least as likely as not that any STD diagnosed, to include syphilis, is related or attributable to the Veteran’s military service. The Board notes that VA treatment records show that the Veteran has been diagnosed with syphilis. At his June 2011 RO hearing, the Veteran testified that he first had symptoms of break outs while he was in the Middle East, and thought it was a reaction to shots. The Veteran underwent a VA examination in October 2019. While the examiner acknowledged that the Veteran did have syphilis and that it was less likely than not related to service, the rationale provided was that it was diagnosed in 2009 and that the Veteran denied having a diagnosis of syphilis. This rationale is inadequate and remand to obtain a new VA examination and opinion is warranted. The matters are REMANDED for the following actions: 1. Obtain all available VA treatment records for the period from approximately 1991 to 2001 (Note: A May 2020 response from the Washington VAMC indicates that records are electronic and are noted in VBA system and VHA system 4/2009). If records cannot be located or are otherwise unavailable, the Veteran should be notified, and a Formal Finding of Unavailability should be included in the claims file. 2. Obtain the Veteran’s VA treatment records for the period from November 2019 to the present. 3. Contact the appropriate locations to request the Veteran’s Reserve service treatment records. All efforts to obtain such records should be documented in the claims file. If records cannot be located or are otherwise unavailable, the Veteran should be notified, and a Formal Finding of Unavailability should be included in the claims file. 4. After completing the above development, schedule the Veteran for an examination (or telehealth interview, if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of his skin disorder. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. a) Following an examination of the Veteran, the examiner is asked to diagnose all skin disabilities present, to include herpes simplex and pyoderma/carbuncle. The examiner is reminded that the requirement of a current disability is satisfied if demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). b) The examiner is then asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed skin disability, including herpes simplex and pyoderma/carbuncle, is related to his active service. In providing this opinion, the examiner must discuss and consider the July 2009 VA treatment record which indicates the Veteran was diagnosed with a herpes simplex infection on the buttocks with recurrences approximately six to seven times a year and that he had pyoderma/carbuncle on the buttocks, and the July 2006 VA treatment record which indicates that the Veteran reported that he had developed a reoccurring rash on the posterior buttocks that initially presented during his active service in the Middle East in 1991. The examiner must also discuss the statements from his wife and sister, which support the Veteran’s assertion that he has had continuous symptoms since service. c) For any skin-related symptoms that are found not to be due to a diagnosed skin disability, the examiner must indicate whether the Veteran has objective indications, as established by history, physical examination, and laboratory tests, of an undiagnosed illness or a medically unexplained chronic multisymptom illness, manifested by skin-related symptoms that has existed for six months or more or exhibited intermittent episodes of improvement and worsening over a six-month period. The examiner must consider and discuss the Veteran’s March 2010 photographs and April 2010 statement that he had boils that arose during and after his return from Desert Storm. A “medically unexplained chronic multisymptom illness” is defined as a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 5. After completing the above development, also schedule the Veteran for an examination (or telehealth interview, if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of any STD. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. a) Following an examination of the Veteran, the examiner is asked to diagnose all STD’s to include syphilis. The examiner is reminded that the requirement of a current disability is satisfied if demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). b) The examiner is then asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed STD, to include syphilis, is related to his active service. In providing this opinion, the examiner must discuss the Veteran’s statements at his June 2011 RO hearing that he first had symptoms of break outs while he was in the Middle East, and thought it was a reaction to shots. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 6. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken above, readjudicate the Veteran’s claims of whether new and material evidence has been received to reopen a claim for service connection for joint pain, entitlement to service connection for hair loss, entitlement to service connection for a skin disorder, to include a rash, and entitlement to service connection for an STD. If any benefit on appeal remains denied, a supplemental statement of the case (SSOC) must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bonnie Yoon, 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.