Citation Nr: 20077761 Decision Date: 12/09/20 Archive Date: 12/09/20 DOCKET NO. 15-14 333 DATE: December 9, 2020 REMANDED Entitlement to service connection for a skin disability, to include chloracne as due to exposure to herbicide agents and to include as secondary to the service-connected psychiatric condition, is remanded. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, and to include as secondary to service-connected diabetes mellitus type II and to the service-connected acquired psychiatric condition, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1971 to June 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2014 and September 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. The Veteran testified before the undersigned Veterans Law Judge during an April 2019 hearing. A transcript of the hearing is associated with the Veteran’s claim file. This matter was previously before the Board in September 2019, wherein the Board remanded for additional development, to include obtaining VA examinations. The matter has returned to the Board for adjudication. 1. Entitlement to service connection for a skin disability The Veteran contends that his skin condition began in service and continued to manifest after his service, or in the alternative, that it is secondary to exposure to herbicide agents. He also contends that it may be related to his service-connected psychiatric disability. See April 2019 Board Hearing Testimony at pg. 21-22. The September 2019 Board decision remanded the issue for a VA examination with medical opinion as the Veteran had not been provided an examination for his skin disability. The Board noted that the Veteran had various skin diagnoses post service, to include chloracne, which was diagnosed during an August 2015 Agent Orange Registry examination and a VA examination was needed to identify whether any skin disabilities were related to active duty service or presumed in-service exposure to herbicides. The Veteran was afforded a VA examination in February 2020. He was diagnosed with acneform rash of the arms, back, and face, tinea cruris quiescent, folliculitis of the groin, and athlete’s foot quiescent. The VA examiner stated that the Veteran described an episode of being covered with “dust” that came off of the protective equipment (gloves) from other soldiers in 1974 while deployed and that he was concerned that the “dust” was Agent Orange dioxin or some other herbicide. The Veteran described that he was sick the next day with gastrointestinal symptoms and shortly thereafter developed a rash that was usually treated as acne but has never really responded or gone away. He has seen several dermatologists over the years (none of their reports are provided for review) and there is no biopsy provided. The examiner concluded that the acneform rash does not appear to have blackheads and is not otherwise chloracne and for these reasons the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In August 2020, the RO asked for clarification from the VA examiner as he had concluded that the Veteran did not have chloracne and did not render an opinion for the other skin diagnoses. In response, the VA examiner stated that the Veteran claims chloracne, but the rash is acne vulgaris. There is no association between acne and herbicides. He clarified that regarding the diagnoses provided in the February 2020 VA examination of acneform rash and folliculitis, the opinions were rendered for both diagnosed skin disabilities. He opined that the current diagnosed skin conditions are less likely than not incurred in or caused by the skin conditions treated in service or a result of herbicide exposure. He reasoned that there is just simply no evidence to link these current skin conditions to service which was last terminated in 1975. He noted that he considered that the Veteran stated that he developed a rash that was usually treated as acne. The acneform rash on the most current examination does not appear to have blackheads and is not otherwise chloracne. As such, he found that the acneform rash is not known to be a complication of Agent Orange and therefore, less likely than not caused in service or a result of herbicide exposure. He concluded that the same applies to folliculitis, with no evidence of continuity between 1975 to the current day nor evidence of it being linked to herbicide exposure. Here, the Board finds that the VA examiner’s opinion is inadequate, as the VA examiner merely concluded that the reason that the skin conditions are less likely than not incurred in or caused by the skin conditions in service or as a result of herbicide exposure in that there is simply no evidence to link these current skin conditions to service which last terminated in 1975. The VA examiner failed to discuss the Veteran’s lay statements relating his symptoms as beginning during military service that would come and go and thereafter, continued after service. As such, remand is necessary for an addendum medical opinion that considers the Veteran’s credible statements that he had skin issues since his discharge from service. Furthermore, the Veteran stated at the April 2019 Board hearing that he thinks that his skin problem has something to do with his anxiety. There is no medical opinion that addresses whether the Veteran’s skin problems are related to his service-connected psychiatric condition. Lastly, the VA examiner noted that the Veteran has seen several dermatologists over the years and none of their reports are provided for review. In this regard, it is not clear if the Veteran is seeing private dermatologists for his skin treatment. The Veteran should be afforded the opportunity to identify any private physicians that may have treated him for his skin conditions. For these reasons, a remand is needed for a new VA medical opinion. 2. Entitlement to service connection for hypertension The Veteran asserts that his hypertension is secondary to exposure to herbicide agents, or in the alternative, secondary to his service-connected diabetes mellitus type II and/or psychiatric condition. The September 2019 Board decision remanded the issue for an addendum medical opinion regarding hypertension and whether the condition was due to Agent Orange exposure. The Board also remanded for an opinion as to whether his hypertension was caused by his pre-diabetes or acquired psychiatric disorder. The Veteran was examined for hypertension in February 2020. While he was diagnosed with hypertension, the VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. He stated that his rationale was “online research” and that the diseases now on the VA’s Agent Orange list are ischemic heart disease, lung and trachea cancers, prostate cancer, multiple myeloma, Hodgkin’s disease, non-Hodgkin’s lymphoma, Parkinson’s Disease, type II diabetes, peripheral neuropathy, AL amyloidosis, chronic B-cell leukemia, chloracne, early-onset peripheral neuropathy, porphyria cutanea tarda, and soft tissue sarcoma. The examiner also noted that he conducted a Google search and found that Vietnam War veterans who suffer from hypertension may have contracted the condition when they were exposed to the chemical defoliant Agent Orange and that researchers have long suspected that Agent Orange exposure is a likely cause of hypertension. Furthermore, the VA examiner opined that the condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected diabetes mellitus type II. As rationale, he stated the Veteran was diagnosed with hypertension in 2007 and started on treatment prior to the diagnosis of diabetes mellitus in 2009. Therefore, as the hypertension was diagnosed prior to diabetes mellitus, it is less likely than not that the Veteran’s hypertension was caused by the Veteran’s diabetes mellitus. He also stated that the hypertension is not aggravated beyond its natural progression by the diabetes mellitus type II as the hypertension was diagnosed prior to the diabetes, it can be assumed to have been mild initially and progressed over time, it is possible that the Veteran’s hypertension may have been aggravated by his diabetes (and sequelae thereof e.g. chronic kidney disease). Regarding the Veteran’s psychiatric condition, the examiner opined that the hypertension is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service connection psychiatric disorder as there is no nexus for the hypertension to have been caused by the psychiatric disorder. He stated as rationale that there appears to have been concerns of non-compliance for both throughout the claimant’s record. The VA examiner also opined that the Veteran’s hypertension was not aggravated by his psychiatric illness as the hypertension would have been milder than in its current state. He stated that both the hypertension and psychiatric illness have been treated chronically over time, but there is nothing in the records provided to indicate that the hypertension would have been aggravated by the psychiatric illness. It would have more likely been aggravated by his other medical conditions (diabetes, chronic kidney disease). Here, the VA examiner’s rationales are contradictory and lack adequate rationale. He did not offer a sound explanation or support as to why there is no nexus for the hypertension to have been caused by his diabetes mellitus type II or psychiatric disorder. To address these concerns, in August 2020, the RO obtained clarification from the VA examiner regarding the hypertension. In the August 2020 clarification addendum, the VA examiner stated that upon reconsideration of the medical opinion, it is deemed that the Veteran is still on the same number of medications for hypertension, there is no evidence that his hypertension has gotten worse. He explained that usually when hypertension is worsened or aggravated, the Veteran’s provider would increase the dose or change the medication, but there is no evidence to indicate this. Thus, it is less likely than not that hypertension was aggravated beyond its natural progression by the diabetes. He also stated that as the hypertension was diagnosed prior to diabetes, it is less likely than not that the Veteran’s hypertension was caused by the Veteran’s diabetes. It is simply not possible for one condition to be the cause of the other one, if the other one already existed prior to it. Additionally, the VA examiner addressed whether Agent Orange exposure was related to the Veteran’s hypertension and he explained that the Google search that “researchers have long suspected that Agent Orange exposure is a likely cause of hypertension” was merely taking into consideration some studies that did give the benefit of the possibility of Agent Orange exposure being a likely cause of hypertension. As part of formulating his opinion, he was attempting to demonstrate that he took into consideration several opinions. However, he concluded that his final opinion is already noted, that hypertension was less likely than not due to exposure to herbicides. The Board finds that the February 2020 and August 2020 medical opinions are inadequate as the VA examiner’s rationales are conclusory without substantial rationale. Furthermore, the medical opinions did not address the relationship between the Veteran’s pre-diabetes for many years before his diagnosis of diabetes and whether the pre-diabetes was the cause of his hypertension. The VA examiner also did not address the Veteran’s April 2019 testimony that Dr. M.D. believed his hypertension could be related to his mental health condition. The September 2019 Board decision instructed the examiner to opine as to whether pre-diabetes was the cause of his hypertension and to address the Veteran’s April 2019 testimony that Dr. M.D. believed his hypertension could be related to his mental health condition. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. The matters are REMANDED for the following action: 1. Obtain VA treatment records from September 2020 to present. All reasonable attempts should be made to obtain any identified records. 2. The Veteran should also be afforded the opportunity to identify and submit any outstanding private treatment records that relate to the issues on appeal. He should be asked to provide those records or in the alternative, provide a release so that VA can attempt to obtain those records. 3. After completion of the above, obtain an addendum medical opinion from an appropriate examiner, other than the previous examiner, to address the claim for service connection for a skin condition, including chloracne. The decision for an in-person examination of the Veteran for a skin condition is left to the discretion of the examiner. The Veteran’s record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) The examiner should identify any diagnoses the Veteran had related to his skin disorder at any time during the claim period (i.e., from January 2013), even is such are asymptomatic or have resolved. b) For any diagnosed disability in response to (a), an opinion should be provided as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s skin disability had an onset in service or is otherwise related to the Veteran’s active service, to include conceded exposure to herbicide agents. c) For any diagnosed disability in response to (a), an opinion should be provided as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s skin disability manifested within one year after discharge from service. d) For any diagnosed disability in response to (a), an opinion should be provided as to whether it a least as likely as not (a 50 percent or greater probability) that the skin disability was caused or aggravated by the service-connected anxiety disorder with depressive disorder. Secondary service connection is warranted for any incremental increase in disability. State whether there was an increase in disability regardless of permanence, but medically ascertainable. Any increase in disability should be described in terms of diagnosis, severity, and duration. The examiner is reminded that he or she must address both causation and aggravation. The VA examiner must discuss the assessment of chloracne from the August 2015 Agent Orange examination. The VA examiner must also discuss the Veteran’s testimony that that he continued to have skin issues on and off during service and after service. 4. Obtain an addendum medical opinion from an appropriate examiner, other than the previous examiners, to address the claim for service connection for hypertension. The decision for an in-person examination of the Veteran for hypertension is left to the discretion of the examiner. The Veteran’s record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has hypertension that: a) had an onset in service or is otherwise related to service, to include by way of exposure to herbicide agents during service; b) manifested within one year after discharge from service; c) was caused by or aggravated by, or a result of the service-connected diabetes mellitus type II or pre-diabetes, including whether there is any incremental increase in disability or aggravation as a result of service; e) was caused by or aggravated by, or a result of the service-connected anxiety disorder with depressive disorder, including whether there is any incremental increase in disability or aggravation as a result of service. Secondary service connection is warranted for any incremental increase in disability. State whether there was an increase in disability regardless of permanence, but medically ascertainable. Any increase in disability should be described in terms of diagnosis, severity, and duration. The examiner is reminded that he or she must address both causation and aggravation. When addressing whether the Veteran’s hypertension is related to herbicide exposure, the examiner should assume that the Veteran was exposed to herbicide agents during service. In addressing the above, the examiner must consider and address the NAS, Veterans and Agent Orange: Update 11 (2018), which reflects that NAS upgraded hypertension to the “sufficient” category from “limited or suggestive,” indicating that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and an herbicide agent. The examiner must address the Veteran’s April 2019 Board hearing testimony that he had pre-diabetes for years prior to his diagnosis of diabetes and elevated glucose levels documented at the same time as the diagnosis of hypertension. The examiner must address the Veteran’s April 2019 testimony that Dr. M.D. believed his hypertension could be related to his mental health condition. The examiner is reminded that rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical findings and must reflect consideration of the competent lay assertions of pertinent symptomology from service to the present. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.