Citation Nr: 21000436 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 15-33 076 DATE: January 5, 2021 REMANDED 1. Service connection for vitiligo, to include as due to herbicide and various other chemical exposure is remanded. 2. Service connection for hypothyroid disease, to include as due to herbicide and various other chemical exposure is remanded. 3. Service connection for erectile dysfunction and decreased sexual drive, to include as secondary to hypothyroid disease is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1977 to March 1982. In May 2017, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. This matter was previously before the Board in September 2018 when it was remanded for further development. In sum and substance, the September 2018 remand directed the agency of original jurisdiction (AOJ) to contact relevant departments to determine whether the Veteran’s military personnel and service treatment records (STRs) are available, and to clearly document any efforts made to obtain this information. Efforts to obtain this information was directed to be ongoing until the non-existence or unavailability of such records was verified. Additionally, the AOJ was directed to verify the Veteran’s periods of active duty and the nature of his foreign service, including retrieving all records of his assignments, travel orders pay stubs that reflect special pay status, travel vouchers, dislocation allowance, and any TDY orders. The Board finds the agency of original jurisdiction (AOJ) failed to complete the development ordered by the Board remand directives. The Board also finds the medical opinions obtained upon remand are inadequate for adjudication purposes. For these reasons, which will be further detailed in the relevant section, the Veteran was not afforded substantial compliance with the previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, the Board finds that still further AOJ action on the claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Further, if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Additionally, when the Secretary provides the claimant with a VA medical examination or opinion, he must ensure that the examination or opinion provided is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). REASONS FOR REMAND 1. Service connection for vitiligo, to include as due to industrial chemicals is remanded. The Veteran seeks service connection for his vitiligo. During his May 2017 hearing, the Veteran testified that his vitiligo was contracted due to exposure to industrial chemicals while working as an aircraft mechanic in service. The Veteran reported being exposed to hydraulic fuel, JP-4, PD-680, NEK, and methanethiol ketone albuterate, to list a few. After a Board remand, the Veteran was afforded a skin disease VA examination. See July 2020 VA Examination. The Veteran was diagnosed with vitiligo on his hands and trunk. The examiner found that it was less likely than not that the Veteran’s vitiligo was caused by exposure to Agent Orange of contaminated Chinook helicopters. The examiner explained that there was no evidence of exposure to agent orange or a diagnosis of vitiligo in service despite the Veteran’s credible reports of exposure to agent orange of contaminated Chinook helicopters. The examiner further indicated that no medical literature links the development of vitiligo to exposure to agent orange. The Board finds the July 2020 VA Examination for skin conditions to be inadequate. While the examiner opined that the Veteran’s vitiligo is less likely than not due to Agent Orange exposure, he failed to address the Veteran’s contention that his vitiligo is due to industrial chemicals such as hydraulic fuel, JP-4, PD-680, NEK, and methanethiol ketone albuterate. Therefore, a remand for a new opinion is warranted. 2. Service connection for hypothyroid disease, to include as due to herbicide and other chemical exposure is remanded. The Veteran was afforded a VA examination in July 2020 and diagnosed with hypothyroidism. The examiner opined that the Veteran’s hypothyroidism was less likely than not caused by his service. It was explained that the Veteran’s claims file did not have STRs or evidence showing exposure to agent orange during service. The Board finds this examination to be inadequate. The examiner based his negative opinion solely on the fact that the Veteran’s claims file contained no STRs and thus no evidence of exposure to Agent Orange in service. The examiner’s rationale does not indicate an acknowledgment of the Board’s order to assume in-service exposure to Agent Orange for the purpose of the requested opinion. Thus, a new opinion is needed. 3. Service connection for erectile dysfunction, to include as secondary to hypothyroid disease is remanded. The July 2020 examiner found that medical literature links erectile dysfunction to hypothyroidism, however, because the Veteran’s hypothyroidism is not service-connected, secondary service connection cannot be established. The Board finds that the issue of secondary service connection for erectile dysfunction is inextricably entwined with the remanded hypothyroidism service connection claim and may not be adjudicated herein. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Contact the relevant departments, to include but not limited to, RMC, NPRC, NARA, DPRIS, and JSRRC, to determine whether the Veteran’s military personnel and service treatment records are available. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran. 3. In addition, contact the relevant departments in an attempt to verify the Veteran’s periods of active duty and the nature of his foreign service, including all records of his assignments, whether permanent or temporary duty stations (to include any DD form 1610 or the equivalent at the time); all travel orders; pay stubs that reflect special pay status, travel vouchers, dislocation allowance, any TDY orders, and any security clearance. Specifically, attempt to verify whether the 213th Aviation Company was involved with the disposal of any herbicide agents at Camp Humphreys from October 1974 to November 1975. 4. Only after directives #1, #2, and #3 above are fulfilled, but regardless of whether new evidence is received, obtain a new VA opinion to determine the nature and etiology of the Veteran’s claimed skin disorder. If an in-person examination is needed before the examiner can render the requested opinion, then an in-person examination should be arranged. The claims folder including this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. After a careful review of the record, and examination if necessary, the examiner is asked to respond to the following: (a) Identify all currently diagnosed skin disabilities, to include vitiligo. Please note: a current disability is one diagnosed at any time during the pendency of the appeal, namely, from August 2012, forward. (b) Please reference the May 2017 hearing testimony to ascertain the Veteran’s report of the history of his skin disability such as believing his condition is etiologically linked to working with industrial chemicals without protective equipment while on active duty. (c) Provide an opinion as to whether it is at least as likely as not (at least a 50 percent probability) that any currently diagnosed skin disability is related to the Veteran’s active duty service, to include exposure to industrial chemicals such as hydraulic fuel, JP-4, PD-680, NEK, and methanethiol ketone albuterate. For the purpose of this opinion, assume that exposure to herbicide agents is conceded. The examiner should provide a complete rationale for all opinions. 5. Only after directives #1, #2, and #3 above are fulfilled, but regardless of whether new evidence is received, obtain a new VA opinion to determine the nature and etiology of his claimed hypothyroid disease. If an in-person examination is needed before the examiner can render the requested opinion, then an in-person examination should be arranged. The claims folder including this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. After a careful review of the record and examination of the Veteran if needed, the examiner is asked to respond to the following: For any identified thyroid disease, provide an opinion as to whether it is at least as likely as not (at least a 50 percent probability) related to the Veteran’s active duty service, to include exposure to herbicide agents. For the purpose of this opinion, assume that exposure to herbicide agents is conceded. The examiner should provide a complete rationale for all opinions. 6. Then, readjudicate the claims on appeal. If the benefits on appeal remain denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case and allow an appropriate time for response. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.Russell 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.