Citation Nr: 21001865 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 12-04 828A DATE: January 12, 2021 REMANDED Entitlement to service connection for a skin condition, including as due to exposure to herbicide agents is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1965 to August 1967, including service in the Republic of Vietnam. This matter again comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board previously remanded this matter in November 2014, June 2017, and April 2020. Skin Condition As a preliminary matter, the Board acknowledges that the Veteran has reported obtaining private dermatological treatment and that his most recent VA medical records affiliated with the claims file are dated August 2020. See October 2017 VA Dermatology Attending Note (reflecting that Veteran “recently saw another physician”). Thus, the Board requests that on remand, the Veteran’s updated VA and/or private medical records related to his skin disorders be obtained and associated with the claims file. The Board notes that there are opinions of record concluding that the Veteran’s various current skin disorders are less likely than not related to his active duty service, including as due to herbicide agent exposure; however, three of the most recent opinions are inadequate to ascertain the etiology of the Veteran’s condition. In opinions from September 2017, a VA contract examiner found that “[w]ithout objective evidence of [the Veteran’s numerous skin disabilities] during or within 30 years after service and with no subjective descriptions consistent with [said disabilities] in the 30 years after military discharge, the claimed conditions cannot be proximate to or caused by active duty service or exposure to [herbicide agents] during time in active duty service.” However, the Board notes that reliance on a lack of contemporaneous medical documentation of a condition is not sufficient substantive negative evidence to support an opinion regarding service connection. See Horn v. Shinseki, 25 Vet. App. 231 (2012). Additionally, opinions obtained in 2018 and 2019 from a specialist employed by the Veterans Health Administration (VHA) are also inadequate. The VHA physician did note likely etiologies for the Veteran’s different skin conditions; however, the physician did not address the Veteran’s competent lay statements of record as to the onset and continuity of his symptomatology or the in-service treatment for a recurrent wart in March 1967 and an infected hair follicle in July 1967. See August 2018 Opinion by D.H. Stein, MD, MPH; September 2019 Opinion by D.H. Stein, MD, MPH, M. St.; Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, the Board requests a new opinion on remand ascertaining the nature and etiology of the Veteran’s skin conditions. The matters are REMANDED for the following action: 1. The RO should request the Veteran to identify any and all outstanding and/or updated VA and/or private medical records related to his skin disabilities. Appropriate efforts must be made to obtain these records if he has adequately identified them and authorized their release (with respect to any private medical records). He should also be invited to submit these records himself. All actions to obtain the requested records must be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 2. Subsequently, forward the claims file to a physician with appropriate expertise, who has not previously provided an opinion in this case, for an opinion regarding the nature and etiology of any and all skin disorder(s) attributable to the Veteran throughout the appellate period. The entire claims file, including a copy of this remand, must be made available to the clinician, who must note its review. If the physician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be obtained. The physician should identify any and all skin condition(s) attributable to the Veteran throughout the appellate period. For each condition so identified, the physician should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s condition manifested during, or is the result of, his active duty service, to include as due to herbicide agent exposure. In formulating his or her opinions, the physician must consider and address all competent medical and lay evidence of record, including, but not limited to: (a) The Veteran’s service treatment records, including but not limited to: (i) A March 1967 record reflecting a recurrent wart on the Veteran’s left cheek which was surgically removed in July 1965 and that said wart started recurring in September 1965; (ii) June 1967 records reflecting the Veteran had an infected hair follicle on the back of his neck which was treated with hot soaks; and (iii) July 1967 records reflecting the Veteran had an infected hair follicle which was treated with hot soaks. (b) The Veteran’s post-service VA medical records, including March 2015, July 2015, and October 2015 VA Dermatology Attending Notes assessing the Veteran’s multiple recurrent large abscesses as being possibly related to Agent Orange exposure; (c) The Veteran’s post-service private medical records; and (d) The Veteran’s various lay statements of record regarding the onset and continuity of his symptomatology, including but not limited to, statements made during a February 2016 VA C&P Examination and a January 2018 letter submitted by the Veteran to the VA regarding the history of his conditions. In providing the requested opinion, the physician should consider and discuss any conflicting medical evidence or opinions of record. If the physician determines that the Veteran’s skin condition(s) less likely than not were caused or aggravated by his active service, the clinician should discuss what other factor(s) caused the disorder(s). The physician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 3. The RO should review all opinions obtained and ensure that they comply with the above directive. If the opinions are deficient in any manner, take corrective actions before returning the case for further appellate review. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.