Citation Nr: 21002533 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 11-25 361 DATE: January 13, 2021 REMANDED Service connection for a back disorder is remanded. Service connection for a bilateral knee disorder is remanded. Service connection for radiculopathy of the bilateral upper extremities is remanded. Service connection for a skin disorder is remanded. Service connection for a jaw disorder is remanded. Service connection for radiculopathy of the bilateral lower extremities is remanded. REASONS FOR REMAND The Veteran served in the Puerto Rico Army National Guard and had a period of active duty for training (ACDUTRA) from October 1989 to March 1990. He had verified active duty during the Persian Gulf War from November 1990 to August 1991 that included service in Southwest Asia, and was discharged from the Army National Guard in February 2002. For his meritorious service, the Veteran was awarded (among other decorations) the Southwest Asia Service Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) regional office (RO) in San Juan, Puerto Rico. The Board remanded this appeal for additional development multiple times, including in July 2014 and February 2020. 1. Service connection for a back disorder is remanded. 2. Service connection for a bilateral knee disorder is remanded. 3. Service connection for radiculopathy of the bilateral upper extremities is remanded. 4. Service connection for a skin disorder is remanded. 5. Service connection for a jaw disorder is remanded. 6. Service connection for radiculopathy of the bilateral lower extremities is remanded. The Veteran has notified VA that he has been treated at the VA medical center (VAMC) in San Juan, Puerto Rico. The Board’s July 2014 remand directed the Agency of Original Jurisdiction (AOJ) to obtain the Veteran’s records from that VAMC. After the Board’s February 2020 remand, the Veteran was afforded VA examinations later that same month. In the report of the back conditions examination, the examiner wrote the following: “It should be noted that he has several employee health visits dating back as far as 1/21/2004 however these notes are restricted and not able to be reviewed. Employee health sees work related injuries or accidents.” Thus, it appears to the Board that all of the Veteran’s VAMC records have not been obtained. VA is to (1) make as many requests as are necessary to obtain relevant records from a Federal department or agency; (2) end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile; and (3) notify the claimant orally or in writing if it concludes that it is reasonably certain that records from a Federal department or agency do not exist or further efforts to obtain them would be futile. See 38 C.F.R. § 3.159. In this case, after review of the claims file, the Board finds that it is not clear whether any portions of the Veteran’s VA treatment records are indeed not in the claims file, and that the Veteran has not been notified that any portion of his VA treatment records are missing. Therefore, the Board finds that this appeal should be remanded so the AOJ can make sufficient attempts to obtain the Veteran’s apparently restricted “employee health” records, dating back as far as 1/21/2004, from the San Juan, Puerto Rico VAMC. If the records cannot be obtained, the Veteran should be notified of that fact. Additionally, regarding the Veteran’s skin disorder, the Board’s July 2014 remand directed the AOJ to obtain a VA examination opinion on whether the Veteran’s skin disorder preexisted and was aggravated by his active military service. No such opinion has been obtained. Thus, on remand, one should be obtained. Regarding the Veteran’s back and knee disabilities, upon review of the February 2020 VA examination report, the Board finds that the examiner’s rationale does not adequately address the Veteran’s specific contentions. It is based largely on the Veteran’s STRs and post-service medical treatment records but does not discuss the Veteran’s claims that his back and knee pain started during his active service and as a result of his physical activities during his active service. On remand, an addendum VA examination should be obtained after review of the Veteran’s statements, and in the addendum, the examiner should discuss those statements and opine again on the etiology of the Veteran’s back and knee disabilities. The matters are REMANDED for the following action: 1. Obtain the apparently restricted “employee health” portions of the Veteran’s VA treatment records from the San Juan, Puerto Rico VAMC for the period from January 2004 to present. If it is determined that the records do not exist or cannot be obtained, notify the Veteran of that fact. Ensure that all development in this regard conforms with the requirements set forth in 38 C.F.R. § 3.159. 2. Schedule the Veteran for a VA examination (Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) for his skin disorder(s). The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a.) Did any skin condition clearly and unmistakably (undebatable) preexist the Veteran’s service, to include being a congenital defect? The examiner should state whether the skin disorder(s), if any, of the skin conditions are a congenital defect. (b.) If it is determined that one or more of the skin disorder is a congenital defect, the examiner should opine whether a superimposed disability became manifested in service, and if so, address the nature of that superimposed disability. (c.) Then, the examiner should opine whether it is at least as likely as not that any superimposed disability developed in service or is otherwise causally related to service. (d.) For any skin conditions that the examiner finds not to be congenital defects, the examiner is asked to opine whether there is clear and unmistakable (i.e., obvious or manifest) evidence supports finding both that the skin disorder preexisted service and that it was not aggravated (i.e., did not increase in severity beyond its natural progression). The examiner should be advised that temporary or intermittent flareups of a preservice condition without evidence of worsening of the underlying condition, are not sufficient to be considered aggravation. A complete rationale for each opinion must be provided. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s back disability is at least as likely as not related to his active service, including any in-service physical activity. The examiner must consider the Veteran’s lay statements regarding in-service occurrence of the injury and should discuss those statements as relevant and necessary. This includes the Veteran’s claims that his back pain started during his active service and as a result of his physical activities during his active service. The examiner’s opinion and the rationale therefor should be based on all relevant evidence of record, and, if at all possible, neither should be based solely on the absence or presence of contemporaneous medical records. A complete rationale for each opinion must be provided. If the examiner is unable to formulate any opinion without resorting to speculation, he or she must indicate why this is so. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported back symptoms/pain in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s knee disabilities are at least as likely as not related to his active service, including any in-service physical activity. The examiner must consider the Veteran’s lay statements regarding in-service occurrence of the injury and should discuss those statements as relevant and necessary. This includes the Veteran’s claims that his knee pain started during his active service and as a result of his physical activities during his active service The examiner’s opinion and the rationale therefor should be based on all relevant evidence of record, and, if at all possible, neither should be based solely on the absence or presence of contemporaneous medical records. A complete rationale for each opinion must be provided. If the examiner is unable to formulate any opinion without resorting to speculation, he or she must indicate why this is so. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported knee pain/symptoms began in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banks, 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.