Citation Nr: 21003768 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 15-35 087 DATE: January 22, 2021 REMANDED Entitlement to service connection for bilateral essential tremors, claimed as Parkinson’s disease, is remanded. Entitlement to service connection for a skin disability, to include chloracne and dermatitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1966 to August 1968. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from October 2013 and November 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran waived a hearing before the Board in his September 2015 substantive appeal, via a VA Form 9. By way of procedural background, the Board denied the service connection claim for Parkinson’s disease and remanded the service connection claim for a skin disability in June 2019. The Veteran appealed the Board’s decision, and in June 2020, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for remand (JMR) as to the service connection claim for Parkinson’s disease. The claim has now been returned to the Board for further appellate consideration. After additional development, the RO has returned the service connection claim for a skin disability to the Board for further appellate consideration. As noted above, the Board has recharacterized the service connection claim for Parkinson’s disease to include bilateral essential tremors. The United States Court of Appeals for Veterans Claims held that, in determining the scope of a claim, the Board must consider the Veteran’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1,5 (2009). Throughout the appeal, the Veteran has primarily described his symptoms as bilateral hand tremors. See July 2012 VA examination, September 2015 VA Form 9, and September 2020 and October 2020 briefs. Pursuant to the principles of Clemons, the Board shall broaden and recharacterize the claim to a service connection claim for bilateral hand tremors, claimed as Parkinson’s disease, in order to more accurately align with the Veteran’s symptoms. The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) Opt-in Election form, which was received by VA in July 2018. However, the appeal had already been activated at the Board and was therefore no longer eligible for RAMP. Accordingly, the Board will proceed with adjudication of the case. 1. Entitlement to service connection for bilateral essential tremors, claimed as Parkinson’s disease, is remanded. On review of the record, the Veteran has never been formally diagnosed with Parkinson’s disease, and essential tremor is not one of the explicitly listed enumerated conditions found in 38 C.F.R. § 3.309(e) as presumptively caused by in-service herbicide agent exposure. However, effective January 1, 2021, the National Defense Authorization Act for Fiscal Year 2021 added “Parkinsonism” to 38 U.S.C. § 1116(a)(2) as a condition presumed to be caused by in-service herbicide agent exposure. The regulations have not been updated yet to reflect this change in the statutory law. Parkinsonism is defined as “a group of neurological disorders characterized by hypokinesia, tremor, and muscular rigidity.” Dorland’s Illustrated Medical Dictionary, 1383 (32nd ed. 2012). A remand is required for a medical opinion addressing whether the bilateral essential tremor constitutes “Parkinsonism” for the purposes of applying the presumptive service connection principles under 38 U.S.C. § 1116. If it is determined that the Veteran’s disability qualifies as Parkinsonism, then the principals of presumptive service connection will apply. If it is determined that the bilateral essential tremors do not qualify as Parkinsonism, the Veteran may still be awarded service connection if the in-service herbicide agent exposure directly caused the bilateral essential tremors. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Accordingly, on remand, a VA medical opinion addressing these theories of entitlement should be obtained. 2. Entitlement to service connection for a skin disability, to include chloracne and dermatitis, is remanded. Per the Board’s June 2019 remand directives, the Veteran was afforded a VA examination in November 2019 for the skin disability. The examiner found that the Veteran did not currently have chloracne, but instead, had facial scabs that were suggestive of dermatitis that appeared to be acute, limited, and spontaneously resolving. Due to the lack of documentation in service and that the current clinical examination suggested dermatitis, the examiner concluded it was less likely than not that the dermatitis had onset during or was otherwise related to active service. In September 2015, the Veteran submitted photographs depicting symptoms of a skin disability on his neck and chest. He reported his symptoms started in service with a skin rash that extended from his wrists to his shoulders, with the most severe symptoms at his elbows. This rash occasionally spread to his chest and neck. He also indicated that when prescribed antibiotics for another condition, the rash would get better. When he stopped taking antibiotics, the rash would get worse. He also described that the rash felt like maggots crawling on his arms, and he used ice packs to relieve his symptoms so he could sleep. Hydrocortisone helped but only slightly. See July 2020 affidavit. He asserted these symptoms started during service and have continued chronically since then. See September 2015 VA Form 9. In addition, a May 2012 Agent Orange examination noted multiple small, well healed scars/nevi/petechiae, although the location of these physical findings was not reported. The June 2019 VA examiner did not address any of these symptoms, limiting the discussion to one small scab on the Veteran’s face. Therefore, the June 2019 VA examination and medical opinion are inadequate in their current forms to decide the claim. As noted above, the Veteran may still prevail on a direct service connection basis if he has a currently diagnosed skin disability that had onset during or was otherwise related to service, to include exposure to herbicide agents, even if that skin disability is not presumptively linked to herbicide agent exposure. See Combee, 34 F.3d at 1042. On remand, the examiner should address the nature and etiology of all the Veteran’s contentions regarding a skin disability. The matters are REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records and associate them with the claims file. 2. Obtain an addendum medical opinion from an appropriate clinician as to the nature and etiology of the bilateral essential tremors. Whether an additional physical examination of the Veteran is necessary is left to the examiner’s discretion. After a thorough review of the claims file, the examiner should address the following: a) Provide an opinion as to whether the term “Parkinsonism” includes bilateral essential tremors. b) If “Parkinsonism” does not include bilateral essential tremors, provide an opinion as to whether the Veteran’s bilateral essential tremors had onset during or were otherwise related to service, to include the conceded herbicide agent exposure. *Although a thorough review of the claims file is required, the examiner’s attention is also directed to a June 1967 service treatment record (reporting nervousness and headaches with reading and being in the sun causing him to shake and feel as if he might pass out) and two statements from the Veteran’s fellow service members witnessing hand tremors in service. See October 2020 statements; see also October 2020 affidavit of the Veteran. c) Obtain an addendum medical opinion from an appropriate clinician as to the nature and etiology of the skin disability. Whether a physical examination is necessary is left to the discretion of the examiner. All the Veteran’s symptoms and contentions must be addressed. After a thorough review of the claims file, the examiner should address the following: a) Identify each currently diagnosed skin disability, to include any symptoms located on his wrists to shoulders, chest, and neck, whether diagnosed on physical examination or in treatment records. Although a complete review of the claims file is required, the examiner is directed to the following evidence: *May 2012 Agent Orange examination describing small multiple, well healed scars/nevi/petechiae; *November 2014 VA examination findings; *September 2015 photographs of his skin disability; and *July 2020 affidavit from the Veteran describing the history and current symptomatology of his skin condition. b) For each currently diagnosed skin disability, provide an opinion, with a thorough rationale, as to whether it had onset during or is otherwise related to active service, to include exposure to herbicide agents. 3. Readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harper, 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.