Citation Nr: 21004487 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 12-06 294 DATE: January 27, 2021 REMANDED Entitlement to service connection for hives is remanded. Entitlement to a rating in excess of 30 percent for pseudofolliculitis barbae (PFB) and tinea versicolor is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1976 to December 1978. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in April 2019. A transcript of the hearing is of record. This matter was previously before the Board in September 2019 when it was remanded for further development.   1. Entitlement to service connection for hives is remanded. Although the additional delay is regrettable, the Board finds an additional remand is required before a decision can be made regarding the Veteran’s claim. A review of the record reflects that the Veteran was provided a VA examination to determine the nature and etiology of his hives in December 2019. Following examination of the Veteran, the examiner opined that the Veteran’s hives clearly and unmistakably preexisted his service but indicated that an opinion as to whether the hives were clearly and unmistakably not aggravated by service could not be provided without resorting to speculation. In support of the opinion, the examiner noted that there was not enough information in the record to determine the baseline severity of the condition prior to service. Given the examiner’s inability to provide an opinion without resort to speculation, the Board finds that there is not clear and unmistakable evidence that the condition was not aggravated by service. Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012) (finding that the burden is not met by finding “that the record contains insufficient evidence of aggravation”). As such, the Board concludes that the presumption of soundness has not been rebutted. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury is determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn, 25 Vet. App. 231, 233. Here, the examiner did not provide an opinion as to whether the Veteran’s current neurodermatitis was related to his service. As there is not an adequate opinion on that question, remand is required to obtain an opinion. Additionally, regarding whether the Veteran’s hives were secondary to his service-connected PFB and tinea versicolor, the examiner noted that the hives were not caused by his PFB and tinea versicolor because the conditions are separate. The examiner also noted that the hives were not aggravated by his PFB and tinea versicolor, noting that there was not enough information in the records to establish aggravation beyond natural progression. The examiner’s opinions concluding the Veteran’s hives were not secondary to his PFB and tinea versicolor are inadequate as the examiner failed to provide adequate rationale to support the opinions. 2. Entitlement to a rating in excess of 30 percent for PFB and tinea versicolor is remanded. The Board finds an additional remand is required as there has not been substantial compliance with the September 2019 remand. A remand by the Board confers on the Veteran, as a matter of law, a right to substantial compliance with remand instructions, and imposes upon VA a concomitant duty to ensure substantial compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). If the Board proceeds with final disposition of an appeal, and the Agency of Original Jurisdiction (AOJ) has not substantially followed the remand orders, the Board itself errs in not ensuring substantial compliance. Id. In the September 2019 remand order, the Board directed the AOJ to schedule the Veteran for a VA examination for evaluation of his service-connected PFB. The AOJ was instructed that, to the extent possible, the examination should be scheduled during an active stage of the Veteran’s disability since skin conditions by their very nature tend to have active and inactive periods. In addition to specifying all symptoms and functional impairment associated with the Veteran’s PFB and describing the nature and severity of symptomatology in detail, the VA examiner was instructed to provide the percentage of the total area of the body affected by the PFB as well as the percentage of exposed areas affected. The VA examiner was further instructed that, if the examination took place during an inactive period, separate percentages should be provided based on a review of the record and the Veteran’s description of his symptoms during a period of exacerbation or flare ups. The Veteran underwent a VA examination in December 2019; however, the examination report does not clearly indicate whether the examination was conducted during an active or inactive stage of PFB. The examination report does appear to indicate that tinea versicolor was inactive. As tinea versicolor was inactive on examination, the examiner was supposed to provide separate percentages of total body area affected and exposed areas affected during a period of exacerbation or flare ups; however, for tinea versicolor, the only percentages provided were “none” and appear to represent the findings on examination during an inactive stage. There does not appear to be an estimate provided of the percentage affected during an active phase of the condition. In light of this, the Board finds remand is required to ensure substantial compliance with the above prior remand directives. Stegall, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records for the period from November 2019 to the present. 2. After obtaining any additional records, schedule the Veteran for a VA examination with a VA examiner other than the December 2019 examiner to determine the nature and etiology of the Veteran’s hives. The electronic claims file, including this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. Following an examination of the Veteran and a review of the claims file, the examiner is asked to provide an opinion addressing the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s current hives disability or neurodermatitis is related to an in-service injury, event, or disease, including treatment for dermatitis during service. In providing a response to this question, the examiner is asked to assume that neurodermatitis was incurred in service. (b)Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s current hives disability or neurodermatitis was caused by his service-connected pseudofolliculitis barbae. (c)Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s current hives disability or neurodermatitis was aggravated (i.e., any worsening of the condition beyond its natural progression) by his service-connected pseudofolliculitis barbae. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. 3. After obtaining any additional records, schedule the Veteran for a VA examination with a VA examiner other than the December 2019 examiner for evaluation of his service-connected pseudofolliculitis barbae and tinea versicolor. To the extent possible, attempt to schedule the examination during an active stage of the Veteran's disability since skin conditions by their very nature tend to have active versus inactive periods. The electronic claims file, including this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. The examiner should specify all symptoms and functional impairment associated with the Veteran's service-connected pseudofolliculitis barbae and tinea versicolor. The nature and severity of such symptomatology should be described in detail. The examiner should also render specific clinical findings as to the percentage of the total area of the body affected by the service-connected disability, as well as the percentage of the exposed areas affected. If the examination must take place during an inactive period, separate percentages based on a review of the record and the Veteran's description of his symptoms during a period of exacerbation or flare-ups should be provided. Additionally, the examiner should indicate whether the Veteran's service-connected skin disability requires treatment with systemic therapy, such as corticosteroids or other immunosuppressive drugs, and should identify the total duration of such required treatment during the relevant period. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would   require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Jiggetts 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.