Citation Nr: 21061665 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-17 331 DATE: October 4, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left leg disability is remanded. Entitlement to service connection for a right leg disability is remanded. Entitlement to service connection for a skin disability (claimed as chemical burns to chest) is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Navy from June 1979 to October 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in his March 2017 substantive appeal (VA Form 9), the Veteran requested a hearing before the Board. Accordingly, the Veteran was scheduled for a Board hearing in June 2021. In April 2021, the Veteran withdrew his request for a hearing. Therefore, a hearing has not been conducted and the Board will proceed to adjudicate the claims currently on appeal. The Board also notes that the Veteran filed an appeal for entitlement to service connection for a left wrist disability. During the pendency of the appeal, in an April 2019 rating decision, the RO granted service connection for left wrist tendonitis and osteoarthritis. As such, this issue is not before the Board. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for a back disability is remanded. See Argument in Section 4 2. Entitlement to service connection for a left leg disability is remanded. See Argument in Section 4 3. Entitlement to service connection for a right leg disability is remanded. See Argument in Section 4 4. Entitlement to service connection for a skin disability (claimed as chemical burns to chest) is remanded. Initially, the Board finds that the Veteran's service personnel records are missing from his claims file. Furthermore, a review of the record indicates the Veteran's service treatment records, as contained in his electronic claims folder, may not be complete. Specifically, it does not appear that the entrance and separation examinations for the Veteran's periods of active service have been associated with the claims file. Thus, on remand, an exhaustive search for the Veteran's missing service personnel records and service treatment records should be undertaken, and the Veteran should be notified of all unavailable records. Furthermore, the Board finds that potentially relevant medical treatment records are missing from the claims file. During the course of the appeal, the Veteran has indicated that he received private medical treatment from the Spine Institute of the Carolinas. The record reflects that the Agency of Original Jurisdiction (AOJ) contacted the Spine Institute of the Carolinas by way of a March 2014 letter, requesting that the Veteran's available records be provided, or, in the alternative, that a negative response be provided if no information regarding the Veteran was available. The record does not reflect that a response has been received from the Spine Institute of the Carolinas, nor does it reflect that the AOJ has followed up with this medical provider. On remand, these records, or documentation of the AOJ's attempt to obtain these records, should be associated with the Veteran's file. Additionally, in a letter received in April 2021, the Veteran indicated that he was "currently under supervision by a Dr. Michaels" who is a hematologist. The Veteran further indicated that he was undergoing tests for lymphoma with Dr. Michaels as a result of an in-service chemical spill. The Board notes that a February 1985 service treatment record shows that the Veteran was contaminated with chemicals on his chest, neck, face, and eyes. Unfortunately, records associated with such treatment have not been associated with the claims file. Therefore, remand is warranted to obtain these outstanding medical treatment records, as they may be relevant to the claimed skin disability on appeal. The Board also finds that the VA examinations and medical opinions obtained in July 2014 are inadequate, as the examiner did not have all pertinent records for review. Thus, new VA examinations are warranted for all of the instant claims. Notably, the Veteran has not been afforded a VA examination in connection with his claimed bilateral leg condition. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file, specifically private treatment records from the Spine Institute of the Carolinas and Dr. Michaels. Request the Veteran to provide authorization for release of all identified private medical records to VA. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should be clearly documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Obtain all outstanding service personnel records and service treatment records, to include the Veteran's enlistment and separation examinations for his periods of active service. All reasonable attempts to obtain such records should be made and documented. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This should be documented in the claims file. The Veteran must be notified in accordance with 38 C.F.R. § 3.159(e). 3. After all outstanding records have been obtained, schedule the Veteran for examination(s) by an appropriate clinician to determine the nature and etiology of his claimed back disability, bilateral leg disorder, and skin disability. The Veteran's claim file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran's claimed disabilities. For each claimed disability, the examiner must opine whether it is at least as likely as not that any diagnosed disability manifested during, or as a result of, active military service. All lay statements describing the Veteran's symptoms, manifestations, and onset must be fully considered and discussed. The examiner may not merely dismiss the Veteran's statements due to lack of contemporaneous medical records. Notably, the absence of documented evidence of a diagnosis or associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. (Continued on next page) 4. After completing all indicated development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.