Citation Nr: 21062055 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-63 397 DATE: October 6, 2021 REMANDED Entitlement to service connection for a skin disability, to include porphyria cutanea tarda (PCT), to include as due to herbicide agent exposure and/or other chemical agents, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 1974 to February 1976, to include service abord USS Lexington. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1996 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the claims file. In April 2021, the Board remanded the Veteran's claim. Entitlement to service connection for a skin disability. The Veteran contends that his diagnosed skin disability is due to exposure to herbicide agents and/or chemical agents, to include trichloroethylene (TCE), while he served in the Navy on USS Lexington in at least the Territorial Waters off the shores of Vietnam. See Hearing Transcript (February 2021). The Veteran also contends that he has been complaining to VA about blisters since 1980. See VA 21-4138 Statement In Support of Claim (April 2017). He detailed that TCE was used on hot walkways to cut the grease daily without masks or gloves, and that he was only exposed to the sun and chemicals in the Navy. Id. At his hearing, he stated that he worked in AG-5, which was the resting gear department, where the planes come in for a landing and hit the cable. See Hearing Transcript (February 2021). For reasons explained below, the Board finds that remand is again necessary. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As an initial matter, the Board notes that, in February 2021, the claim was remanded for (1) verification of the Veteran's asserted in-service exposure to herbicide agents or other chemical agents, and (2) a VA medical opinion on the nature and etiology of his skin disability, to include PCT, only if herbicide agent exposure had not been conceded by VA. With regard to the request (1), the Board instructed that, in case that there was insufficient information to verify exposure to herbicide and/or chemical agents, the AOJ issue a Formal Finding outlining the steps taken to assist the Veteran and notify him of VA's inability to verify the asserted exposures. See BVA Decision (April 2021). Here, the AOJ requested development from the Records Research Center and the Department of the Navy. In response, a synopsis from the Records Research Center was provided stating that no evidence was located to support documentation of the claimed exposure. See other (May 2021). Significantly, the dates of potential exposure were listed as January 1975 to May 1975, while the request was made for the Veteran's service from December 1974 to February 1976. Id. A July 2021 synopsis from the Department of the Navy also provided that no evidence was located to support documentation of the claimed exposure. See other (July 2021). Although the AOJ made attempts to verify exposure, it is unclear whether the limiting dates on the request to RRC from January 1975 to May 1975 inhibited the request. Moreover, despite the Board's earlier remand instructions, no formal finding of unavailability of verification has been made, notifying the Veteran of the additional steps undertaken to obtain exposure verification and the VA's inability to verify the in-service herbicide and/or chemical agent exposure. See Stegall, supra. Further, the records research does not address whether the Veteran served aboard a ship that was within the 12-nauticle miles of the Republic of Vietnam. This too should be addressed on remand. With regard to request (2), the July 2021 VA medical examination and opinion is inadequate to decide the appeal. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). First, the opinion is predicated on the absence of PCT for 40 years after separation and including at the time of the examination, despite the Veteran's continued reports of skin problems, including at the time of the examination, and service treatment records (STRs) showing rash on skin and acne. See C&P Exam (July 2021). The Board notes that the examiner must acknowledge and discuss the Veteran's assertions indicating that he has experienced a continuity of skin symptomatology since service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where examiner did not comment on Veteran's report of in-service injury and instead relied on absence of evidence in service medical records to provide negative opinion). Second, the July 2021 VA medical opinion does not address the articles identified in the Board's prior remand ( "Trichloroethylene" and "Porphyria Cutanea Tarda" by Maureen B. Poh-Fitzpatrick, MD, and Dirk M. Elston, MD). See BVA Decision (April 2021). Instead, the opinion summarizes a Centers for Disease Control (CDC) study on blood levels of 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) of veterans who were heavily exposed to Agent Orange and those who were not. See C&P Exam (July 2021). This summary does not address the Veteran's specific disability picture, and it is unclear why the opinion references this study in this case. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018). See also, Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (although general medical research may be considered, it cannot be the sole basis for examiner's conclusion). Lastly, remand is necessary to obtain outstanding treatment records. See 38 C.F.R. § 3.159(c)(2); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). VA treatment records reflect that private medical records of treatment at hospice had been scanned into the record and note Vista-Imaging-scanned documents. The July 2021 VA examination also notes that the Veteran has been on hospice for three years for his skin condition. However, the VA treatment records in the claims file do not include those scanned (Vist-A Imaging) documents. Remand is necessary to obtain the relevant outstanding treatment records, private and VA, which should then be associated with the claims file. See 38 C.F.R. § 3.159 (c)(2); Sullivan, supra. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from May 2021 to the Present. Associate copies of all treatment records scanned into the VISTA Imaging system with the Veteran's claims folder. 2. Attempt to verify the Veteran's asserted in-service exposure to herbicide agents to include service in the waters offshore of the Republic of Vietnam on or earlier than May 7, 1975. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service herbicide agent exposure. 3. ONLY IF HERBICIDE EXPOSURE IS NOT CONCEDED BY VA, obtain a VA medical opinion from an appropriate medical professional to determine the nature and etiology of his skin disability, to include PCT. Address whether it at least as likely as not (50 percent or greater probability) (a) had its onset in service, (b) manifested within one year after service, or (c) is otherwise etiologically related to in-service injury or disease to include documented in-service findings involving rash on skin and acne, and reported exposure to chemical agents, other than herbicide agents. The opinion MUST: (a.) Reflect consideration of the STRs showing rash on skin and acne, and discuss what, if any, relationship exists between those in-service reports and the subsequent development of skin disability, now diagnosed as PCT, if any. (b.) Reflect consideration of the Veteran's report of blisters since 1980. (c.) Address the article entitled "Trichloroethylene" and "Porphyria Cutanea Tarda" by Maureen B. Poh-Fitzpatrick, MD, and Dirk M. Elston, MD. 4. Ensure that any VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.