Citation Nr: 21062225 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-20 084 DATE: October 6, 2021 REMANDED Entitlement to service connection for a lower back disability is remanded. Entitlement to service connection for bilateral wrist disability is remanded. Entitlement to service connection for a right elbow disability is remanded. Entitlement to a rating in excess of 10 percent for a right ankle disability is remanded. Entitlement to a rating in excess of 10 percent for a left ankle disability is remanded. Entitlement to a compensable rating prior to December 23, 2020 for pseudofolliculitis barbae (PFB) is remanded. Entitlement to a rating in excess of 10 percent since December 23, 2020 for PFB is remanded. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from August 1988 to August 1992. The Veteran provided testimony at a hearing before a Veteran's Law Judge (VLJ) other than the undersigned in January 2020; a transcript of the hearing has been associated with the claims file. The VLJ who conducted the January 2020 hearing is no longer employed at the Board. In May 2021, the Veteran was advised of his right to have a new hearing with a different VLJ. In June 2021, the Veteran waived his right to a new Board hearing, and asked the Board to render a decision on the evidence of record. This matter is before the Board of Veterans' Appeals (Board) on appeal from March 2015, October 2015 and March 2021 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ). In the March 2015 rating decision, the AOJ denied a rating in excess of 10 percent for the Veteran's bilateral ankle disability, entitlement to TDIU, service connection for a right elbow disability, low back condition, and bilateral wrist conditions. The October 2015 rating decision continued a noncompensable rating for PFB. In March 2021, a rating decision awarded the Veteran a 10 percent disability rating for PFB, effective December 23, 2020. The rating issue for PFB remains before the Board because the increased rating that was granted was not a complete grant of the maximum benefits available. See AB v. Brown, 6 Vet. App. 35 (1993). These matters were remanded in April 2020 for additional development, including obtaining federal records, new VA opinions, and new VA examinations. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 1 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As such, another remand is warranted, as explained in more detail below. Low Back Condition In its March 2020 remand, the Board directed that the Veteran be provided a VA examination regarding his lower back condition, pursuant to McClendon v. Nicholson, 20 Vet. App. 79 (2006). In its order, the Board noted that the Veteran had provided competent testimony of in-service back injuries and continuity of symptomatology since service. The remand order specifically directed the VA examiner to consider the Veteran's reports of lifting heavy equipment, road marches and performance of other physical duties as part of his MOS as a warehouse clerk. The examiner was required to address the likelihood that the in-service injuries described by the Veteran could have caused any currently diagnosed low back condition. In December 2020, the Veteran attended a VA contract examination. At the examination, the Veteran was diagnosed with lumbosacral strain. He described the onset of his back pain during active duty, while carrying heavy equipment and running. He stated that running, hiking and his job in the warehouse worsened his back pain, and it has continued to worsen since then. The contract examiner rendered a negative nexus opinion on the basis that there were no service treatment records showing an in-service injury, no in-service diagnosis of a back condition, and no complaints of back problems at discharge. This opinion is inadequate and did not follow the specific remand directive to address the Veteran's competent lay statements describing in-service heavy lifting, road marches and whether the in-service trauma competently described by the Veteran could have caused the currently diagnosed back condition. Accordingly, remand is required. Bilateral Wrist Condition In the March 2020 remand, the Board directed that the Veteran be provided a VA examination regarding his left and right wrist conditions, pursuant to McClendon v. Nicholson, 20 Vet. App. 79 (2006). In its order, the Board noted that the Veteran had provided competent reports of lifting heavy equipment, road marches and performance of other physical duties as part of his MOS as a warehouse clerk. The examiner was specifically instructed to address the likelihood that the in-service injuries, such as those described by the Veteran could have caused any currently diagnosed wrist condition(s). The contract VA examiner failed to comply with the Board's instructions. In her negative nexus opinion, she did not discuss the Veteran's competent lay statements regarding in-service traumas and whether those could have caused any currently diagnosed wrist condition(s), nor did she address the 2015 medical imaging showing a chronic fracture with non-union. This opinion is inadequate and does not comply with the March 2020 remand order. Another remand is required. Right Elbow Disability In the March 2020 remand order, the Board instructed the AOJ to associate all outstanding VA treatment records documenting treatment for the issues on appeal, including the report of February 2015 VA elbow examination. The AOJ was directed to comply with 38 C.F.R. § 3.159(e), documenting all efforts to obtain this report and notifying the Veteran of any inability to obtain the records. The claims file contains neither the report of the February 2015 VA elbow examination nor notice to the Veteran of the inability to obtain such records. Additionally, the December 2020 VA examination and opinion from the contract examiner were inadequate, and a remand is required. The examiner failed to properly characterize the Veteran's elbow disability, relied on incorrect factual premises and did not account for the competent statements of the Veteran and the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In her opinion, the contract examiner stated that the Veteran complained of right elbow pain and had a negative X-ray in 1991. There is no record of an in-service X-ray of the Veteran's right elbow, in 1991 or otherwise. This inaccurate factual premise was used to support her conclusion that there is not enough evidence to show that the Veteran's condition worsened or was aggravated beyond its natural progression while in service. Additionally, the examiner failed to account for the Veteran's lay statements describing worsening of his right elbow pain during and since service. The failure to comply with the Board's March 2020 remand order regarding obtaining federal records and to obtain an adequate examination and opinion require a remand. Left and Right Ankle Disability In its March 2020 remand order, the Board directed that the Veteran receive a new VA examination to determine the current nature and extent of his bilateral ankle disabilities. Specifically, the examiner was instructed that if there was clinical evidence of pain on motion, "the examiner should indicate the degree of plantar flexion and/or dorsiflexion where such pain begins." At the December 2020 VA contract examination, the examiner noted pain during range of motion testing for both dorsiflexion and plantarflexion. However, she did not record the degree at which such pain began. Additionally, the examiner failed to perform stability testing on the Veteran's ankles, despite his January 2020 testimony that his ankles gave out frequently, causing him to fall. A remand for an adequate examination is required. PFB In March 2020, the Board directed that the Veteran be provided a new VA dermatology examination and that this examination should be scheduled during an active stage of the Veteran's skin disability. Specifically, the order directed that the "examining facility should communicate with the Veteran as necessary to maximize the likelihood of performing an examination during the active stage," and if that was not possible, for the examiner's report to include documentation of the Veteran's symptoms based on his description of symptoms during an active stage. There is no such documentation in the claims file or the report of the examination as to whether the examination was conducted during a flare-up of the Veteran's skin condition. Additionally, the contract VA examiner inaccurately claimed that the Veteran's skin condition had not been treated with medication in the past 12 months. The VA examination was conducted on December 23, 2020. The Veteran testified in January 2020 that he treated his skin condition with a cream given to him by VA. VA treatment records confirm that on December 27, 2019, the Veteran's active medications included ammonium lactate. Those same medical records also show that the Veteran was prescribed a course of steroids in October 2019, during the appeal period. This examination is inadequate for rating purposes, and a remand is required. TDIU The Veteran has claimed entitlement to TDIU based, in part, on his bilateral ankle disabilities. Therefore, the Veteran's TDIU claim is inextricably intertwined with the remanded issue. Adjudication of TDIU must be deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Associate with the claims file complete and updated VA treatment record. VA must specifically attempt to obtain the report of the February 2015 VA elbow examination, which is a federal record. All efforts to obtain this report must be documented. If VA is unable to obtain this report, it shall inform the Veteran of its inability to obtain the report and that he submit any copies of the record in his possession records himself. 2. Schedule the Veteran for a VA back examination with an appropriate clinician, other than the one who conducted the December 2020 VA examination. The claims folder must be reviewed in conjunction with the examination. The examiner must identify any current diagnosis or disability affecting the Veteran's back. The examiner is reminded that current disabilities include any disability that was present for any part of the appeal period (June 2014 through present). For each identified condition, the examiner must opine as to whether such is at least as likely as not caused or aggravated by service. The examiner must specifically discuss the Veteran's competent lay statements, including his January 2020 testimony, regarding the nature and onset of his back pain, including his descriptions of injuries from in-service physical training, lifting heavy equipment, road marches and other physical duties as part of his MOS of supply clerk. 3. Schedule the Veteran for a VA wrist examination with an appropriate clinician other than the one who conducted the December 2020 VA examination. The claims folder must be reviewed in conjunction with the examination. The examiner must identify any current diagnosis or disability affecting the Veteran's left and/or right wrists. The examiner is reminded that current disabilities include any disability that was present for any part of the appeal period (June 2014 through present). For each identified condition, the examiner must opine as to whether such is at least as likely as not caused or aggravated by service. The examiner must specifically discuss the Veteran's competent lay statements, including his January 2020 testimony, regarding the nature and onset of his wrist symptoms, including his descriptions of injuries from in-service physical training, lifting heavy equipment, road marches and other physical duties as part of his MOS of supply clerk. The examiner must also consider and comment upon the 2015 wrist X-ray showing a suspected chronic fracture with non-union. 4. Schedule the Veteran for a VA elbow examination with an appropriate clinician other than the one who conducted the December 2020 VA examination. The claims folder must be reviewed in conjunction with the examination. The examiner must render an opinion as to whether the residuals from his pre-service right elbow fracture-dislocation requiring open reduction and internal fixation were at least as likely as not (i.e., 50 percent probability or greater) worsened during service. The examiner will comment on the service treatment records from June 1991 showing decreased range of motion, swelling and a positive loose body and the Veteran's competent lay statements, including his January 2020 testimony, regarding the onset, nature, and progression of his right elbow symptoms. If the examiner determines that it is more likely than not that the Veteran's pre-existing right elbow condition worsened during active duty, the examiner must then provide an opinion as to whether there is clear and unmistakable evidence that any increase in severity was due to the natural progress of the disease. A full and complete rationale for any opinion expressed is required. 5. Schedule the Veteran for a VA ankle examination with an appropriate clinician other than the one who conducted the December 2020 VA examination. The examiner must describe the current status of the service-connected bilateral ankle disabilities. The examiner must measure and record the active range of motion testing results including the degree at which pain begins and ends. This information must be recorded in the report of examination, even if the form does not specifically request it. The examiner will conduct stability testing of the right and left ankles, and elicit information from the Veteran about the frequency and circumstances of his falls. 6. Schedule the Veteran for a VA skin examination to ascertain the current nature and severity of his service-connected skin conditions. The total skin area impacted by the conditions must be indicated. If possible, the examination should be scheduled during a flare-up of the Veteran's skin disability. If it is not possible to schedule the examination during a flare-up, then the examiner must document in detail the Veteran's description of the symptoms during a flare up and provide an estimate of the percentage of the entire body and exposed areas affected. All efforts to schedule the examination during a flare-up must be documented. The examination report will indicate whether the examination was conducted during a flare up, even if that information is not specifically solicited by the form. The examiner will ascertain whether the Veteran's skin condition has been treated with a systemic therapy, including, but not limited to corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA) or other immunosuppressive drugs. If such systemic treatment is identified, the examiner shall specify the duration and dates of the systemic treatment as well as identify any periods of constant or near-constant systemic therapy since June 2015. 7. Then, readjudicate the claims on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and return the appeal to the Board. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Megan-Brady Viccellio 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.