Citation Nr: 21065930 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 14-35 143 DATE: October 28, 2021 REMANDED Entitlement to service connection for a skin disorder is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for radiculopathy of the right lower extremity is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1968 to February 1970, to include service in the Republic of Vietnam. These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) San Juan, Puerto Rico. This case was most recently before the Board in June 2021, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. In addition, in an August 2021 rating decision, the AOJ granted service connection for onychomycosis of toenails and assigned an initial rating. To date, the Veteran has not submitted a notice of disagreement with this decision. As this decision represents a full grant of the benefits sought with respect to this claim for service connection, such issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). 1. Service Connection Skin Disorder The Veteran seeks entitlement to service connection for a skin disorder, to include as due to herbicide agent exposure during his service in the Republic of Vietnam. As noted above, the Veteran's claim for entitlement to service connection for a skin disorder was most recently before the Board in June 2021, when it was remanded to the RO for further development. Specifically, the June 2021 Board determined that a VA examination was warranted. The Veteran was afforded the directed VA examination in August 2021. At that time, the examiner diagnosed dermatophytosis, psoriasis, seborrheic keratosis, and recurrent MRSA skin abscesses. The examiner opined that the Veteran's psoriatic skin lesions, seborrheic keratosis, and recurrent MRSA skin abscesses were less likely than not incurred in or caused by the claimed in-service injury, event or illness. In this regard, the examiner noted that the Veteran's service treatment records and claims file were silent for the diagnosis and treatment for skin conditions, that there was no evidence of a diagnosis of any skin disability within a year from separation from active service and that the skin conditions had not been included in the list of presumptive medical conditions associated with herbicide exposure. Therefore, due to the lack of temporal proximity to service, the examiner opined the Veteran's skin disorders were less likely than not etiologically related to such service. Upon review of the above, the Board does not find the medical opinion evidence of record to be adequate for fairly adjudicating the Veteran's claim. First, the VA examiner failed to provide supporting rationale for the conclusions reached, and merely provided conclusory statements that the skin disorders are not related to service without explanation. Second, with respect to direct service connection, the examiner seems to rely solely on the lack of medical evidence in active service as a reason for denial. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Given these deficiencies, the Board is unable to find that substantial compliance with the prior remand has been achieved. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As such, remand is again required to obtain an addendum medical opinion that complies with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Service Connection Lumbar Spine Disorder and Right Lower Extremity Radiculopathy The Veteran seeks entitlement to service connection for a lumbar spine disorder. Specifically, he asserts that his lumbar spine pain began during his service in the Republic of Vietnam. See VA Form 21-4138 Statement in Support of Claim, September 24, 2010. As noted above, the Veteran's claim for entitlement to service connection for a lumbar spine disorder was most recently before the Board in June 2021, when it was remanded to the RO for further development. Specifically, the June 2021 Board determined that a VA examination was warranted. The Veteran was afforded the directed VA examination in August 2021. At that time, the examiner diagnosed lumbar spine degenerative disc disease and right lower extremity radiculopathy. The examiner opined that the Veteran's current low back diagnoses were less likely than not caused or aggravated by his service, to include complaints of low back pain during his service in the Republic of Vietnam, as credibly reported by the Veteran. In this regard, the examiner noted that there was no evidence that his back pain started in Vietnam, but rather lay statements indicated that his symptoms started later in the 1990s. With regard to right lower extremity radiculopathy, the examiner opined that such disorder was at least as likely as not related to his nonservice-connected low back condition. In that regard, the examiner noted that right lower extremity radiculopathy was shown to be caused by low back pain that radiated down his right leg, and medical evidence supported the fact that having lumbar degenerative disc disease is the most common etiology for the development of lower extremity radiculopathy. However, the examiner opined that the Veteran's right lower extremity radiculopathy was not caused or aggravated by active service, to include presumed in-service exposure to herbicides because there was no evidence and medical evidence did not support the fact that exposure to herbicides would possibly cause lower extremity radiculopathy. Upon review of the above, the Board does not find the medical opinion evidence of record to be adequate for fairly adjudicating the Veteran's claims. First, the VA examiner failed to provide supporting rationale for the conclusions reached, and merely provided conclusory statements that the lumbar spine disorder and right lower extremity radiculopathy are not related to service without explanation. Second, with respect to direct service connection, the examiner seems to rely solely on the lack of medical evidence in active service as a reason for denial. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Given these deficiencies, the Board is unable to find that substantial compliance with the prior remand has been achieved. See D'Aries v. Peake, supra; see also Dyment v. West, supra. As such, remand is again required to obtain an addendum medical opinions that complies with the Board's prior remand directives. See Stegall v. West, supra. Additionally, regarding the right lower extremity radiculopathy, the Board notes that the issue of entitlement to service connection for right lower extremity radiculopathy is inextricably intertwined with the claim remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claim for service connection for right lower extremity radiculopathy should be deferred pending final dispositions of the claim of entitlement to service connection for a lumbar spine disorder. 3. Service Connection Peripheral Neuropathy of the Bilateral Upper and Bilateral Lower Extremities The Veteran seeks entitlement to service connection for peripheral neuropathy of the right upper extremity, left upper extremity, right lower extremity, and left lower extremity, to include as due to herbicide agent exposure during his service in the Republic of Vietnam. The Board remanded these claims in June 2021 to obtain a VA examination and etiology opinion. The Veteran was afforded the directed VA examination in August 2021. At that time, the examiner found that, at this moment, there was no clinical evidence and no electrodiagnostic evidence of peripheral neuropathy at upper and lower extremities. An opinion as to the nature and etiology was therefore, not provided. Upon review of the above, the Board does not find the medical opinion evidence of record to be adequate for fairly adjudicating the Veteran's claims. In this regard, the examiner found the Veteran did not have current diagnoses of peripheral neuropathy of the extremities, however, the examiner failed to reconcile conflicting medical evidence of record. Namely, the August 2011 VA examination indicates the Veteran has peripheral neuropathy and/or symptoms of peripheral neuropathy. Additionally, the VA examiner failed to address the Veteran's lay statements and contentions that he experiences peripheral neuropathy symptoms in his bilateral upper and bilateral lower extremities. Given these deficiencies, the Board is unable to find that substantial compliance with the prior remand has been achieved. See D'Aries v. Peake, supra; see also Dyment v. West, supra. As such, remand is again required to obtain an addendum medical opinions that complies with the Board's prior remand directives. See Stegall v. West, supra. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. 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, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diagnosed skin disorder. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The need for further in-person examination is left to the discretion of the examiner. The examiner must opine whether the Veteran's skin disorder is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, to include the Veteran's presumed in-service exposure to herbicides. The examiner must reconcile any conflicting medical evidence of record. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate 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. 3. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diagnosed lumbar spine disorder. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The need for further in-person examination is left to the discretion of the examiner. The examiner must opine whether the Veteran's lumbar spine disorder is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, to include the Veteran's reports of low back pain during his service in the Republic of Vietnam. The examiner must reconcile any conflicting medical evidence of record. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate 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. 4. Following the receipt of outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any currently diagnosed peripheral neuropathy of the bilateral upper and bilateral lower extremities. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The need for further in-person examination is left to the discretion of the examiner. The examiner must opine whether the Veteran's peripheral neuropathy of the bilateral upper and bilateral lower extremities is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, to include the Veteran's presumed in-service exposure to herbicides. The examiner must reconcile any conflicting medical evidence of record, notably the August 2011 VA examination report indicating the Veteran had symptoms and/or signs of peripheral neuropathy of the extremities. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate 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. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.