Citation Nr: 21066551 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 13-13 155 DATE: November 1, 2021 REMANDED Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. Entitlement to service connection for eczema is remanded. Entitlement to service connection for onychomycosis is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2001 to August 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the record. The Board remanded the case for further development in September 2017 and May 2020. The case has since been returned to the Board for appellate review. Upon review, the Board finds that additional development is needed prior to adjudication of the issues on appeal. The Veteran was afforded a VA examination in July 2020 in connection with his claim for irritable bowel syndrome. The examiner opined that the disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In rendering the opinion, she noted that he denied having gastrointestinal symptoms during his separation examination and that the Veteran first reported possible symptoms of irritable bowel syndrome in August 2013, which was two years after his military service. However, the examiner did not explain the significance of those facts, reconcile that finding with the Veteran's reports of continuity of symptomatology since service, or address whether his in-service symptoms could have later caused his irritable bowel syndrome. Therefore, the Board finds that an additional VA medical opinion is needed. The July 2020 VA examiner also opined that it was less likely than not that the Veteran has eczema or onychomycosis that was incurred in or caused by the claimed in-service injury, event, or illness. In so doing, she noted that he had been diagnosed with dermatitis in 2020, yet stated that a current diagnosis of eczema and onychomycosis could not be verified because she was unable to satisfactorily visualize the skin, as the examination was performed using video tele-health. She indicated that an in-person appointment was offered and scheduled, but the Veteran was not able to make it to that examination. The July 2020 VA examination report notes that the Veteran had to cancel the in-person examination, but that he requested that it be rescheduled in four weeks. A September 2020 report of contact indicates that the Veteran stated that he was traveling overseas the next day for one year due to employment. He provided his contact information and noted that he would also have video capability overseas. There is no indication that that the Veteran was subsequently notified of any scheduled examination. The Board is mindful of the provisions of 38 C.F.R. § 3.655 regarding action to be taken when a veteran fails to report for a scheduled VA examination "when entitlement to a benefit cannot be established" without the scheduled examination. 38 C.F.R. §§ 3.655(a), (b) (2015). Nevertheless, in this case, it is unclear whether the Veteran was properly notified, and there is no published guidance establishing the presumption of regularity in such a situation. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). Moreover, it has now been over one year since the Veteran originally indicated that he would be overseas. In remanding eczema and onychomycosis issues, the Board notes that the "duty to assist is not always a one-way street," and that the Veteran has an obligation to actively participate, to include attending scheduled VA examinations. He is expected to cooperate in the efforts to adjudicate the claim, and his failure to do so would subject him to the risk of an adverse adjudication based on an incomplete and underdeveloped record. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). Pursuant to 38 C.F.R. § 3.655, failure to appear for scheduled VA examinations may detrimentally affect the claims. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for eczema, irritable bowel syndrome, and onychomycosis that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records. 2. The AOJ should notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation which shows that notice scheduling the examination was sent to the last known address should be associated with the claims file. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. After completing the foregoing development, the AOJ should obtain a medical opinion to determine the etiology of any current irritable bowel syndrome. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran currently has irritable bowel syndrome that manifested in or is otherwise related to the Veteran's military service, including any symptomatology therein. In rendering this opinion, the examiner should address the Veteran's lay statements regarding symptoms in service and thereafter. He or she should also discuss the significance, if any, in any gap of time in time between the Veteran's military service and subsequent treatment. The examiner should further discuss whether the Veteran's current disorder could be related to his in-service symptoms even if irritable bowel syndrome did not develop until a later time, to include whether his condition in service could have later resulted in subsequent irritable bowel syndrome. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After obtaining any outstanding records, the Veteran should be afforded a VA examination to determine the nature and etiology of any eczema that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether the Veteran has had a diagnosis of eczema or a related skin disorder at any time since filing his claim in June 2011or within close proximity thereto. If so, the examiner should state whether it is at least as likely as not that the disorder manifested in or is otherwise related to the Veteran's military service, including any symptomatology or exposure to hazardous materials therein, such as such as paint, paint remover, and paint thinner. The Veteran has reported that he began having rashes, itchiness, and a burning sensation on his skin in 2002, and a November 2016 record indicated he was been referred to dermatology for eczema treatment. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After obtaining any outstanding records, the Veteran should be afforded a VA examination to determine the nature and etiology of any onychomycosis that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether the Veteran has had a diagnosis of onychomycosis at any time since filing his claim in June 2011 or within close proximity thereto. If so, he or she should state whether it is at least as likely as not that the Veteran's onychomycosis manifested in or is otherwise related to the Veteran's military service, including his wearing of boots with sweat and moisture during service and any symptomatology therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. The AOJ should ensure compliance with the prior remand directive and conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.