Citation Nr: 21067722 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 15-06 289 DATE: November 5, 2021 REMANDED 1. Entitlement to service connection for a skin disability is remanded. 2. Entitlement to service connection for a right leg disability, to include as secondary to a back disability, is remanded. 3. Entitlement to service connection for a right hip disability, to include as secondary to a back disability, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from September 1984 to July 1987 and from March 1989 to March 1998. These matters are before the Board of Veterans' Appeals (Board) on appeal of a February 2012 Department of Veterans Affairs (VA) rating decision. In October 2017, a Travel Board hearing was held before the undersigned; a transcript is in the record. In June 2018 and June 2020, these matters were remanded for additional development. An April 2021 rating decision awarded service connection for right lower extremity radiculopathy, fully resolving that issue. 1. 2. 3. Entitlement to service connection for skin, right hip, and right knee disabilities. The June 2020 Board remand ordered development for VA examinations to determine the nature and likely etiology of the Veteran's skin, right knee, and right hip disabilities. The examiner was to note (and the rationale address) that pain resulting in functional impairment of earning capacity may constitute a compensable disability. Regarding the skin disability, the examiner was to specifically identify each skin disability shown by the record, provide an etiological opinion (noting the complaints in service) and identify the alternate etiology considered to be more likely if the skin disability was determined to be unrelated to service. On August 2020 VA skin examination, psoriasis was diagnosed. In a March 2021 addendum opinion, the examiner opined (without rationale) that there was no basis to support a service connected "seaborrhic conditions" based on the information above (excerpts of VA treatment records from 2015 and 2016). The examiner does not define what is considered a "seaborrhic condition," does not address the complaints and treatment noted in his service treatment records (STRs), or provide an alternative etiology for each skin disorder found/shown by the record. The opinion is not responsive to the Board's remand directives, and corrective action is necessary. See Stegall v. West, 22 Vet. App. 268 (1998). On August 2020 VA knee examination, a right meniscus tear and right psoriatic arthritis were diagnosed, although diagnostic testing only showed degenerative or traumatic arthritis of the left knee. The examiner did not opine regarding etiology of the right knee disability. The opinion is non-responsive to the Board's remand directives, and corrective action is necessary. See Stegall, 22 Vet. App. at 271. On March 2019 VA hip examination, the Veteran reported right hip pain and loss of function. On August 2020 VA hip examination, the examiner indicated there was no evidence of a right hip disability (noting there was no current diagnosis of such). Notably, diagnostic studies were not conducted; additionally, pain may, in the absence of a diagnosis or underlying pathology, be considered a current disability under 38 U.S.C. §§ 1110, 1131 if it results in functional impairment of earning capacity. See Saunders, 886 F.3d 1356. An addendum examination to confirm whether or not there is a chronic right hip disability, and if so, ascertain its etiology (based on consideration of the entire record compiled) is necessary. Additionally, it appears that the Veteran has received private treatment for his orthopedic conditions. The August 2020 VA knee examination noted he underwent a meniscectomy in 2019. A September 2019 VA treatment record notes he injured his right knee at work and was being treated through Worker's Compensation. A review of the record found that the Agency of Original Jurisdiction (AOJ) has not sought treatment records from those providers or asked the Veteran to provide a completed VA Form 21-4142 authorizing VA to secure such records. Such records, if existing, are likely to contain pertinent information, and any such VA records are constructively of record; consequently, the treatment records must be sought. The matters are REMANDED for the following: 1. Ask the Veteran to identify all providers of evaluations and treatment he has received for the disabilities remaining on appeal (and to complete and submit a VA Form 21-4142 authorizing VA to secure for the record complete clinical records of all private such evaluations and treatment), specifically including complete records preceding, of, and in follow-up to, his 2019 meniscotomy surgery. Secure for the record complete (all outstanding) clinical records of the evaluations and treatment from all providers identified. If any private records identified are not received pursuant to VA's request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private medical records are received. Secure for the record updated (to the present, all outstanding) complete clinical records of VA evaluations and treatment the Veteran has received for the disabilities remaining on appeal. 2. Then, arrange for the Veteran's record to be forwarded to an appropriate clinician for review and an advisory medical opinion regarding the etiology of any current skin disabilities. [If further examination of the Veteran is deemed necessary for an opinion sought, such should be arranged.] Upon review of the record (noting specifically complaints and treatment for a skin rash during service), the consulting provider should: (a.) Identify (by diagnosis) each skin disorder found/shown by the record, describing it in detail. (b.) Identify the likely etiology for each such disability diagnosed. Specifically, is it at least as likely as not (a 50 percent or greater probability) that it is etiologically related to the Veteran's service/was incurred (to include as related to his complaints and treatment for a skin rash) therein? (c.) If a skin disability is determined to be unrelated to the skin complaints noted in service, identify the etiology considered to be more likely, and explain why that is so. All opinions must include rationale. 3. Also, arrange for the Veteran's record to be forwarded to an appropriate clinician (in orthopedics) for review and an advisory medical opinion regarding the etiology of his current right knee and alleged right hip disabilities. [If further examination of the Veteran is deemed necessary for an opinion sought, such should be arranged.] Upon review of the record, the consulting provider should: (a.) Identify (by diagnosis) each right knee and right hip disability entity found/or shown by the record. Regarding the alleged hip disability, the examiner should note (the rationale should address) that pain resulting in functional impairment of earning capacity may of itself constitute a compensable disability. Also, indicate whether the disability is a separate (from the service-connected right lower extremity radiculopathy) hip disability entity or whether it is merely a manifestation of the service-connected right lower extremity radiculopathy disability (to be considered in rating the right lower extremity radiculopathy). (b.) Identify the likely etiology for each right knee and right hip disability entity diagnosed. Specifically, is it at least as likely as not (a 50 percent or greater probability) that it began in (or is otherwise etiologically related to) the Veteran's military service, to include as due to the type of rappelling injury he describes, or was (i) caused by or (ii) aggravated by (increased in severity due to) the service-connected back disability. [The opinion must address aggravation.]? (c.) If a diagnosed right knee and/or right hip disability is determined to not be etiologically related to the Veteran's service or caused or aggravated by a service-connected disability, identify the etiology that is considered to be more likely (and explain why that is so). Include rationale with all opinions. If an opinion sought cannot be provided without resort to mere speculation, there must be a complete explanation why this is so. Indicate whether the inability to provide a more definitive opinion (without mere speculation) is the result of a need for additional information (if so, identify what further information is needed) or due to limitations in the current state of medical knowledge. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.