Citation Nr: 21068892 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 14-04 760 DATE: November 15, 2021 REMANDED Entitlement to service connection for a skin disability, to include as due to herbicide agent exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1963 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Board denied the Veteran's claim of entitlement to service connection for a skin rash in a November 2017 decision. See November 2017 BVA Decision. The Veteran subsequently appealed this decision to the U.S. Court of Appeals for Veterans Claims (CAVC or "the Court") and in a July 2019 Memorandum Decision, the Court vacated the November 2017 Board decision and remanded the matter for readjudication finding the Board's reasons and bases for denial with reliance on a January 2014 VA medical opinion to be inadequate. See July 2019 CAVC Decision. The claim returned to the Board in March 2020 at which time it was remanded to obtain a new VA examination in consideration of the Court's memorandum decision. See March 2020 BVA Decision. In March 2021, the matter returned again to the Board where in turn it was once again remanded finding no VA examination and medical opinion had been obtained as requested. As will be discussed below, while a VA examination and medical opinion has now been obtained, the resulting opinion was not fully responsive to the Board's directive and, therefore, further remand is required. Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a duty to ensure compliance with the remand). As an aside, the Board notes that the prior remand also directed the examiner to address the Veteran's reasonably raised theory of whether his skin disability is secondary to hypertension. During the pendency of this appeal, however, in an unappealed September 2020 rating decision, the Veteran's claim seeking entitlement to service connection for hypertension was denied. As the secondary theory is not possible as a matter of law, the theory is not further addressed herein. Entitlement to service connection for a skin disability, to include as due to herbicide agent exposure is remanded. The Veteran asserts that he has a skin rash as a result of his active-duty service. Specifically, he contends that he has "jungle rot" that had its onset during his service in the Republic of Vietnam. Several medical opinions have been obtained regarding the Veteran's claim. The most recent Board remand requested that a VA clinician determine whether it was at least as likely as not that the Veteran's skin condition had its onset in service and whether it is at least as likely as not that his skin disability is otherwise related to his time in service, to include presumed exposure to herbicides. The Board further instructed the examiner to consider the Veteran's lay statements on symptomology, regardless of whether there is corresponding medical documentation, when answering its questions; to specifically address and discuss the Veteran's conceded exposure to Agent Orange during his service in Vietnam; and to identify and specifically cite the reference material used. In an August 2021 opinion, the examiner provided a negative nexus opinion referencing past diagnoses of seborrheic keratosis, lentigo, and hemangiomas along with diagnosing the Veteran with the sole current condition of folliculitis of the scalp. However, the Board finds the examiner's opinion is inadequate; it appears that the examiner concluded that the Veteran's skin conditions were not the result of exposure to herbicide agents merely because their onset of symptoms did not occur until 4 to 5 years after service, and they are not included in the list of presumptive conditions in 38 C.F.R. § 3.309(e). The Veteran has contended throughout his appeal that his skin condition, including a rash, began during service and has continued ever since. See February 2014 VA Form 9. In addition, the Veteran's STRs indicate the Veteran was seen in January 1966 for acute irritation in the groin, tissue maceration in the groin, and perineal intertrigo. The examiner did not consider or otherwise reconcile the Veteran's lay statements or the January 1966 in-service treatment with the opinion rendered. See Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative); see also Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding when an examiner fails to address lay evidence, and the Board doesn't find the Veteran not credible or not competent to offer that evidence, the proper remedy is for VA to get a new exam). Further, although the examiner correctly noted that the Veteran did not have a presumptive skin condition associated with herbicide exposure, the examiner did not consider whether his skin diagnosis/diagnoses could be directly related to his conceded in-service herbicide exposure notwithstanding the applicability of the presumption. Combee v. Brown, 34 F.3d 1039, 1042-44 (Fed. Cir. 1994); see also Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009) (holding that even if a disease is not included on the list of presumptive diseases, a nexus can still be established based on direct service connection and particular relevance should be give to factors such as: medical studies that may or may not be found persuasive, whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition manifested itself in an unusual manner). Indeed, the July 2019 CAVC Memorandum Decision previously vacated the Board's previous denial of this issue based on reliance of a similar VA examination, dated in January 2014, finding no nexus to service merely because the Veteran's skin conditions were not on the list of presumptive conditions associated with herbicide exposure. The Court indicated that the Board improperly relied on this examination "...without discussing a theory of direct service connection based on Agent Orange exposure, which it is required to do." See CAVC July 2019 Memorandum Decision at 3. Thus, a new VA examination is indicated. Lastly, during the August 2021 VA examination, the Veteran indicated that he currently receives treatment from a private dermatologist twice a year and has been prescribed medication for his skin condition. It was further reported that the Veteran underwent biopsies of his skin condition in the past but was unable to recall what, if any, diagnosis was rendered. Upon review of the claims file, these private medical records have not yet been obtained. Accordingly, remand is appropriate to obtain these potentially relevant outstanding private treatment records. The matters are REMANDED for the following action: 1. After securing any necessary authorization, obtain any additional treatment records as the Veteran may identify relevant to the claims, including treatment records from any private dermatologist(s). 2. After any private dermatology treatment records have been associated with the claims file, to the extent possible, schedule the Veteran for a VA examination to assess the nature and etiology of the Veteran's skin disability. The claims file should be made available to the clinician for review of the case. After reviewing the claims folder, the clinician is specifically instructed to answer the following: Whether it is at least as likely as not that any found skin disability (either at the time of the examination or diagnosed at any time during the pendency of this appeal), to include, seborrheic keratosis, lentigo, hemangiomas, and folliculitis, had its onset in service or, if incurred after service, is otherwise due to any incident of his military service, to include his exposure to herbicide agents and in light of at least one in-service treatment in January 1966 for perineal intertrigo and the Veteran's statements of continuous symptomatology since service. In so opining, the examiner is directed to consider the Veteran's lay statements describing symptoms in service and since service, his in-service treatment, and his presumed herbicide exposure. The examiner is also reminded that a medical opinion finding no nexus based solely on the fact that the condition is not on the presumptive list of associated conditions with Agent Orange exposure is inadequate without a discussion into the claimant's specific risk factors and circumstances of service. Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009). The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. If medical literature is relied upon in rendering this determination, the clinician should identify and specifically cite each reference material used. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner 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. After completing the above, and any additionally indicated development, re-adjudicate the claim. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.