Citation Nr: 21069684 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 13-34 414 DATE: November 19, 2021 REMANDED Entitlement to service connection for residuals of a left toe ingrown nail is remanded. Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for a sinus condition, to include chronic sinusitis and allergic rhinitis, is remanded. Entitlement to service connection for a skin condition, to include tinea unguium, xerosis, hand dermatitis, and paronychia, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1953 to February 1955. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from August 2010 and October 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Board issued a decision denying service connection for residuals of a left toe ingrown nail, migraine headaches, a sinus condition, and a skin condition. The Board also denied the Veteran's claim for entitlement to a TDIU. The Veteran appealed the matter to the Court of Appeals for Veterans Claims (Court), which vacated the September 2020 Board decision, pursuant to a June 2021 Joint Motion for Remand (JMR). The Court remanded the matter for action consistent with the terms of the JMR. In the June 2021 JMR, the parties agreed that all claims decided in the September 2020 Board decision should be vacated and remanded, as the Board failed to ensure substantial compliance with its July 2017 remand order. In the July 2017 decision, the Board remanded the matter, in part, to obtain "any outstanding VA and/or private medical records." In July 2017, after the Board issued its remand, the Puerto Rico RO received the Veteran's authorization for the release of records. The Veteran identified treatment at the VA Mayaguez outpatient clinic and VA Caribbean Healthcare System since 1973. However, on July 20, 2017, a VA private medical contractor issued a medical records request rejection, noting the reason for rejection as a "Foreign Veteran Address" and that the request "must be worked via the traditional process." Accordingly, in August 2018, the Board remanded the Veteran's claims, directing that "[a]fter obtaining any necessary releases, obtain any outstanding VA or private medical records and associate them with the claims file." In the decision on appeal, the Board stated that post-service VA treatment records from the San Juan VAMC were associated with the Veteran's claim file. However, as noted above, the Veteran has expressly identified outstanding VA treatment records since 1973 to substantiate his claims on appeal and there is no indication that VA has attempted to obtain such treatment records. A June 2020 supplemental statement of the case (SSOC) noted VA treatment records from June 2001 through March 2020, but prior to 2001, only records from January 1997 to December 2000 from the Mayaguez Clinic have been associated with the claims file. Further, the record does not reflect that VA was informed that treatment records from 1973 to at least 1997 no longer existed or that further efforts would be futile. The Board did not address whether there were outstanding treatment records in the period of time between the 1973 and the earliest treatment records already associated with the claims file. Accordingly, as to all claims, the parties agreed that the Board erred in ensuring compliance with prior Board remand to obtain any outstanding VA or private medical records. A remand confers on the claimant, as a matter of law, the right to compliance with the remand order. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the claims must be remanded in order to obtain all VA treatment records since 1973 or a determination that such records do not exist or that further efforts to obtain them would be futile. 1. Entitlement to service connection for a skin condition, to include tinea unguium, xerosis, hand dermatitis, and paronychia, is remanded. In addition to the failure to obtain VA treatment records discussed above, the parties also agreed that the Board failed to ensure that the Veteran was afforded an adequate VA examination as to his skin condition. Specifically, the parties noted that the July 2019 examiner failed to adequately address the Veteran's medical history, including an August 1953 record indicating that the Veteran was admitted for treatment of lesions on the back of his neck. See May 2018 BVA General, p. 5. The Veteran experienced the lesions for approximately two weeks and stated that they itched. Id. Accordingly, in compliance with the JMR, the claim must be remanded in order to afford the Veteran a new VA skin conditions examination. See Stegall, supra. 2. Entitlement to a TDIU remanded. The Veteran's claim of entitlement to a TDIU is inextricably intertwined with the issues addressed above and will be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). The matters are REMANDED for the following action: 1. Obtain all outstanding VA and/or private medical records and associate them with the claims file. In accomplishing the above, the AOJ is advised that the Veteran has reported treatment by VA providers since 1973. See July 2017 VA Form 21-4142, Authorization for Release of Information. If the AOJ is unable to obtain all VA treatment records since 1973, an explanation must be associated with the claims file that discusses why such records may not be located or why further efforts to obtain them would be futile. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his skin condition(s). Any indicated evaluations, studies, or tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion and the examination report should include a discussion of the Veteran's documented medical history and assertions. The examiner must address the following: 3. Determine all current diagnoses of the Veteran's skin disorders. 4. For each diagnosis, determine whether it is at least likely as not (a 50 percent probability or greater) that the condition was incurred in, caused by, or is otherwise related to the Veteran's active-duty service. In responding to the above, the examiner must address the August 1953 service treatment record indicating that the Veteran experienced lesions on the back of his neck for approximately two weeks and that they itched. See May 2018 BVA General, p. 5. 5. After completing the above actions and any other indicated development, the issue of the Veteran's entitlement to a TDIU must also be adjudicated. D. SMART Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Watkins, 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.