Citation Nr: 21072209 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-39 477 DATE: December 2, 2021 ORDER Entitlement to service connection for a skin disorder, to include pseudofolliculitis barbae (PFB) and eczema, is denied. REMANDED Entitlement to service connection for a gastrointestinal disorder, to include diverticulitis, is remanded. Entitlement to service connection for polymyositis (claimed as general muscle weakness and loss of motion) is remanded. FINDING OF FACT The evidence of record does not show the Veteran had a diagnosis of a skin condition during the pendency of the appeal. CONCLUSION OF LAW The criteria for entitlement to service connection for skin disorder, to include PFB and eczema, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps on active duty from January 1974 to November 1975. The issues come before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the above issues in January 2020 to provide further development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be warranted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Entitlement to service connection for skin disorder, to include pseudofolliculitis barbae (PFB) and eczema The Veteran contends that he suffered skin conditions as a result of active-duty service. The Veteran underwent a VA skin condition examination in October 2020. The Veteran noted a history of skin conditions in service. The Veteran reported he received treatment while in service for eczema on his elbows. The Veteran noted that his eczema completely resolved since leaving active duty. Additionally, the Veteran reported he was diagnosed with PFB while in service. He noted that he received a no shaving form during active duty. The Veteran reported that once he stopped shaving in 1978, the condition resolved. The VA examiner noted the Veteran did not have a current diagnosis of a skin condition. The Veteran's service treatment records show complaints of and treatment for PFB in April 1975. The Veteran's service treatment records are absent of a diagnosis or recorded symptoms of eczema. The Veteran's clinical evaluation during the November 1975 separation examination noted normal findings of the Veteran's skin. Post-service medical records do not show a diagnosis of PFB or eczema. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (Fed. Cir. 1997). While the Veteran's service treatment record and the October 2020 VA examination reported the Veteran was diagnosed with PFB in service, the evidence of record does not establish a diagnosis of a skin condition during the pendency of the Veteran's appeal needed to establish a current disability for VA compensation purposes. Additionally, the Veteran is competent to provide an account of his own medical history, provided in the October 2020 VA examination, reporting that both his eczema and PFB resolved since active-duty service. The Board notes the Veteran's medical history is consistent with his statements that his skin conditions resolved prior to the period on appeal. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for gastrointestinal disorder, to include diverticulitis, is remanded. The Veteran contends that he suffers from diverticulitis that incurred in or is otherwise related to active service. While the Board regrets further delay, another remand is necessary to provide the Veteran with an adequate medical opinion, and to ensure substantial compliance with the January 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The January 2020 Board remand directives instructed the VA examiner to address the Veteran's service treatment records dated April 1975 and July 1975. As an initial matter, the Board recognizes that the actual dates of the relevant service treatment records are February 1975 and July 1975, which documented the Veteran's complaints of an upset stomach, nausea and vomiting, and stomach pains. The RO correctly identified these dates within the examination instructions. Pursuant to the January 2020 Board remand, the RO provided the Veteran an examination in October 2020 to address his claimed diverticulitis. Following an in-person examination and a review of the Veteran's claims file, the VA examiner confirmed the Veteran's diagnosis of diverticulitis and noted 2010 as the date of diagnosis. The VA examiner provided the medical opinion that the Veteran's diverticulitis was less likely than not incurred in or caused by an in-service injury, event, or illness. The VA examiner stated the Veteran's in-service gastrointestinal condition was acute only, and further noted the Veteran's service treatment records revealed no diagnosis of diverticulosis or diverticulitis. The Board notes the VA examiner commented that she was unable to locate the Veteran's February 1975 and July 1975 service treatment records. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Id. Here, remand is required to provide the Veteran a medical opinion addressing the Veteran's service treatment records in substantial compliance with the January 2020 Board remand. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); see also Dyment v. West, 13 Vet. App. 141, 147 (1999). 2. Entitlement to service connection for polymyositis (claimed as general muscle weakness and loss of motion) is remanded. The Veteran contends that his current diagnosis of polymyositis and muscle weakness resulted from active-duty service, to include as a result of exposure to contaminated drinking water while stationed at Camp Lejeune. Additionally, the Veteran asserts that presumptive service connection is appropriate as polymyositis is a form of Parkinson's disease. VA has a duty to provide the veteran a thorough medical examination, one which takes into account the veteran's prior medical history and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is fully informed. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In July 2020, the RO provided a medical opinion addressing the Veteran's polymyositis related to the Veteran's claimed exposure to contaminated water at Camp Lejeune. The VA examiner provided the opinion that the evidence of record did not demonstrate a relationship between the Veteran's general muscle weakness and limitation of motion claimed as polymyositis and the chemical exposure associated with the contaminated drinking water at Camp Lejeune. The examiner noted the Veteran's service records showed the Veteran did not serve at Camp Lejeune; thus, the evidence did not show an in-service event, disease, or injury related to polymyositis with zero days of potential exposure to contaminated water at Camp Lejeune. The Board notes, in the Veteran's July 2017 Form 9, the Veteran asserts that he served at Camp Lejeune for one week in September or October 1974, while he prepared for deployment in Okinawa, Japan. The July 2020 examiner failed to address evidence favorable to the Veteran, including the Veteran's lay evidence regarding his potential exposure to toxins in contaminated water during his week stay at Camp Lejeune. The Veteran is competent to provide objective lay evidence of what he actually observed within the realm of his personal knowledge, including reports of service history and the duration of his service at Camp Lejeune. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). Accordingly, remand is needed to provide the Veteran an opinion that accurately addresses the Veteran's lay evidence of record and clearly addresses the relationship between the Veteran's claimed condition and potential exposure to contaminated drinking water during his claimed week-long period of service at Camp Lejeune in 1974. Miller v. Wilkie, 32 Vet. App. 249, 260 (2020); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the October 2020 VA examiner regarding the Veteran's gastrointestinal condition, or, if not available, another appropriately qualified VA medical professional. If the examiner determines that an examination is needed to provide the requested opinion, then such examination should be scheduled and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The claims file should be reviewed in conjunction with the examination. A copy of this remand should be made available to the examiner. Following a review of the evidence of record, the examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's gastrointestinal condition, to include diverticulitis, had its onset during or is otherwise etiologically related to active-duty service. For the purposes of this examination, the VA clinician must address the Veteran's February 1975 and July 1975 service treatment records addressing stomach pain and symptoms of nausea and vomiting. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. 2. Obtain an addendum opinion from the July 2020 VA examiner regarding the Veteran's polymyositis, or, if not available, another appropriately qualified VA medical professional. If the examiner determines that an examination is needed to provide the requested opinion, then such examination should be scheduled and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The claims file should be reviewed in conjunction with the examination. A copy of this remand should be made available to the examiner. Following a review of the evidence of record, the examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's polymyositis had its onset during or is otherwise etiologically related to active-duty service, specifically to include as a result of Camp Lejeune contaminated water exposure. For the purposes of this examination, the VA clinician must address the Veteran's assertion that he served for one week in September or October 1974, stationed at Camp Lejeune; and the examiner must address the Veteran's potential exposure to contaminated water as a result of the Veteran's time at Camp Lejeune. The examiner must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.