Citation Nr: 21072817 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 15-03 919 DATE: December 6, 2021 REMANDED Entitlement to service connection for a skin disorder of the hands is remanded. Entitlement to a disability rating higher than 10 percent for lumbar spondylosis prior to May 16, 2018 is remanded. Entitlement to a disability rating higher than 40 percent disabling for lumbar spondylosis from May 16, 2018 is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1981 to June 2001. In May 2018, he testified via video conference before the undersigned. In August 2018, the Board of Veteran's Appeals (Board) remanded the issues for further development. In September 2020 the Board denied service connection for a skin disorder of the hands and higher evaluations for lumbar spondylosis which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2021, the Court issued an order that vacated the Board decision and remanded the claims for compliance with a Joint Motion for Partial Remand (JMPR). skin disorder lumbar spondylosis In the JMPR the Veteran and the VA Secretary (the parties) agreed that remand was warranted because the Board failed to provide adequate reasons or bases concerning whether there was substantial compliance with its August 2018 remand. In August 2018 the Board instructed the Agency of Original Jurisdiction (AOJ) to obtain private medical records from Tricare dated prior to October 2006 and from June 2014 showing treatment of the Veteran's service-connected lumbar spine disability and a skin disorder of the hands. In August 2019, the AOJ sent the Veteran a subsequent development letter requesting that he complete and return the enclosed authorization forms (VA Form 21-4142) so VA could obtain the identified treatment records on his behalf. The letter informed the Veteran that although VA would request the treatment records, it was ultimately his responsibility to make sure that the evidence was received to support his appeal. The Veteran did not respond with completed release forms authorizing VA to obtain the records, but in September 2019, he submitted records from Tricare dated from October 2006 to August 2013. He later submitted additional Tricare records dated from February 2016 to May 2020 which were admitted to the record. However, VA still does not have Tricare records prior to October 2006 and there is no indication that the AOJ sent an additional request to obtain them. Citing Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) the parties agreed that the Board failed to discuss whether VA substantially complied with the August 2018 remand concerning the Tricare records, leaving the Veteran unable to understand the precise basis for the Board's decision and the Court's judicial review was not facilitated. The parties also essentially agreed the Board relied on an inadequate medical opinion. Referring to the May 2018 Board hearing, they noted that the Veteran testified that he had a skin disorder of the hands during service and explained why he did not seek treatment for it then. They also noted the December 2019 VA examiner opined that the Veteran's current skin disorder was not directly related to service on the basis that there was no medical record that supported that he had received treatment in the service. Citing Miller v. Wilkie, 32 Vet. App. 249, 257 (2020), the parties noted that the Board found the Veteran's statements of a skin disorder during service were not competent, but did not otherwise make a credibility finding, and thus implicitly found them to be credible. The parties ultimately concluded that the December 2019 VA opinion is inadequate because the VA examiner did not consider the Veteran's May 2018 hearing testimony and that remand was required for a new medical opinion. Based on the foregoing, and consistent with the Court's August 2021 Order, the Board finds that these matters should be remanded to obtain the additional medical evidence necessary to adequately address the claims. The matters are REMANDED for the following action: 1. Obtain any available records (any not already associated with the file) of the Veteran's treatment from Tricare prior to October 2006. The Veteran must complete and return the necessary authorizations (and if unwilling to do so must be asked to so specifically state) to obtain such records. The Veteran should provide as much information as possible that will assist in locating these records, including the inclusive dates of treatment and the full address of the medical facilities and/or providers. If any records are unavailable, appropriate action should be taken (see 38 C.F.R. § 3.159 (c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. With respect to the lumbar spondylosis, after completion of the above development, as indicated in Section (1), the AOJ should consider whether any additional records received trigger the duty to assist by obtaining an addendum VA opinion/and or examination. If an additional examination is scheduled, the file, including any uploaded and relevant records, must be made accessible to the examiner. 3. Schedule the Veteran for appropriate VA examination to determine the etiology of the skin disorder of the hands. The examiner should elicit a detailed history regarding the onset and progression of relevant symptoms, and the examination report should include a discussion of the Veteran's documented medical history. Any medically indicated testing should be accomplished and the results included in the examination report. The examiner should identify all current skin disorders then state whether any diagnosed skin disorder of the hands at least as likely as not (a probability of 50 percent or greater) had its onset during military service. The examiner is advised that a lack of documentation of treatment in the service records or a lack of formal diagnosis during service cannot be the only basis by which to reject a possible nexus to service. In providing the requested opinion, the examiner must discuss: a) the objective medical findings in the service treatment records; b) the Veteran's May 2018 testimony that his hands would occasionally break out during service and he would treat it with lotion, and it would resolve. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). The examiner is asked to provide a complete rationale for the opinion offered, including discussion of the facts of this case and any medical studies or references relied upon. If he or she is unable to provide an opinion without resorting to speculation, they must provide a reasoned explanation for such conclusion. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Bryant 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.