Citation Nr: 21073701 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 19-34 966 DATE: December 10, 2021 REMANDED Entitlement to service connection for a skin disability of the face and neck is remanded. Entitlement to service connection for a skin disability of the underarms and groin is remanded. Entitlement to service connection for a kidney disability is remanded. Entitlement to service connection for a bilateral ear disability, to include recurrent infections, is remanded. REASONS FOR REMAND The Veteran had active service from January 1962 to January 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2009, September 2014, and October 2017 rating decisions of the Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). In April 2021, the Board remanded this appeal for further development. As noted in the April 2021 Remand, the RO had conceded that the Veteran's active service included time served at Dugway Proving Grounds (DPG) in 1962, and that he was possibly exposed to radiation and/or chemicals therein. Specifically, his personnel records show that he was sent to DPG in July 1962, and he has reported that he remained there until October 1962. The April 2021 Board Remand noted that, at that time, the RO did not appear to have attempted to verify any of the Veteran's assertions of exposures to toxins, including radiation, mustard gas and lewisite, and various other chemicals, with any of the appropriate record-holding entities. The Remand directed the RO to undertake appropriate development to verify his purported exposure to toxic substances, including chemical agentsto include, but not limited to, mustard gas and lewisite, as well as radiation while serving at Dugway Proving Grounds from July 1962 through October 1962. The Remand noted that the Veteran had submitted plenty of articles and evidence indicating some exposure could have occurred at DPG. On remand, however, the RO did not take all appropriate development as directed. Although it checked a database to attempt to confirm mustard gas exposure for the Veteran and sent him a radiation development form, no other verification of forms of toxic exposure of other substances were attempted. The RO also failed to schedule him for VA examinations with etiological opinions for the conditions on appeal, as also was directed in the April 2021 Board Remand. As such, the Board cannot conclude that there was substantial compliance with the April 2021 Remand directives 2 through 5 (reproduced in directives 1 through 4, below). Compliance with remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board errs as a matter of law when it fails to ensure compliance with remand orders. Id. As no evidence of the above described development exists in the claims file, the Board has no recourse but to remand these issues again to ensure that the previously requested development is completed. Id. These matters are, thus, REMANDED for the following actions: 1. Undertake appropriate development to verify whether the Veteran was exposed to toxic substances, including chemical agentsto include, but not limited to, mustard gas and lewisite, as well as radiation while serving at Dugway Proving Grounds from July 1962 through October 1962. In completing this development, the RO must review the Veteran's representative's March 2021 correspondence detailing all alleged toxin exposures the Veteran incurred during his service. 2. After all development has been fully completed pursuant to directive 1, above, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any skin conditions of his face and/or neck he may haveand the nature and etiology of any skin conditions of his underarms and/or groin area he may have. The examiner should clarify all skin disorders of the Veteran's head, face and/or neck that he has been diagnosed with at any time during the appeal period (from February 2009 to present), to include carcinomaand to clarify all skin disorders of his underarms and/or groin area that he has been diagnosed with at any time during the appeal period (from August 2017 to present). For each such diagnosed disorder, the examiner should: Opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed skin disability onset in, or is otherwise related to, any element of the Veteran's active service, to include toxic exposures from his service in Dugway Proving Grounds in 1962? The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or is the result of an exhaustion of the limits of current medical knowledge in providing an answer to that particular question. 3. Also after all development has been fully completed pursuant to directive 1, above, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any kidney disorder he may have. The examiner should clarify all kidney conditions that the Veteran has been diagnosed with at any time during the appeal period (from February 2009 to present) and, for each such diagnosed disability, should: Opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed kidney disability onset in, or is otherwise related to, any element of the Veteran's active service, to include toxic exposures from his service in Dugway Proving Grounds in 1962? The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or is the result of an exhaustion of the limits of current medical knowledge in providing an answer to that particular question. 4. Also after all development has been fully completed pursuant to directive 1, above, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any bilateral ear disorder, including recurring infections, that he may have. The examiner is asked to clarify all ear conditions that the Veteran has been diagnosed with at any time during the appeal period (from January 2014 to present), and respond to the following questions for each such diagnosed condition: Is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed ear disability onset in, or is otherwise related to, any element of the Veteran's active service, to include toxic exposures from his service in Dugway Proving Grounds in 1962? The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or is the result of an exhaustion of the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.