Citation Nr: 21077516 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 18-52 218 DATE: December 30, 2021 ORDER Entitlement to service connection contact dermatitis (skin condition) is denied. FINDING OF FACT The Veteran has not had a skin condition during the appeal period. CONCLUSION OF LAW The criteria for service connection for a skin condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1980 to April 1984. These issues are on appeal from an April 2018 rating decision from a VA Regional Office (RO). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In August 2021, the Board remanded this claim to have a VA examiner clarify the opinion for the claimed skin condition. The examiner had selected the option stating that the Veteran's skin condition was at least as likely as not related to service, but then provided a negative rationale. The Veteran underwent a VA skin examination in September 2021. The examiner explained that the Veteran did not have a persistent skin condition because at the examination, his skin was normal, there were no signs of a skin condition, and the records in the claims file did not show a skin condition. The examiner's explanation as to why the Veteran did not have a skin condition is adequate because it was based on an examination and a review of the evidence of record. Because the examiner found that the Veteran did not have a skin condition, no etiology opinion was needed. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disability, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran asserts that he was exposed to chemicals in service, and that he developed a rash. He contends that it recurs. He underwent a VA examination in April 2018. He claimed that he had a rash in service and that it appeared on and off and resolved. He reported not having the rash at the time of the examination. The examiner noted that the Veteran had a rash on his forearms in service per his service treatment records. The examiner then stated that the Veteran's medical records were silent for any complaints of skin symptoms on his forearms. At the examination, his skin was normal, and he had not been treated with oral or topical medications in the previous 12 months. The examiner concluded that the Veteran did not have recurrent treatment for dermatitis after service. He underwent a second examination in September 2021. The examiner stated that he did not have a current skin condition. The Veteran reported being exposed to chemicals in service and had a rash on his arm. He stated that the rash was gone, but that it recurred. The examiner stated that there were "no signs of rash noted on exam," and that he had "age-appropriate normal skin." He had not used medication in the previous 12 months for any skin condition. The Veteran's VA treatment records do not show complaints of a skin problem and his medication lists do not show that he used medications for his skin. His treatment records do not show reports of a periodic rash or skin condition. In November 2009, November 2013, January 2014, and February 2014, his skin was examined as part of reviews of systems and was found to be normal. The VA examinations and VA treatment records are persuasive evidence supporting a finding that he has not had a persistent skin condition during the appeal period. The Veteran asserted at his VA examinations that his skin rash recurred, each time for approximately 7 to 10 days, and then it resolved. He did not state how often this recurrence occurred. Although he is competent to state that he has a rash, his assertion of recurrence is less credible than the findings of the VA examiners and the VA treatment records which show multiple instances of normal skin. Additionally, the September 2021 VA examiner stated that there were "no signs" of a rash in addition to there not being a rash present at the time of the examination. Although the Veteran was not diagnosed with a skin condition, he also did not report skin symptoms that caused any functional impairment. The Board concludes that the Veteran does not have a skin disability for VA purposes during the appeal period. The first element of a service connection claim is not met. Shedden, 381 F.3d at 1166-67. Service connection for a skin condition is denied. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a bilateral foot condition is remanded. REASONS FOR REMAND The Veteran's claims for service connection for back and bilateral foot disabilities were remanded in August 2021. He is entitled to substantial compliance with the Board's remand directives. Stegall, 11 Vet. App. 268; Dyment v. West, 13 Vet. App. 141, 146-47 (1999). If the Board proceeds with final disposition of an appeal and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall, 11 Vet. App. at 271. The claims were remanded for the Veteran to receive VA examinations for his back and feet, which were provided in September 2021. The examiner was instructed to consider the Veteran's lay statements and regarding carrying a heavy ruck sack for long distances in service and having back and foot symptoms in service. The examiner failed to consider this evidence in forming his negative VA opinions. The examiner opined that there was "no clear pathology to identify a new diagnosis at this time except for thoracolumbar strain as described by symptoms he reported." The examiner stated that he reported symptoms "consistent with" back strain with radicular pain to his feet and toes, and stated that the Veteran needed to follow up with his primary care provider for "further evaluation due to his back condition." The examiner concluded that there was no diagnosis of a back disability. However, while the Veteran's range of motion was normal, he reported multiple examples of functional loss: difficult walking due to pain, difficulty cleaning his back, being unable to drive, being unable to reach things on high shelves, difficulty with stairs, and needing to sit down to cook. Functional impairment such as this is sufficient to qualify as a current disability. See Saunders v. Wilkie, 886 F.3d 1356 (2018). An etiology opinion is needed. The examiner diagnosed left foot pes planus that was "visually noted on exam," and then concluded "however, no diagnosis of bilateral foot disability." This opinion is inadequate for two reasons. First, the examiner should have provided an etiology opinion for the left foot pes planus, even if a right foot condition was not diagnosed. Second, the Veteran reported bilateral foot symptoms and functional loss. Even though he had "good" range of motion, he stated that he had constant pain in his toes and heels bilaterally, that he felt like he was "walking on needles and glass all the time," that he had swelling, difficulty bending ankles, and problems putting on his shoes. Upon examination, the Veteran had pain on use of both feet, with pain accentuated on use. He had swelling and calluses on both feet. The functional impairment that he described constitutes a disability for VA purposes and an opinion is needed. Saunders, 886 F.3d 1356. Because there has not been substantial compliance with the August 2021 remand directives, another remand is necessary. The Board stresses the importance of carefully following the directives of this remand to allow for a final resolution of these issues. The matters are REMANDED for the following action: 1. Provide the Veteran's claims file to a clinician so a supplemental opinion may be provided. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician must provide an opinion as to whether it is at least as likely as not that the Veteran's back disability began during active service or is related to an incident of service, including his lay statements that his back pain was caused by carrying around his heavy rucksacks in service and his report of continued back pain. Although an independent review of the claims file is required, the Board draws the clinician's attention to the Veteran's March 1984 report of medical history for separation where he reported recurrent back pain. The clinician should specifically consider and address the Veteran's lay statements in forming a nexus opinion. The clinician must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the clinician must state this and provide a rationale for such conclusion. 2. Provide the Veteran's claims file to a clinician so a supplemental opinion may be provided. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician must provide an opinion as to whether it is at least as likely as not that the Veteran's bilateral foot disability, including his diagnosis of left foot pes planus, began during active service or is related to an incident of service, such as his lay statements that his pain was caused by carrying around his heavy rucksacks in service. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. A January 1981 service treatment record (STR) noting painful feet with slight edema and tenderness over the lateral; aspect of both feet. b. A February 1981 STR noting stinging and burning sensation in both feet. c. March 1984 report of medical history for separation where he reported foot trouble. The clinician should specifically consider and address the Veteran's lay statements in forming a nexus opinion. The clinician must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the clinician must state this and provide a rationale for such conclusion. 4. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 5. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, 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.