Citation Nr: 21012492 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-39 749 DATE: March 4, 2021 REMANDED 1. Entitlement to service connection for chronic kidney disease, to include as due to Agent Orange exposure, is remanded. 2. Entitlement to service connection for peripheral vascular disease, to include as due to Agent Orange exposure, is remanded. 3. Entitlement to service connection for a skin disorder, to include as due to Agent Orange exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1966 to September 1969, and from January 1971 to July 1975. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a January 2018 hearing. These issues were previously before the Board in June 2018, when they were remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. 1. Entitlement to service connection for chronic kidney disease, to include as secondary to Agent Orange exposure, is remanded. 2. Entitlement to service connection for peripheral vascular disease, to include as secondary to Agent Orange exposure, is remanded. 3. Entitlement to service connection for dermatomyositis, to include as secondary to Agent Orange exposure, is remanded. Remand is required for substantial compliance with the June 2018 Board remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The June 2018 Board remand instructed the RO to obtain and associate with the claims file any outstanding VA or private treatment records (PTRs), and to provide the Veteran with VA examinations for each of these issues on appeal. Additional VA treatment records were successfully added to the claims file in February 2019. The RO also sent a letter in February 2019 to the Veteran requesting that he identify and authorize for release any outstanding PTRs. The Veteran did not reply to this letter. In June 2019 the RO contacted the Veteran who confirmed that he did not have any additional records to submit. During that June 2019 phone call, the RO also informed the Veteran that he would be scheduled for an examination soon, and that if he needed to reschedule or if he is unable to attend, that he needs to inform them. A July 2019 note in the Veteran’s claims file indicates that the examinations were canceled because the Veteran failed to RSVP. The June 2018 Board remand directives instructed the RO that in the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address, and whether any notice that was sent was returned as undeliverable. A careful review of the claims file finds no evidence that the Veteran was actually contacted by telephone or mail to inform him that he was scheduled for examinations in July 2019. An August 2019 note in the claims file indicates that the RO attempted to call the Veteran 7 times at the Washington State Soldiers Home where the Veteran resides, but that they had difficulty navigating the automated phone directory. In October 2019, the RO sent a letter to the Veteran informing him that they had requested that the examinations be conducted through a private medical facility, and that the private facility would soon advise him of the date, time, and place of the examinations. The letter also stated that the notification would be in writing, by telephone, or both. Only 9 days following the date of the letter, the RO added notes to the claims file indicating that the examinations were canceled because the Veteran failed to show. A careful review of the claims file finds no evidence that the Veteran was ever actually contacted in writing or by telephone with the4 date and time of the examinations. This is illustrated by a gap of only 9 days between the date of the letter informing him that he would soon be scheduled for the examinations, and the date of the actual examinations. Accordingly, remand is required for VA examinations. Additionally, as noted above, the Veteran informed the RO in the June 2019 phone call that he did not have any additional medical records that he would like to provide. The duty to assist a claimant is not a one-way street, and in the instant case, the Veteran must cooperate by responding to the RO’s request for authorization to request records to the full extent in the development of the claim. See Wood v. Derwinski, 1 Vet. App. 406 (1991) (noting that VA’s duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where their assistance to VA is necessary). However, as these issues are already being remanded, the Veteran will be given another opportunity to identify and authorize for release any outstanding PTRs. The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his peripheral vascular disease. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the peripheral vascular disease had onset in, or is otherwise related to, active military service, including his conceded exposure to Agent Orange. (b) The examiner must address following: 1) the Veteran’s exposure to Agent Orange during service, as conceded by the Board; 2) the Veteran’s lay statements contained in the January 2018 Board hearing; 3) August 2013 VA Agent Orange examination; and 4) all relevant VA and private treatment records. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his chronic kidney disease. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the chronic kidney disease had onset in, or is otherwise related to, active military service, including his conceded exposure to Agent Orange. (b) The examiner must address following: 1) the Veteran’s exposure to Agent Orange during service, as conceded by the Board; 2) the Veteran’s lay statements contained in the January 2018 Board hearing; 3) October 2014 VA letter regarding his kidney condition; 4) August 2013 VA Agent Orange examination; and 5) all relevant VA and private treatment records. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his skin disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a) First, the examiner must provide all diagnoses of skin disorders, to include whether there are diagnoses of dermatomyositis, scalp dermatosis, chloracne, and skin cancer. (b) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the each diagnosed skin disorder had onset in, or is otherwise related to, active military service, including his conceded exposure to Agent Orange. (c) The examiner must specifically address following: 1) the Veteran’s exposure to Agent Orange during service, as conceded by the Board; 2) the Veteran’s lay statements contained in the January 2018 Board hearing; 3) April 2014 VA letter regarding his skin condition; 4) August 2013 VA Agent Orange examination; and 5) all relevant VA and private treatment records. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38C.F.R.§§3.158, 3.655 (2019). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.