Citation Nr: 21022091 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 18-00 459 DATE: April 14, 2021 REMANDED Entitlement to service connection for rhinitis is remanded. Entitlement to service connection for sinusitis is remanded. Entitlement to a compensable rating for pseudofolliculitis barbae is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Navy from June 1980 to February 1985. In January 2020, the Veteran testified at a hearing before the undersigned and a transcript of that hearing has been associated with the record. In February 2020, the Board of Veterans’ Appeal (Board) issued a decision that denied the appeal. The Veteran appealed the Board’s February 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 order, which incorporated the parties Joint Motion for Remand (JMR), the Court vacated and remanded the February 2020 Board decision. Entitlement to service connection for rhinitis and sinusitis are remanded. As to the claims of service connection for rhinitis and sinusitis, the JMR vacated and remanded the February 2020 Board decision because the March 2018 VA examination it relied upon when adjudicating the claims did not specifically address the Veteran’s claims that his disorders were due to his in-service exposure to oil and fumes as well as asbestos. Therefore, in order to comply with the JMR, the Board finds that a Remand is required to provide the Veteran with a new VA examination to obtain etiology opinions that address all his theories of entitlement. See 38 U.S.C. § 5103A(d); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). While the appeal is in Remand status any outstanding VA and private treatment records should also be obtained and associated with the record. See 38 U.S.C. § 5103A(b). Entitlement to a compensable rating for pseudofolliculitis barbae is remanded. As to the claim for a compensable rating for pseudofolliculitis barbae, the JMR vacated and remanded the February 2020 Board decision because, in substance, a 2017 private medical record which described bumps on the appellant’s skin as “persistent,” placed VA on notice that his disability had worsened since he was last examined in June 2016; therefore VA should have remanded the claim to provide the appellant with a new VA examination before adjudicating it. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (holding that “where the record does not adequately reveal the current state of a claimant’s disability, a VA examination must be conducted”). Therefore, in order to comply with the JMR, the Board finds that a Remand is required to provide the Veteran with a new VA examination to obtain medical opinion evidence as to the current severity of the Veteran’s pseudofolliculitis barbae. See 38 U.S.C. § 5103A(d); Forcier, supra; cf. McBurney, supra. In this regard, when again adjudicating this issue the RO should be mindful of the JMR’s direction to VA to consider 38 C.F.R. § 4.118, Diagnostic Code 7806 as well as the applicability of 38 C.F.R. § 4.118, Diagnostic Code 7800. See Forcier, supra; cf. McBurney, supra. The appeal is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran himself should submit and new pertinent evidence the Board/VA does not have (if any). This would include any recent VA treatment. Any help with the above would be appreciated. 3. In order to comply with the JMR, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of his rhinitis and sinusitis. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: Provide an opinion as to whether it is at least as likely as not that rhinitis and/or sinusitis had its onset directly during the Veteran’s service or is otherwise related to any event or injury during his service. In order to comply with the JMR, in providing answers to the above questions the examiner must consider and discuss, among other things, the Veteran’s competent lay claims regarding observable symptomatology as well as the following statements/evidence: i. the Veteran’s claims that his disorders were due to his in-service exposure to oil and fumes; ii. the Veteran’s claims that his disorders were due to his in-service exposure to asbestos which exposure has been documented in the record; iii. the November 2017 private physician’s medical opinion in which it was opined that “there is a causal relationship between the Veteran’s nasal obstruction and his military service in the boiler room;” and vi. the Veteran’s claims regarding having continued symptoms since service. In providing answers to the above questions the examiner should consider and discuss the positive service treatment records. In providing answers to the above questions the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering the question please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation he or she should so state and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. In order to comply with the JMR, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his pseudofolliculitis barbae. The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to identify all pathology found to be present. In providing the opinions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. In providing the opinions, the examiner should consider and discuss, among other things, the 2017 private medical record that describes the bumps on the Veteran’s skin as “persistent.” The examination report must include a complete rationale for all opinions expressed. 5. After undertaking the above development to the extent possible, the RO should issue a supplemental statement of the case (SSOC) that considers and discusses all evidence added to the record since the March 2018 and April 2018 SSOCs and, to comply with the JMR, also considers when rating the pseudofolliculitis barbae Diagnostic Code 7806 as well as the applicability of Diagnostic Code 7800. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.