Citation Nr: 21024259 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 11-13 601 DATE: April 22, 2021 REMANDED Entitlement to service connection for kidney stones, to include as due to in-service hazardous environmental or chemical exposures, is remanded. Entitlement to service connection for a skin disorder other than tinea corporis with folliculitis of the posterior neck and scalp, to include psoriasis, tinea versicolor, and dermatitis, is remanded. Entitlement to a compensable disability rating for tinea corporis with folliculitis of the posterior neck and scalp is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from February 1999 to July 1999, and from January 2005 to November 2005, with service in Southwest Asia. The Veteran’s participation in combat activity during his service has been recognized by VA, including as discussed in a March 2011 rating decision of record. This matter is before the Board of Veterans’ Appeals (Board) on appeal from June 2012 and March 2018 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA) or the Agency of Original Jurisdiction (AOJ). The issues of entitlement to service connection for kidney stones and for skin disorders, other than tinea corporis and folliculitis of the posterior neck and scalp, come before the Board on appeal of a June 2012 RO rating decision. An April 2017 Board decision remanded these issues to the AOJ for additional development (after reopening issues that had been subject to prior final adjudications). These issues were remanded by the Board again in September 2018 and were remanded most recently in July 2020 in order to obtain an adequate opinion regarding service connection for kidney stones and for adjudication of the remaining unresolved skin issues. The issue of entitlement to an increased rating for tinea corporis and folliculitis of the posterior neck and scalp comes before the Board on appeal of a March 2018 RO rating decision. A July 2019 Board decision remanded these issues to the AOJ for additional development. A March 2020 rating decision granted service connection for tinea corporis with folliculitis of the posterior neck and scalp. A July 2020 Board decision remanded the issue in order for a supplemental statement of the case (SSOC) to be issued which considered the aggregated involvement of all of the areas of the skin for all of the service-connected skin impairments. In November 2020, an SSOC was issued regarding each of the issues indicated above. Another SSOC was issued in January 2021 pertaining to service connection for kidney stones. The appeal has now been returned to the Board for further appellate review. The Board notes that the Veteran, through his representative, attempted to opt in to the Appeals Modernization Act (AMA) for the increased rating claim for tinea corporis. See VA Form 20-0995 Request for Supplemental Claim received March 24, 2021. The Board does not consider this a valid opt in to the AMA. The Legacy appeal for this claim already was activated at the Board prior to receipt of the request for Supplemental Claim. In other words, the appeal was not eligible for consideration under the AMA and is not considered withdrawn. Accordingly, the Board maintains jurisdiction over this Legacy claim. 1. Entitlement to service connection for kidney stones, to include as due to in-service hazardous environmental or chemical exposures, is remanded The September 2018 and July 2020 Board decision remanded the issue of service connection for kidney stones in order to obtain a well-reasoned opinion considering whether the Veteran’s kidney stones were at least as likely as not related to his active-duty military service to include hazardous environmental or chemical exposure. The remands each found that the previous VA kidney stones examinations provided only conclusory opinions and did not fully consider the Veteran’s particular exposures during his military service. In January 2021, an addendum VA kidney stones opinion was provided based on a review of the claims file. The examiner opined that it is not as likely as not that the Veteran’s nephrolithiasis was caused by any or all of the in-service toxic exposures. The examiner stated that none of the exposures individually or collectively causes kidney stones, and the Veteran’s last service was November 8, 2005 and the kidney stones occurred in 2007. There has not been identified a toxin or pollutant that waits two years to cause a kidney stone. Unfortunately, the January 2021 examiner did not specify the exposures that were considered and did not explain why those particular exposures are not related to kidney stones based on the medical literature. The previous remands made clear that the examiner must address the Veteran’s specific exposure contentions. The Veteran is a combat Veteran, and in an August 2009 statement he described spending “about 10 days” in a location “in the middle of this exposed dump site” where “the towns dump their garbage and waste.” In a December 2019 statement he has described that he was “exposed to dust and explosive discharge when my vehicle ran over a landmine.” He was exposed to “dust and explosive discharge” on another occasion when an “IED ‘blew up’ directly under my Humvee…,” and he was exposed to “filthy” conditions associated with proximity to “garbage dump.” Because the January 2021 examiner did not consider these exposures, his medical opinion did not comply with the July 2020 remand. To support the conclusions reached in the January 2021 opinion, the examiner referenced a medical article which discussed the common causes of kidney stones. The article did not address whether exposure to toxins or pollutants is related to the development of kidney stones. That issue was not a focus of the article, and as such, the article did not contribute any relevant information to the issue of whether the Veteran’s kidney stones were at least as likely as not related to his exposure to toxins and pollutants during his military service. The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that “a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor’s opinion”). Medical evidence is considered probative when it is factually accurate, fully articulated, and provides sound reasoning for the conclusion. Id. In this case, the January 2021 examiner provided conclusory opinions that did not address the specific facts involved and attempted to support those conclusions with an irrelevant article. As such, the examiner’s opinion did not provide sufficient rationale based upon valid medical analysis to the significant facts of the particular case, rendering the opinion inadequate. Id. Lastly, the examiner failed to include a copy of his/her curriculum vitae as directed by the July 2020 remand. The Board finds that judicial review is frustrated in this appeal by the AOJ’s apparent failure to comply with prior remand directives. A remand confers on the claimant, as a matter of law, the right to compliance with the remand order and imposes upon the VA a concomitant duty to ensure compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this claim again, additional development is required before the underlying claim can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). 2. Entitlement to service connection for a skin disorder other than tinea corporis with folliculitis of the posterior neck and scalp, to include psoriasis, tinea versicolor, and dermatitis, is remanded The September 2018 Board decision remanded the issue of service connection for skin disorder, other than folliculitis of the posterior neck and scalp, in order to obtain an opinion regarding whether the Veteran’s tinea corporis and psoriasis are at least as likely as not related to has active service, including as due to hazardous environmental or chemical exposure during deployment to the Middle East, and whether the conditions were caused or aggravated by his service-connected folliculitis of the posterior neck and scalp. The July 2020 remand recognized that the issue of service connection for multiple skin conditions had not been fully adjudicated by the AOJ and remanded it in order for an SSOC to be issued which considered all of the skin conditions. Although the AOJ issued an SSOC in November 2020, the Board finds that the January 2019 VA skin examination opinion and the May 2020 addendum to the VA skin examination opinion were inadequate for VA adjudication purposes. The January 2019 VA skin examination stated that the Veteran had diagnoses of dermatitis, tinea corporis, tinea versicolor, psoriasis and folliculitis. The examiner noted that the Veteran had a rash around the genitals and arm pits, folliculitis on the back of the head and neck, tinea versicolor on the upper arms, shoulders and base of posterior neck, tinea corporis in areas where the skin rubs together and the underarms, dermatitis on the right ear, and no specification of the areas of psoriasis was provided. He did not provide any opinion whether the Veteran’s diagnosed tinea versicolor is related to his military service. He determined that the tinea corporis existed prior to his military service but was aggravated by his service in the Middle East. He opined that the psoriasis and dermatitis are less likely as not incurred in or caused by his military service, and stated that the psoriasis and dermatitis were not aggravated beyond their natural progression by service-connected folliculitis of the posterior neck and scalp. He did not address whether the psoriasis, tinea corporis, and dermatitis were caused by his service-connected folliculitis. He provided only conclusory opinions and did not explain why there is no relationship between the Veteran’s diagnosed skin conditions and his exposures in the Middle East. He did not provide any medical literature to substantiate or support the opinions and did not include the particular facts involved. As such, the opinion is inadequate because the examiner’s opinion did not include thorough medical analysis to the significant facts of the particular case in order to reach the conclusion. Because the January 2019 VA examiner did not address the issue of whether the Veteran’s psoriasis was caused by his service-connected folliculitis, the AOJ requested an addendum opinion. The May 2020 addendum opinion addressing psoriasis also is inadequate as it mischaracterizes the diagnosis of psoriasis as having never been diagnosed when the January 2019 examination noted that there was a diagnosis of psoriasis although no psoriasis was found at that examination. Based on the improper determination that the Veteran has no diagnosis of psoriasis the May 2020 examiner determined there is no causal relationship to the service-connected folliculitis. Because this examiner did not accurately apply the facts, the May 2020 opinion is inadequate. There is no other medical opinion of record which addresses the contended etiological relationships between a skin disorder other than tinea corporis with folliculitis of the posterior neck and scalp, to include diagnosed psoriasis, tinea versicolor, and dermatitis, and active service. Thus, the Board finds that, on remand, another opinion should be obtained by the AOJ which addresses this matter. 3. Entitlement to a compensable disability rating for tinea corporis with folliculitis of the posterior neck and scalp and to a TDIU is remanded The Veteran contends that his service-connected tinea corporis with folliculitis of the posterior neck and scalp is more disabling than currently evaluated. Remand of this claim is necessary because the AOJ did not comply with the July 2020 remand directives. In that remand, the Board directed that the AOJ consider the aggregated involvement of all of the areas of the skin for all of the service-connected skin impairments in evaluating the Veteran’s skin impairment. The AOJ granted service-connection for tinea corporis but described it as tinea corporis with folliculitis of the posterior neck and scalp. In other words, it appears the AOJ has isolated the Veteran’s tinea corporis to his posterior neck and scalp. His tinea corporis is not isolated only to his posterior neck and scalp, however. As discussed above, the January 2019 VA skin examination noted that the tinea corporis was in areas where the skin rubs together and the underarms. This potentially could cover a large part of the body. By limiting the tinea corporis to the posterior neck and scalp, the AOJ has not addressed evaluation of the additional areas affected by tinea corporis. Because adjudication of the other claims being remanded likely will impact adjudication of the claims for an increased rating for tinea corporis with folliculitis of the posterior neck and scalp and for a TDIU, the Board finds that these claims are inextricably intertwined. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Thus, adjudication of the increased rating claim for tinea corporis with folliculitis of the posterior neck and scalp and the TDIU claim must be deferred. The AOJ also should obtain the Veteran’s updated treatment records. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran’s updated treatment records. 2. Thereafter, forward the claims file and a copy of this REMAND to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran’s kidney stone/nephrolithiasis disorder. If possible, this opinion should be obtained from a clinician other than the clinician(s) who previously provided opinions on this matter. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the kidney stone/nephrolithiasis disorder, if diagnosed, is related to the Veteran’s specific identified in-service toxic exposures, including in particular his credible reports of exposures (including in combat) such as (1) spending ten days in an exposed waste dump site, (2) multiple incidents of direct and proximate exposure to landmine and IED explosions with associated “dust and explosive discharge” material, and (3) any other toxic exposure indicated by the record. The clinician must address each of the claimed in-service exposures in his or her opinion. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each kidney stone/nephrolithiasis disorder experienced by the Veteran, if appropriate. If any requested opinion cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is asked to provide a copy of his or her curriculum vitae as part of the VA examination report. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for a kidney stone/nephrolithiasis disorder, alone, is insufficient rationale for a medical nexus opinion. 3. Forward the claims file and a copy of this REMAND to a clinician for an opinion concerning the nature and etiology of the Veteran’s skin disability other than the service-connected tinea corporis with folliculitis of the posterior neck and scalp. If possible, this opinion should be obtained from a clinician other than the clinician(s) who previously provided opinions on this matter. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e. a 50 percent or greater probability) that a skin disability other than the service-connected tinea corporis with folliculitis of the posterior neck and scalp, to include dermatitis, tinea versicolor, or psoriasis, is related to active service or any incident of service, including as due to in-service hazardous environmental or chemical exposures during deployment to the Middle East. The clinician next is asked to state whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran’s service-connected tinea corporis with folliculitis of the posterior neck and scalp caused or aggravated another skin disability, to include dermatitis, tinea versicolor, or psoriasis. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each skin disability other than service-connected tinea corporis with folliculitis of the posterior neck and scalp, to include dermatitis, tinea versicolor, or psoriasis, experienced by the Veteran, if appropriate. If any requested opinion cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is asked to address the clinical significance of the article regarding “Tinea Infection” in his or her own medical nexus opinion. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for a skin disability other than service-connected tinea corporis with folliculitis of the posterior neck and scalp, to include dermatitis, tinea versicolor, or psoriasis, alone, is insufficient rationale for a medical nexus opinion. 4. Review the medical opinions, once obtained, and determine whether they comply substantially with the terms of this REMAND. If not, please take appropriate corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Temple, Associate 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.