Citation Nr: 21031857 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-03 364 DATE: May 24, 2021 REMANDED Entitlement to service connection for sleep disorder is remanded. Entitlement to service connection for skin disorder other than pseudofolliculitis barbae, to include eczema and dermatitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1992 to December 2012. His awards include the Joint Service Commendation Medal. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision which, inter alia, denied entitlement to service connection for sleeping disorder, and dyshidrotic eczema, face, and head, and dermatomycosis tinea versicolor face. In November 2018, the Board remanded these matters for further development. 1. Sleep Disorder Although the Board regrets the delay, additional development is needed to comply with the November 2018 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In response to the Boards November 2018 remand directives, the Veteran underwent a VA examination and an opinion was provided to address the etiology of his claimed sleep disorder. The examiner opined that the Veteran's claimed sleep disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was that in regard to the claim of obstructive sleep apnea, there is no pathology to render a diagnosis. The examiner noted that a July 2019 sleep study was negative for sleep apnea. The examiner further noted that there is no evidence of any other chronic sleep conditions or diagnosis of a sleep disorder in the medical records. However, the examiner failed to address service treatment records reflecting notations of trouble sleeping as directed by the remand. Notably, at the January 2021 VA examination, the Veteran reported a history of sleep disturbances (trouble falling asleep/insomnia) that began during service. Additionally, a February 2021 VA clinical record shows that on the insomnia severity index, the Veteran's scores were indicative of clinical insomnia (severe). In light of the above, the Board finds the examiner's opinion is inadequate and another VA medical opinion is required. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Hampton Vista electronic records system and are dated to February 2021. Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Skin disorder other than pseudofolliculitis barbae, to include eczema and dermatitis In the July 2013 rating decision, the agency of original jurisdiction (AOJ), amongst other things, denied entitlement to service connection for dyshidrotic eczema, face, and head, and dermatomycosis tinea versicolor face (now characterized as skin disorder, to include eczema and dermatitis). The AOJ also granted service connection for pseudofolliculitis barbae and assigned a noncompensable rating, effective January 1, 2013. In September 2013, the Veteran submitted a notice of disagreement (VA Form 21-0958) for the denial of claims, which included skin disorder, to include eczema and dermatitis. The Veteran did not indicate disagreement with the evaluation assigned or the effective date for the grant of service connection for pseudofolliculitis barbae. In December 2015, the AOJ issued a Statement of the Case (SOC) continuing the denial of service connection for skin disorder, to include eczema and dermatitis. The Veteran timely appealed in January 2016. In November 2018, the Board remanded the claim of entitlement to service connection for skin disorder, to include eczema and dermatitis, for further evidentiary development. In the Board's remand directives, the AOJ was instructed to obtain an addendum opinion addressing the etiology of any currently diagnosed skin disorder. The AOJ was then instructed to readjudicate the claim. In January 2021, the Veteran underwent a VA examination. The examiner opined that the Veteran's seborrheic dermatitis was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was that the Veteran had no issues related to the claimed "skin condition" prior to military service. The examiner indicated that the Veteran's current diagnosis of seborrheic dermatitis is related to the seborrheic dermatitis, therefore, evidence of chronicity and a nexus has been established. Also, in regard to the claim of skin condition, a diagnosis of seborrheic dermatitis is rendered. The examiner explained that during active duty, the Veteran presented with onset of face and scalp rash which was diagnosed by different physicians throughout his years of service as various skin conditions (seborrheic dermatitis, tinea, eczema, folliculitis). The examiner further explained that review of records concludes that the most likely source/correct diagnosis of the Veteran's recurrent face and scalp rash was/is seborrheic dermatitis, which he is currently still receiving treatment for. The examiner noted that the Veteran also has an identifiable separate and additional skin condition of pseudofolliculitis barbae of the face and neck which he is already service connected for since January 2013. In January 2021, the AOJ issued a supplemental statement of the case addressing the issue of entitlement to an initial compensable disability rating for skin disorder to include eczema and dermatitis. The AOJ recounted the examiner's positive nexus opinion for seborrheic dermatitis, then noted that a 0 percent evaluation had been assigned for pseudofolliculitis. The AOJ then concluded that entitlement to an initial compensable rating for skin disorder to include eczema and dermatitis is denied. Upon review of the file, the Board cannot discern what determinations the AOJ made with respect to the remanded issue of entitlement to service connection for skin disorder, to include eczema and dermatitis. No rating decision addressing the grant of service connection for skin disorder to include eczema and dermatitis preceded the January 2021 supplemental statement of the case. Additionally, the supplemental statement of the case addressed a different issue not on appeal, characterized as entitlement to an initial compensable disability rating for skin disorder to include eczema and dermatitis. However, addressing this claim in the first instance in a supplemental statement of the case was in direct contravention of 38 C.F.R. § 19.31 (a), which provides that "in no case will a supplemental statement of the case be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the statement of the case." Therefore, the Board is remanding this claim for the AOJ to issue a rating decision addressing the claim of service-connection for skin disorder other than pseudofolliculitis barbae, to include eczema and dermatitis, or to prepare a memorandum explaining why the claim need not be addressed. If the Board is in error, it apologizes. The matters are REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records from the Hampton Vista electronic records system for the period since February 2021; and all such relevant records from any other sufficiently identified VA facility. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an opinion from an appropriate clinician to determine the nature and etiology of any current sleep disorder. If an examination is deemed necessary, one should be conducted, to include via telehealth if warranted. The record and a copy of this Remand must be made available to the clinician. The clinician must note in the examination report that the record and the Remand have been reviewed. The clinician should answer the following question: Is it at least as likely as not (at least a 50 percent probability) that any sleep disorder experienced by the Veteran since approximately January 2013 had its onset during active service or is otherwise related to military service? The clinician must provide a complete rationale for any opinion set forth. In addressing this matter, the clinician must specifically address the pertinent evidence in the service treatment records, post service medical records and examinations, as well as the lay evidence provided by the Veteran. (CONTINUED ON NEXT PAGE) 3. Adjudicate the claim of service connection for skin disorder other than pseudofolliculitis barbae, to include eczema and dermatitis. If the AOJ determines that adjudication is not required, prepare a memorandum addressing why the claim need not be addressed. Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.