Citation Nr: 21032040 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 12-27 745 DATE: May 25, 2021 REMANDED Entitlement to service connection for a rash on the face, arms, hands, and chest, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117, is remanded. Entitlement to service connection for painful joints of the shoulders, hips, and knees, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1988 to October 1992, including in the Southwest Asia theater of operations during the Persian Gulf War. In August 2014, in support of these claims, the Veteran testified at a hearing before a Veterans Law Judge of the Board. A transcript of the proceeding is of record. Most recently, in September 2020, the Board remand these claims back to the local Regional Office (RO) to obtain supplemental VA medical opinions concerning the etiology of the Veteran's rash and painful joint conditions especially in terms of their posited relationship or correlation with his military service. Regarding the alleged rash on the Veteran's face, arms, hands, and chest, a supplemental medical nexus opinion was obtained concerning this claim in February 2021. The VA examiner opined that the Veteran's rash condition is less likely than not related to his service because there is no documented evidence of a currently diagnosed skin condition. However, as was noted in the September 2020 Board remand, the Veteran has received diagnoses of sebaceous hyperplasia, seborrheic keratosis, actinic keratosis, chronic dermatitis, and lesions well within the period on appeal based on his August 2010 claim for these conditions. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). See also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McLain on a recent diagnosis even predating the filing of a claim). Courts have recognized how skin rashes by their very or inherent nature, wax and wane, therefore are sometimes more apparent than at others. See, e.g., Ardison v. Brown, 6 Vet. App. 405, 408 (1994) (requiring that VA examine a Veteran during an "active stage" of the disease, when the skin condition at issue is cyclical in manifestation, in other words waxes and wanes, meaning it should be evaluated during an eruption or exacerbation of it as opposed to when dormant). Consequently, the Board finds the February 2021 VA medical opinion regarding this claim was based on an inaccurate factual premise; therefore, additional medical comment is needed. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (finding that a physician's opinion based on an inaccurate factual premise is of little probative value). As for the remaining claim concerning the Veteran's painful joints of the shoulders, hips, and knees, the February 2021 VA examiner opined that the Veteran's conditions are less likely than not related to his service because there was no evidence of chronicity of care and symptoms are subjective. Thus, this examiner's rationale for this unfavorable opinion relied exclusively on the absence of diagnoses, treatment, or symptoms in the Veteran's service treatment records (STRs) as reason for disassociating this claimed condition from his service. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the STRs to provide a negative opinion). Moreover, according to 38 C.F.R. § 3.303(b), the legal standard is not continuity of care, instead, continuity of symptomatology. It is continuous symptoms, not continuous complaints or treatment for them (i.e., care), which this VA regulation requires. See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). The Board therefore also finds the February 2021 medical opinion inadequate because the examiner impermissibly equated "chronicity of care" with "continuity of symptoms", and only the latter is required by 38C.F.R. §3.303(b). See Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson, 2 Vet. App. at 19. As such, supplemental medical comment addressing these deficiencies is needed. Accordingly, these claims again are REMANDED for the following still additional development and consideration: 1. Contact the Veteran and request authorization to obtain any outstanding records pertinent to his claims, following proper procedure and protocol (38 C.F.R. § 3.159(c)). Appropriately notify him and his representative if unable to obtain any records that he identifies with the required amount of information (38 C.F.R. § 3.159(e)). 2. After obtaining all additional treatment or other relevant records, obtain still more medical comment from a qualified clinician concerning the nature and etiology of the claimed rash on the Veteran's face, arms, hands, and chest, and regarding the painful joints in his shoulders, hips, and knees. A complete copy of this remand and all relevant medical and other records must be made available to the examiner for review. The examiner should review the pertinent evidence, including the Veteran's lay assertions regarding the history of these claimed disabilities. Based on review of the Veteran's medical records, his lay statements regarding the development and treatment of these claimed conditions, and all other relevant evidence in the claims file, including, again, a complete copy of this remand, the examiner should answer the following questions: (a.) Is it at least as likely as not (a 50 percent or greater probability) the rash on the Veteran's face, arms, hands, and chest began during his service from October 1988 to October 1992 or is otherwise related or attributable to a disease, an event, or an injury in service? *If, as the prior February 2021 VA examiner concluded, there is no current skin disorder (meaning at the time of providing this additional medical comment), this must be reconciled with the other evidence in the file showing diagnoses of sebaceous hyperplasia, seborrheic keratosis, actinic keratosis, and chronic dermatitis since August 2010, even if now resolved. Moreover, there should be consideration of whether this claimed skin disorder waxes and wanes so is sometimes more apparent that at others. (b.) Is it at least as likely as not (a 50 percent or greater probability) the painful joints in the Veteran's shoulders, hips, and knees began during his service from October 1988 to October 1992, or, if owing to arthritis, initially manifested within a year of his discharge, so by October 1993, or are otherwise related or attributable to a disease, an event, or an injury in service? (c.) If there is no diagnosed disability that the Veteran's rash and/or joint pain symptoms can be attributed to, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) the symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service. Regarding the latter, to this end, the examiner should address the January 2018 VA examiner's opinion regarding the skin rash and knee pain being undiagnosed illnesses. The mere absence of evidence of treatment for these claimed conditions in the Veteran's STRs cannot, alone, be sufficient rationale for disassociating them from his service. However, it is permissible to consider that as a factor, just not the only factor, in determining whether they are attributable to his service. If the examiner believes it is reasonable to have expectation of some documentation of these disabilities in the STRs, then explanation of why this expectation is reasonable must be provided. The examiner is also advised that the Veteran is competent to report his symptoms and history, and his reports must be specifically considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide reason for doing so. Rationale for the opinions therefore is essential, regardless of whether favorable or unfavorable to these claims, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Mukherjee 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.