Citation Nr: 22005604 Decision Date: 02/02/22 Archive Date: 02/02/22 DOCKET NO. 15-00 717A DATE: February 2, 2022 REMANDED Entitlement to service connection for a respiratory disability is remanded. Entitlement to service connection for a skin disability is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1966 to February 1970. This matter came before the Board of Veterans Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A July 2019 Board decision reopened the claims of entitlement to service connection for a respiratory disability, skin disability, and soft-tissue sarcoma and remanded them for further development. A February 2021 Board decision denied service connection for soft-tissue sarcoma and remanded the other issues on appeal for further development. 1. Entitlement to service connection for a respiratory disability In compliance with the February 2021 Board decision, the Veteran was provided with a new VA respiratory examination in May 2021. The VA examiner diagnosed the Veteran with chronic obstructive pulmonary disease (COPD), noting the date of diagnosis as November 2002. She determined that this disability was less likely than not related to the Veteran's service, to include his exposure to toxic herbicides while stationed in the Republic of Vietnam. The Board finds that this opinion is inadequate as it applied the incorrect legal standard. The statement that there is no "direct correlation" between herbicide exposure contributing or causing COPD appears to require something akin to medical certainty to show a nexus between herbicides and COPD. The Federal Circuit has held that there is a difference between the "as likely as not" adjudication standard and a determination that something is medically or scientifically certain. See Hodges v. Sec'y of Dep't of Health and Human Servs., 9 F. 3d 958, 965 (Fed. Cir. 1993) (Newman, J. dissenting); Jones v. Shinseki, 23 Vet. App. 382, 388 n.1 (2016). As the opinion appears to apply an evidentiary standard akin to medical certainty rather than the "as likely as not" standard applicable under VA law and regulation, it is inadequate. Remand is required to obtain an adequate medical opinion. The Board also notes that the May 2021 VA examiner supported her opinion with the finding that there was no diagnosis, treatment, or related symptomology in the service treatment records. However, it is unclear to what records she is referring, as the service treatment records were lost during the pendency of the appeal. The opinion is therefore inadequate as its basis is unclear. On remand, the examiner is should consider all the evidence of record, to include the Veteran's statements and symptomology, when rendering an opinion. 2. Entitlement to service connection for a skin disability In compliance with the February 2021 Board decision, the Veteran was provided with a new VA skin examination in May 2021. The VA examiner diagnosed the Veteran with hidradenitis suppurativa, noting the date of diagnosis as December 2019. The examiner determined that this disability was less likely than not related to the Veteran's service, to include his exposure to toxic herbicides while stationed in the Republic of Vietnam. The examiner again supported her finding with the conclusion that there is no "direct correlation" between herbicide exposure contributing or causing COPD. However, there is no discussion as to why the link between COPD and herbicides is relevant to the examiner's finding regarding a skin disability. Even if it were a simple copy and paste error with the wrong disability inserted, the finding would still be inadequate as it would appear to apply the incorrect evidentiary standard of medical certainty, rather than utilizing the correct "as likely as not" adjudication standard. Id. In addition, the examiner again noted the absence of a diagnosis or treatment for hidradenitis suppurativa or related condition in service, which, as noted above, is unclear as such records were unavailable for review. Remand is required to obtain an adequate and clear medical opinion. The Board also notes that the May 2021 VA examiner found a resolved condition of atopic dermatitis. She did not provide its history, nor did she discuss its relation to service or to the currently diagnosed hidradenitis suppurativa. A current disability includes anything during the period on appeal, even if it resolved before the end of the period. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Both diagnoses involve the same body system, and therefore may reasonably be considered together. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). A remand for an opinion regarding the diagnoses of, etiologies of, and relationships between all skin disabilities is required to properly assess their relation to service. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, with a different provider than the one who conducted the May 2021 VA examination, to determine the etiology of any current respiratory disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current respiratory disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 2. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current skin disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current skin disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 3. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Bock 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.