Citation Nr: 22010933 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 15-06 263 DATE: February 24, 2022 REMANDED Entitlement to service connection for a skin condition, to include chloracne or acneiform as secondary to herbicide exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1966 to June 1970, with service in the Republic of Vietnam. The Veteran is presumed to have been exposed to herbicides during his service in Vietnam. This matter again comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). At the onset, based on the medical evidence of record, the Board finds it appropriate to recharacterize the Veteran's claim as follows: from chloracne or other acneiform disease to a skin condition, to include chloracne or acneiform, as secondary to herbicide exposure. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (what constitutes a claim cannot be limited by a lay veteran's assertion of his condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim). The Board previously remanded the issue in November 2018, March 2021, June 2021, and September 2021; with the September remand ordering a new examination and opinion regarding the nature and etiology of any diagnosed skin disorder. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board's remand order. Moreover, the Court held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Id. The Board finds that the AOJ did not substantially comply with the remand directives. In response to the September 2021 remand, the Veteran was afforded a VA examination in October 2021. The examiner diagnosed the Veteran with folliculitis; no etiology opinion was rendered as directed by the September 2021 remand. The examiner opined that it was less likely than not that the claimed condition of chloracne or another acneiform disease was incurred in the service or related to herbicide exposure since there was no signs or symptoms to support a diagnosis during the current clinical examination. The examiner failed to address: (1) June 2020 VA Treatment Records; (2) February 2012 Private Medical Records; (3) March 2017 VA treatment records reflecting no chloracne; and (4) August 2021 VA examiner's opinion, based on a review of the record, that the Veteran has acne, but does not have chloracne. See Stegall, 11 Vet. App. at 271. As such, a remand is necessary to properly adjudicate the Veteran's claim. Additionally, the Board notes that the Veteran's claims folder has not been reviewed by, nor has the Veteran been examined by a VA dermatologist. On remand, the Veteran must be afforded a new VA skin examination with a dermatologist to determine the nature and etiology of any skin condition, to include chloracne or another acneiform disease as secondary to herbicide exposure. The AOJ is advised that this case has been remanded by the Board multiple times (including the remand herein), with this remand caused by Stegall violations. Expeditious treatment and substantial compliance with remand directives are required. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate clinician, such as a dermatologist, if possible, to obtain an opinion regarding the nature and etiology of any diagnosed skin condition, as secondary to herbicide exposure. The entire claims file, and a copy of this REMAND, must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. Based on a review of the entire record, the examiner is asked to provide the following: a. Identify and diagnose the Veteran's skin condition, to include folliculitis, acne, and chloracne. b. For each skin condition diagnosed, state whether it is at least as likely as not (a 50 percent or greater probability) had its onset during active service or is etiologically related to his active duty service, to include the Veteran's presumed herbicide exposure. The examiner must address: (1) the June 2020 VA Treatment Records (2) February 2012 Private Medical Records; (3) March 2017 VA treatment records reflecting no chloracne; (4) August 2019 VA examination diagnosing the Veteran with chloracne; (5) August 2021 VA examiner's opinion, based on a review of the record, that the Veteran has acne, but does not have chloracne; (6) medical records reflecting treatment for actinic keratosis in various areas of the face, head, and neck; (7) medical records reflecting treatment for folliculitis of the left scalp, neck, left upper back, sternal chest, and shoulder; (7) a January 2011 private medical record noting an acneiform small nodule just below left axilla; and (8) medical records reflecting treatment for actinic keratosis of various areas of the face. The examination report should include a discussion of the Veteran's skin condition history and his reported symptoms. The examiner must be advised that the Veteran is competent to report symptoms and treatment, and that his reports, including his reports as to the onset and chronic nature of his symptoms, must be considered along with the other evidence of record in formulating the requested opinions. The Veteran's statements may not be discounted solely on the basis of the lack of confirmation in the medical records. (Continued on the next page) The examiner must provide any and all opinions as to etiology in the form of a probability. A complete rationale must be provided for all opinions. If the examiner is unable to provide an opinion without resorting to speculation, an explanation as to why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered should be provided. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Camille NeSmith, 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.