Citation Nr: 22012811 Decision Date: 03/07/22 Archive Date: 03/07/22 DOCKET NO. 14-29 333 DATE: March 7, 2022 REMANDED Entitlement to service connection for a skin disorder is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Marine Corps from May 1963 to May 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in October 2017. This matter was most recently before the Board in October 2021, when it was remanded back to the Agency of Original Jurisdiction (AOJ) for additional development. The matter is now returned to the Board for further appellate review. Entitlement to service connection for a skin disorder is remanded. Although regretful of further delay, the Board finds that an additional remand is necessary for development. The October 2021 directives requested that the examiner address whether the skin conditions recorded in the Veteran's service treatment records are related to his current skin condition. The examiner was instructed to discuss the nature and etiology of any current skin disorder (to include diagnoses of dermatographism, pressure urticaria, xerosis, and eczematous), opine whether they are related to any of the skin conditions noted in the Veteran's service treatment records (to include diagnoses of calluses, plantar warts, cellulitis, and sebaceous cyst). The examiner was also advised to discuss the Veteran's testimony that his skin condition was recurrent, and, in the event that the examiner found that the Veteran did not have an eczematous rash at any point during this appeal, to explain how the examiner came to the conclusion that the eczematous diagnosis was incorrect. However, for the reasons outlined below, the Board finds that the subsequently obtained November 2021 VA medical opinion and its December 2021 addendum are inadequate for adjudicative purposes because they did not comply with the October 2021 remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board reiterates that the question posed to the examiner in the October 2021 remand is not whether the Veteran had the same diagnoses in service that he has presently, but rather whether they are related. This directive is intended to allow examiners to give a broader evaluation of a Veteran's disability incurrence which may include considerations such as, but not limited to, similar etiologies between conditions, or the impact of one condition predisposing the Veteran to the later development of another condition. An opinion which only assesses whether a Veteran's current conditions are exactly the same as what is shown in their records is incomplete. Turning to the medical report at hand, the initial November 2021 medical opinion relies heavily on the fact that that there is no indication of the Veteran's claimed current eczematous rash in his service treatment records. Conversely, the December 2021 addendum relies heavily on the fact that there is no current indication of the plantar warts, plantar callosities, and cellulitis that are in his service treatment record. The addendum also stated that without "documented proof" that the Veteran had eczematous rashes in service, the examiner could not opine that the Veteran's current eczematous rashes are actually related to service. The examiner further remarked that the Veteran does not presently have a skin condition of any kind, so the absence of a skin condition precludes the examiner from finding a nexus in itself. For these reasons, the examiner concluded that the Veteran's claim must be denied. The examiner's report is inadequate for several reasons. First, the examiner's reports appear to rest almost entirely on the absence of identical skin diagnoses between the Veteran's service and the present. The Board notes that the absence of contemporaneous records alone does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim). Next, the examiner improperly concluded that the inquiry is moot because the Veteran does not have a present skin condition at all; this finding is inconsistent with the evidence of record. Veteran has reported numerous times throughout the appeal period that the skin condition on his legs is recurrent. The Veteran also testified during his October 2017 Board hearing that he believes his skin condition worsens with warmer weather, which may explain why he did not present with it in the winter. Therefore, the fact that his skin did not physically appear to be afflicted at the time of his November 2021 examination does not beget the conclusion that he does not presently have a skin condition that is recurrent in character. As aforementioned, the examiner was instructed to address the claimed recurrency of the skin condition and to explain the basis for any finding that the Veteran does not currently have an eczematous rash; however, neither of these analyses were done. If the examiner did not find the Veteran's claims of recurrence credible, or if upon examination found that a skin condition had definitively resolved or had not, in fact, been present at any point during the appeal, the examiner is obligated to provide an explanation for that conclusion. Simply dismissing the claim on such a basis is insufficient. Finally and most significantly the examiner's reports do not adequately address the remand directives. As noted above, the directives requested that the examiner assess what, if any, relationship exists between the Veteran's current skin conditions and the skin conditions reflected during his service. The extent of the analysis proffered was that eczematous rashes can have several etiologies and because the eczematous rashes were not reflected in the Veteran's service treatment records, the examiner could not form an opinion. There was no discussion of the critical relationship component of the inquiry, such as whether eczematous rashes could have developed from the numerous skin conditions documented during service, or whether the in-service skin conditions could have impacted the skin in a manner that predisposed him to or increased the likelihood of him developing eczematous rashes later. The examiner also implicitly concludes that the etiology of the Veteran's eczematous rash is different from the etiology of his in-service skin conditions, but the examiner does not provide an etiological opinion for any of the identified conditions. The examiner's assessment of a relationship between conditions must go beyond merely reiterating the absence of identical diagnoses from service to the present. Additionally, upon review of the Veteran's claims file, the Board found that there are additional skin conditions in the Veteran's medical history that have yet to be considered in his claim. In May 1967, the Veteran was treated for athlete's foot bilaterally. Later, in June 1997, the Veteran was treated for a Candida condition in the genital region. The spring and summer diagnoses may correlate with the Veteran's claims that his skin condition is most afflicting in warm weather. Therefore, the Board finds that the Veteran's history of fungal skin conditions must also be addressed in the VA medical opinion. For the foregoing reasons, the Board finds that a new VA medical opinion is necessary in this case. The matter is REMANDED for the following action: Obtain a new VA medical opinion from a qualified medical clinician who has not previously examiner the Veteran's claim. The entire claims file, to include a copy this Board decision, should be made available to and reviewed by the selected clinician. If deemed necessary by the selected clinician, the Veteran should be scheduled for a new VA examination. After reviewing the Veteran's claims file, and examining the Veteran if found necessary, the examiner must provide a reasoned medical opinion addressing whether the Veteran's current skin conditions (to include diagnoses of dermatographism, pressure urticaria, xerosis, and eczematous rash) are related to an in-service injury, event, or disease, including skin conditions noted in the Veteran's service treatment records (to include diagnoses of plantar calluses, plantar warts, cellulitis, sebaceous cyst, and athlete's foot). The examiner's opinion must include the following: 1. A discussion of what, if any, relationship exists between the Veteran's current skin conditions and the skin conditions reflected in the Veteran's service treatment records. This analysis should include considerations such as, but not limited to: shared etiologies between skin conditions; progression of conditions from one diagnosis to another; increased likelihood of or predisposition to developing one skin condition after previously having had another; and changes in the condition of the skin. The examiner is advised that the relevant inquiry is whether the Veteran's current skin conditions are related to the skin conditions documented in service, not whether they are the same. The examiner may not deny a finding of nexus only on the basis that the Veteran's current skin diagnoses are not reflected in his service treatment records. Any negative opinion premised on the absence of service treatment records showing identical diagnoses between service and the present will be deemed inadequate for adjudicative purposes. 2. The examiner's opinion must acknowledge and discuss the significance of the Veteran's testimony throughout the appeal regarding his skin condition. This includes but is not limited to statements made about the recurrent nature of his skin conditions both during and after service, as well as the worsening of his skin condition in warmer weather. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examiner may not dismiss the Veteran's reports regarding his skin conditions solely because they are not documented in contemporaneous medical records. 3. If the examiner determines that the Veteran did not have a skin condition at any point during the appeal, they must explain the basis for their conclusion that the diagnoses reflected in the record were made in error or have definitively resolved. The examiner may not dismiss the Veteran's claim based on the absence of a skin condition without rationale based on the facts of this case explaining how they came to that determination. (Continued on the next page) All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Narnor, Harriyah 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.