Citation Nr: 22016148 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 10-15 310 DATE: March 21, 2022 REMANDED Entitlement to service connection for a skin disability (other than tinea pedis) is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army on active duty from September 1967 to September 1969. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2009 rating decision by the Veterans Benefits Administration (VBA). The Board remanded this matter to VBA in April 2014, April 2016, August 2017, and January 2019 for additional evidentiary development including obtaining adequate medical opinions on the etiology of the Veteran's skin disabilities (other than tinea pedis, which the Board found was service connected in August 2017). The Board requested opinions addressing the extent to which the Veteran's skin disabilities were related to the Veteran's military service, to include as secondary to the Veteran's service-connected disabilities (e.g. diabetes mellitus). While VBA obtained additional medical opinions in August 2021, the Veteran's representative requests that the Board remand this matter for additional opinions as the August 2021 opinions have numerous deficiencies. See March 2022 Appellate Brief Presentation. The Veteran's representative cites medical literature in support of a link between skin lesions and components of herbicides, and the representative notes the August 2021 VA examiner did not cite supporting medical literature for his negative opinions. While the August 2021 nexus opinions were provided by a dermatologist, the function assessment and diagnoses were provided by a family practitioner. See November 2020 Skin Diseases Disability Benefits Questionnaire. The representative takes issue with the fact that examiner that provided the diagnosis was not a dermatologist and asserts that VBA did not substantially comply with the Board's remand directives to obtain opinions including a diagnosis from a dermatologist. See Stegall v. West, 11 Vet. App. 268 (1998). See also August 2017 Board remand order (citing a June 2017 advisory opinion indicating a dermatologist should provide the diagnosis). The representative also notes that the opinion relies heavily on a "temporal gap" from the time of service to the date of the Veteran's diagnoses without adequately discussing the risk factors for the Veteran's skin disabilities and identifying the etiology. The Board expressed similar concerns about previous VA examinations in its remand orders. In addition to the representative's concerns about the examiner's opinion on whether the Veteran's skin disabilities were caused by the Veteran's herbicide exposure, the representative also identified several deficiencies regarding the opinions on secondary service connection. The representative notes that the August 2021 negative opinion on causation indicates that the Veteran's skin abscesses were diagnosed in 2008 and may have be exacerbated by having diabetes concurrently while also finding there is no evidence the Veteran had poor and uncontrolled diabetes at the time of the diagnosis. The Veteran's representative asserts there is an overlap with diagnoses of diabetes and the skin disorder during the period on appeal. The representative notes the VA examiner's negative opinion on aggravation did not provide adequate rationale in support of a finding that the Veteran's diabetes did not aggravate his skin disabilities at any point during the period on appeal. The Board also finds that VA should obtain a copy of the National Academies of Sciences, Engineering & Medicine's (NAS) report, Veterans and Agent Orange: Update 2014 (10th Biennial Update 2016) (NAS Update 2014) and associate it with the claims file as the Board finds VA has constructive possession of this document. See Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021) (noting that constructive possession requires that the evidence be relevant and reasonably connected to the claim). The NAS report discusses the probability that herbicide exposure causes skin disabilities, which the Board finds is relevant and reasonably connected to the Veteran's claim. See id. On remand, VBA should obtain additional medical opinions addressing the NAS report, the medical literature cited by the Veteran's representative, and the concerns outlined in the representative's March 2022 brief and the Board's prior remand orders. Finally, the previous examiners were asked to opine if it was "at least as likely as not (a 50 percent or greater probability)" that the Veteran's disabilities were connected to service. This language found in the previous remands entitled the Veteran to the benefit of the doubt if the evidence was in equipoise. Following direction from the United States Court of Appeals for the Federal Circuit in Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021), the proper standard of review is whether the factors are in an "approximate balance." Lynch held that the Veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance - i.e. nearly equal - and does not require the evidence to be in exact equipoise. See id. VBA should ensure the examiner is aware of the correct standard under Lynch. The Board REMANDS this matter for the following actions: 1. VBA should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. VBA should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. VBA should obtain a copy of the National Academies of Sciences, Engineering & Medicine's (NAS) report, Veterans and Agent Orange: Update 2014 (10th Biennial Update 2016) (NAS Update 2014) and associate it with the claims file. 3. After associating all outstanding relevant records with the Veteran's claims file, VBA should opinion an additional VA examination of the etiology of the Veteran's skin disabilities (other than tinea pedis). VBA should attempt to obtain an opinion from a dermatologist. If a dermatologist is not available, VBA should ensure the examiner demonstrates competence to diagnose and opine on the etiology of the skin disabilities. VBA should provide the examiner with a complete copy of the claims file, to include this remand order. VBA should ensure the examiner's opinion addresses the following concerns: (a.) The VA skin examiner should identify all skin disabilities (other than tinea pedis) that the Veteran has experienced during the period on appeal based on a review of the claims file and an examination of the Veteran (if the examiner determines an examination is necessary). If the examiner disagrees with prior diagnoses in the record, the examiner should state the basis for disagreement with citation to supporting evidence. (b.) The examiner should opine whether it is at least as likely as not (at least an approximate balance of negative and positive evidence) that the Veteran's skin disabilities (other than tinea pedis) manifested or were otherwise caused by the Veteran's military service. The examiner should consider the medical literature cited in the March 2022 Appellate Brief and the NAS report in opining on the probability that the Veteran's herbicide exposure (e.g. Agents Orange, White, Blue, and Orange II) caused his skin disabilities. The examiner should consider the Veteran's lay statements about the continuity of relevant symptoms over time. (c.) The examiner should whether it is at least as likely as not (at least an approximate balance of negative and positive evidence) that the Veteran's service-connected disabilities (e.g. diabetes mellitus) caused or aggravated the Veteran's skin disabilities (other than tinea pedis). Temporary aggravation may suffice for secondary service connection. See Ward v. Wilkie, 31 Vet. App. 233 (2019). (d.) If the examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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.