Citation Nr: 22017033 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 15-33 176 DATE: March 23, 2022 REMANDED Entitlement to service connection for a skin disorder including tinea versicolor is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1990 to July 1995, March 1997 to March 2001, and July 2003 to July 2014 with service in Southwest Asia during the Persian Gulf War and the award of, among other things, a Combat Infantry Badge. The Veteran also had other service with a Reserve Component. In September 2018, the Board of Veterans' Appeal (Board), among other things, remanded the Veteran's claim of service connection for a skin disorder for further development. In September 2020, a Veterans' Law Judge not the undersigned issued a decision that denied the Veteran's claim of service connection for a skin disorder. The Veteran appealed the September 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2021 order, which incorporated the parties October 2021 Joint Motion for Remand (JMR), the Court vacated and remanded the Board decision. Entitlement to service connection for a skin disorder including tinea versicolor is remanded. The JMR vacated and remanded the Board decision because, in substance, the March 2015 VA examiner's negative etiology opinion it relied upon when adjudicating the claim was not adequate. The JMR reached this conclusion because it did "...not contain an adequate rationale explaining how the examiner concluded that Appellant's condition 'was not aggravated beyond its natural progression by military service,' or an 'in-service event, injury or illness.'" Therefore, the Board finds that a Remand is required to provide the Veteran with a new VA examination to obtain an adequate medical opinion. See 38 U.S.C. § 5103A(d); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In this regard, when obtaining the medical opinion and again adjudicating the claim the examiner and the regional office (RO) should be mindful of the fact that in all appeals, like the current appeal, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held in Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014) that VA needs to always consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. Also see ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). Similarly, when obtaining the medical opinion and again adjudicating the claim the examiner and the RO should be mindful of the fact that in all appeal, like the current appeal, where the Veteran served in combat as evidence by his Combat Infantry Badge, the Federal Circuit in Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012) held that not only is the combat injury presumed, but so is the disability due to the in-service combat injury. To establish service connection, however, there must be evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The JMR also vacated and remanded the Board decision because, in substance, the post-Remand development did not comply with the Remand because the RO did not make a new request for the Veteran's missing service treatment records. Therefore, the Board finds that a Remand is required to obtain and associate with the record any outstanding service treatment records as well as any outstanding VA and private treatment records. See 38 U.S.C. § 5103A(b); Forcier, supra. The appeal is REMANDED for the following actions: 1. In order to comply with the JMR and earlier Remand, the RO must make a new request for any missing service treatment records including any held by the Veteran's Reserve Component. Because these are Federal records, efforts to obtain them should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain them would be futile. If the records cannot be located or no such records exist, a Memorandum of Unavailability documenting all of VA's actions to obtain the records should be prepared and associated with the claims file and the Veteran should be notified in writing that the records cannot be found. 2. Associate with the claims file any outstanding VA treatment records. 3. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran or his representative should submit and new pertinent evidence the Board/VA does not have (if any). Any help with the above would be appreciated. 4. In order to comply with the JMR, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the claim of service connection for a skin disorder. The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: a. Provide diagnoses for all skin disorders. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that tinea versicolor was aggravated by either of the Veteran's three periods of active duty service. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any skin disorder had its onset directly during the Veteran's service or is otherwise related to any event or injury during service including his presumptive toxin exposure because of his service during the Persian Gulf War. d. If a nexus to his service cannot be established for any skin disorder, please provide an opinion as to whether the disability pattern is consistent with any of the following: (i) an undiagnosed illness, (ii) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (iii) a diagnosable chronic multisymptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis. e. If, after reviewing the claims file, the examiner determines' that the Veteran's disability pattern is consistent with either (iii) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion as to whether it is at least as likely as (i.e., at least equally probable) that the disability pattern or diagnosed disease is related to environmental exposures experienced by the Veteran during his service to include his service in the Southwest Asia theater of operations. In providing answers to the above questions the examiner should consider and discuss the service treatment records. In providing answers to the above question the examiner should consider and discuss the competent lay claims regarding observable symptomatology. In providing answers to the above question the examiner should not rely solely on negative evidence. In providing answers to the above question the examiner is advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In order to comply with the JMR, in answering all questions, please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.