Citation Nr: 22045331 Decision Date: 08/10/22 Archive Date: 08/10/22 DOCKET NO. 99-10 548 DATE: August 10, 2022 REMANDED Entitlement to service connection for a left shoulder disability, to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for a skin disorder, to include as due to an undiagnosed illness, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1979 to January 1980, and from January 1991 to April 1991, including service in the Southwest Asia Theater of Operations. The Veteran also had additional service in the Army National Guard. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 1997 Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for a skin disorder and left shoulder disorder. In July 1999 the Veteran testified at a travel Board hearing at the RO before a Veterans Law Judge (VLJ). A transcript of his testimony is associated with the record. In June 2013 the Board informed the Veteran that the July 1999 VLJ was no longer employed at the Board (due to retirement) and advised him that he had a right to a new hearing before another VLJ. See 8 U.S.C. § 7107 (c) (providing that the member or members designated to conduct a hearing shall participate in making the final determination of a claim on appeal). In a July 2013 letter, the Veteran indicated that he did not desire an additional Board hearing. Historically, in a May 2018 decision, the Board denied entitlement to service connection for a disability of the left proximal humerus and a skin disorder. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). While his claims were pending at the Court, the Veteran's representative and the VA Office of General Counsel filed a Joint Motion requesting that the Court vacate the Board's May 2018 decision as to these issues and remand the case to the Board for further development and readjudication. In a September 2019 Order, the Court granted the Joint Motion. The case was returned to the Board. When this case was most recently before the Board in May 2020, it was decided in part and remanded in part for additional evidentiary development. The case has since been returned to the Board for further appellate action. With respect to the Veteran's service connection claim for a left shoulder disorder to include as due to an undiagnosed illness, the September 2019 Joint Motion noted that the Board determined that there was no shoulder disorder based on a November 2016 VA examination report that found no impairment. The Joint Motion explained that the November 2016 VA examination pertained to the Veteran's elbow and not his shoulder. The Joint Motion concluded that VA erred by failing to afford an adequate examination and a remand was warranted to afford the Veteran with an examination that adequately assessed the claimed shoulder disability. The Board noted in the May 2020 remand that during the appeal period the Veteran was diagnosed with chronic supraspinatus tendinitis of the bilateral shoulders in an October 1997 VA examination and January 2007 VA examination. A November 2011 VA examination showed a diagnosis of degenerative joint disease based on X-ray and chronic impingement syndrome. The Veteran's service treatment records also documented treatment for upper back pain resulting in muscle spasms during annual training while unloading unit equipment in December 1986; the Veteran was diagnosed with severe left trapezius muscle spasms. A December 1986 private treatment record also showed complaints of pain in the back of his neck and his left shoulder. He was diagnosed with left trapezius muscle spasm. The Board found that the Veteran should be provided with a VA examination that addressed whether any current diagnoses of a left shoulder disability were related to the injury to the left trapezius muscle during active duty for training in December 1986. In response to the Board's remand, the RO attempted to schedule the Veteran for an examination. However, it was noted that the Veteran reported that he is unable to wear a mask and therefore cannot attend a VA examination in person. As such, the Board finds that on remand, if possible, attempts should be made to schedule the Veteran for a virtual, telehealth examination. Regarding the Veteran's service connection claim for a skin disorder, the September 2019 Joint Motion noted that the VA examiner determined that the diagnosis of seborrheic keratoses frequently had an age component to the development of such condition, but an exact etiology was unknown. 38 C.F.R. § 3.317 (a)(2)(ii) contemplates conditions that lack a "conclusive pathophysiology or etiology" as among the type of medically unexplained illnesses potentially falling within the presumption described by that regulation. The Court found that the Board should have addressed whether the Veteran's conditions, taken together, may constitute a medically unexplained illness fitting within the contours of section 3.317. The Board previously noted that during the appeal period the Veteran was diagnosed with seborrheic keratosis, dermatitis/other eczema, tinea unguium, and cellulitis. The December 2016 VA examiner only addressed the issue of whether the Veteran's seborrheic keratosis was related to active military service. Thereafter, the Board obtained a VHA medical where the dermatologist provided a negative medical opinion with respect to whether the Veteran's seborrheic keratosis, dermatitis/other eczema, tinea unguium, and cellulitis were at least as likely as not incurred in or caused by active service to include exposure to environmental hazards in Southwest Asia. However, the opinion was based on inaccurate facts. In this regard, the dermatologist noted that there were no complaints, diagnosis, or treatment of skin conditions during active military service. However, the Veteran's service treatment records documented that he sought treatment on two occasions in January 1980 for a skin rash, diagnosed as T. versicolor. Furthermore, the dermatologist's rationale only addressed whether seborrheic keratoses was related to exposure to environmental hazards of Southwest Asia. Thus, the Board found that a remand was necessary to obtain another VA medical opinion. In response to the Board's remand, a VA-contracted opinion was obtained in October 2020 in which the examiner's opinions focused on whether the claimed skin disorders were diagnosed in service, whether the claimed skin disorders were related to the rash noted in service in 1980, and/or whether the 1980 rash predisposed the Veteran to later develop skin disorders. On remand, an examiner is again asked to address the questions outlined in the below directives. The matters are REMANDED for the following action: 1. Schedule the Veteran for a virtual VA examination via telehealth to determine the current nature and etiology of any left shoulder disability. If the examiner determines that such an assessment cannot be made via telehealth, schedule the Veteran for a VA in-person examination, and contact him to inform him of any Covid-related requirements for attending the examination, and determine whether any accommodations can be made for the Veteran if he is found to be medically incapable of wearing a mask. The contents of the electronic claims file to include a complete copy of this REMAND must be made available to the examiner, and the examination report should reflect full consideration of the Veteran's documented medical history and lay assertions. For each left shoulder disability diagnosed during the examination or diagnosed in the medical records at any point pertinent to the current claims (even if now asymptomatic or resolved), the examiner is asked to provide an opinion as to whether it is at least as likely as not that the disability had its onset during service or is otherwise at least in part related to active military service, to include any documented injury therein (particularly the December 1986 injury to the left trapezius muscle). In rendering the requested opinion, the examiner must consider and discuss all in and post-service medical and other objective evidence of record, to include the service treatment records documenting in-service treatment for injury to left proximal humerus in August 1979, injury to the left trapezius muscle in December 1986, and March 1991 motor vehicle accident. The examiner must consider and discuss all lay assertions, to include any assertions as to in-service events, and as to the nature, onset, and continuity of symptoms. Notably, the absence of documented evidence of associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. In this regard, 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 opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. Complete, clearly stated rationale for the conclusion reached, must be provided. 2. Obtain an addendum medical opinion from a dermatologist or other appropriate medical specialist as to the current nature and etiology of the claimed skin disorder. Only provide an examination if one is deemed necessary by the medical specialist. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated medical specialist, and the medical report should reflect full consideration of the Veteran's documented medical history and lay assertions. (a.) For each skin disorder diagnosed currently, or at any point pertinent to the current claim (even if now asymptomatic or resolved) to include seborrheic keratosis, dermatitis/other eczema, tinea unguium, rash, and cellulitis, the examiner should render an opinion as to whether it is at least as likely as not that the skin disorder had its onset during service or is otherwise related to active military service. (b.) If the medical specialist concludes that any symptoms of a skin disorder are not attributable to a known clinical diagnosis, any diagnosed skin disability to include seborrheic keratosis, dermatitis/other eczema, tinea unguium, rash, and/or cellulitis has an unknown etiology, then provide an opinion as to whether it is at least as likely as not that it originated during the Veteran's Gulf War service or was caused by or related to exposure to environmental hazards of Southwest Asia. (c.) The medical specialist should also address whether the Veteran's skin conditions that do not have a known diagnosis, conclusive pathophysiology, or known etiology taken together with the Veteran's left shoulder difficulties or any other symptoms, at least as likely as not constitute a medically unexplained chronic multi symptom illness. In rendering each requested opinion, the medical specialist must consider and discuss all in and post-service medical and other objective evidence of record. The medical specialist also must consider and discuss all lay assertions, to include any assertions as to in-service events, and as to the nature, onset, and continuity of symptoms. Notably, the absence of documented evidence of a specific disability or associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. In this regard, the medical specialist is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating opinions. If lay assertions in any regard are discounted, the medical specialist should clearly so state, and explain why. Complete, clearly stated rationale for the conclusions reached must be provided.Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). JOHN G. SETTER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.