Citation Nr: A24054635 Decision Date: 09/10/24 Archive Date: 09/10/24 DOCKET NO. 220125-214013 DATE: September 10, 2024 REMANDED Entitlement to service connection for a skin disorder, to include pseudofolliculitis barbae (PFB), eczema and dermatitis, is remanded. Entitlement to service connection for low back injury is remanded. REASONS FOR REMAND The Veteran had active service from August 1972 to September 1976. The rating decision on appeal was issued in December 2021. In the January 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the December 2021 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim for entitlement to service connection for PFB, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims of (1) entitlement to service connection for a skin disorder, to include PFB, eczema and dermatitis, and (2) entitlement to service connection for low back injury, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. Entitlement to service connection for a skin disorder, to include PFB, eczema and dermatitis, is remanded. The Veteran has filed a claim for service connection for PFB (shaving bumps). Based on the evidence of record, the Board has re-characterized the Veteran's claim of entitlement to service connection for PFB more broadly as a claim for entitlement to service connection for a skin disorder, to include PFB, eczema and dermatitis. See Clemons v. Shinseki, 23?Vet. App.?1, 5 (2009). The issue of entitlement to service connection for a skin disorder, to include PFB, eczema and dermatitis, is remanded for two reasons. First, a remand is warranted to correct a pre-decisional duty to assist error, namely an inadequate VA examination. The Veteran was afforded a VA examination in October 2021, during which he reported that: the date of onset for his skin condition was unknown; his face condition started with shaving; and he was unsure of the details of his leg involvement. He also reported that his condition has stayed the same since onset. The VA examiner diagnosed dermatitis/eczema and indicated that the condition on the Veteran's lower face and neck worsens with shaving. The examiner opined that the Veteran did not have a current diagnosis of PFB and gave a negative nexus opinion for that condition. As a rationale, the examiner stated that the Veteran's July 1972 entrance examination indicated normal skin; that no evidence of an injury during service could be located in the file; and that the Veteran did not mention or complain of PFB or shaving bumps at his September 1976 discharge exam. In November 2021, the AOJ requested an addendum opinion to address a March 1976 service treatment record indicating PFB. In a November 2021 Addendum, the VA examiner gave a negative nexus opinion, reasoning that: the PFB in service was acute only; there was no evidence of chronicity of care; symptoms were subjective only; and that neither PFB nor shaving bumps was mentioned on the Veteran's discharge exam. The VA opinions regarding PFB are inadequate to the extent they are based on the absence of treatment records and conclusory statements that the Veteran's symptoms were subjective only. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Further, the VA examiner diagnosed dermatitis/eczema without providing a nexus opinion for this disorder. The lack of a nexus opinion for the Veteran's dermatitis/eczema renders the examination and opinion inadequate. See Robinson v. Peake, 21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (The Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record.). A remand for an adequate VA medical opinion is warranted. Second, a remand is also needed to fulfill a statutory duty. See 38 U.S.C. § 1168 and 38 C.F.R. § 20.802. On August 10, 2022, the Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act) was enacted. The PACT Act created a presumption of exposure to burn pit and other toxins (BPOT) and additional procedural rights for veterans with claimed toxic exposure risk activity (TERA). Section 303 of this law provides that, if a Veteran submits a claim for service connection with evidence of disability and evidence of participation in a TERA, then VA shall obtain a medical opinion as to whether it is at least as likely as not that there is a nexus between the disability and the toxic exposure risk activity. 38 U.S.C. § 1168. This includes consideration of total potential exposure through the veteran's military deployment and the synergistic, combined effect of all toxic exposure risk activities. An April 2023 TERA Memorandum indicates that the Veteran participated in a TERA: the Veteran had a military occupational specialty (MOS) of motor vehicle operator that "could have exposed [him] to hazards such as motor oil, break dust, gasoline, etc." The Board takes judicial notice of this TERA Memorandum. Although the TERA Memorandum was added to the claims file outside of the evidentiary window and associated with the record after issuance of the rating decision on appeal, the Board is accepting this Memorandum as a legal finding. In addition, the October 2021 VA examination provides competent evidence of dermatitis/eczema. Thus, the Veteran should be afforded a new examination and medical opinion pursuant to the PACT Act. The Board notes that while the record includes a December 2011 VA examination and negative nexus opinion for eczema and the more recent November 2021 VA examination and opinions addressing PFB, both examinations occurred prior to the enactment of the PACT Act and the opinion did not address the Veteran's potential TERA in service. Because the Board is unable to grant service connection for a skin disorder, to include PFB, eczema and dermatitis, at this time, and because the requirements to obtain a medical opinion compliant with 38 U.S.C. § 1168 are met, but such opinion has not yet been obtained, a remand is needed for VA to obtain one. 2. Entitlement to service connection for low back injury is remanded. Records received prior to the December 2021 rating decision on appeal indicate that relevant private treatment records are outstanding. Specifically, a December 2013 VA treatment record indicates that the Veteran's civilian medical provider, Dr. G, was treating his back pain. The record, however, does not include any of Dr. G's treatment records for the Veteran. Under the Appeals Modernization Act (AMA), the Board must remand to the AOJ to correct pre-decisional duty to assist errors (including failure to make reasonable efforts to obtain VA treatment records or relevant federal or private treatment records, failure to obtain a VA examination, or providing an inadequate VA examination or opinion). 38 C.F.R. § 20.802 (a). In this case, the AOJ did not make reasonable efforts to obtain private treatment records from Dr. G. A remand is warranted to cure this pre-decisional duty to assist error. The matter is REMANDED for the following action: 1. Schedule the Veteran for a TERA examination that complies with the PACT Act to determine the nature and etiology of the Veteran's skin disorder, to include PFB, eczema and dermatitis. For each diagnosed skin disorder, the examiner is to opine as to whether the skin disorder is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) related to the Veteran's service, to include in-service exposure to toxins due to his MOS of a motor vehicle operator. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The examiner must consider the total potential exposure through all applicable deployments; and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. The examiner should consider the Veteran's reported symptoms during and after service, to include a March 1976 service treatment record that indicates treatment for PFB; a June 2011 VA Form 21-4138, Statement in Support of Claim, in which the Veteran reports that while in basic training, he was exposed to gas in a gas chamber and that his skin has progressively gotten worse since then; a December 2011 Compensation and Pension Examination during which the Veteran reported onset and recurring flares of his skin condition and worsening conditions in the summer; and photographs of the Veteran's skin condition submitted in January 2012. 2. As the Veteran to complete a VA Form 21-4142 for Dr. G. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.T. 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.