Citation Nr: 1530463 Decision Date: 07/16/15 Archive Date: 07/24/15 DOCKET NO. 07-33 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for pseudofolliculitis barbae, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 2. Entitlement to service connection for skin rashes of the head and face, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 3. Entitlement to service connection for a respiratory disorder, including upper respiratory infections, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 4. Entitlement to service connection for chronic headaches, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 5. Entitlement to an initial compensable rating for a left ankle scar. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from April 1988 to June 1992, to include service in the Southwest Asia Theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama (hereinafter Agency of Original Jurisdiction (AOJ)), which granted service connection and assigned a 0 percent rating for a left ankle scar, effective August 29, 2005, and denied service connection for pseudofolliculitis barbae, skin rashes of the head and face, a respiratory disorder, and chronic headaches. In March 2011, these claims were remanded to afford the Veteran a hearing before the Board. In June 2011, the Veteran testified before the undersigned at a travel board hearing. A copy of the transcript has been associated with the claims file. In December 2011 and November 2013, the Board remanded these claims for additional development. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. There is also a paperless, electronic record in the Virtual VA system. Accordingly, any future consideration of this case should take into consideration the existence of these electronic records. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay, after close review of the record, further development is needed prior to disposition of the appeal. Regarding the respiratory disorder and chronic headaches, the Veteran underwent a January 2014 VA examination to determine the etiology of these disabilities. The VA examiner found that there was insufficient evidence to warrant or confirm a diagnosis of an acute or chronic respiratory condition or its residuals. He also found insufficient evidence to warrant or confirm a diagnosis of an acute or chronic headache condition or its residuals. He indicated that the Veteran did not meet the diagnostic criteria for tension, migraine, or cluster headaches as defined by the International Headache Society and published under ICHD-II. He explained that the Veteran's current subjective symptoms were the normal physiological response to daily life stressors and the Veteran's ability to deal with them. With respect to the Veteran's reports of taking Naproxen for his headaches, the examiner noted that this was not on his medical profile. In regards to the Veteran's assertions that he had experienced headaches for a number of years, the examiner indicated that there had been no continuance of care documented for these headache problems. In rendering his opinions, the January 2014 VA examiner had found insufficient evidence to warrant or confirm diagnoses of any respiratory disorder or chronic headache disability. However, the VA medical records show that the Veteran received treatment for allergies in December 2002; for chronic rhinitis in January 2003; for acute pharyngitis rule out strep in September 2010; and for upper respiratory infection in July 2011. VA medical records dated from December 2005 to November 2006 and from June 2010 to March 2014 also show that the Veteran received intermittent treatment for headaches. A March 2014 VA treatment record further documents that the Veteran had Naproxen as part of his medical profile. Therefore, it is unclear to the Board whether the VA examiner had considered the VA medical records reflecting treatment for various respiratory disorders and for headaches when making the determination that there was insufficient evidence to warrant diagnoses of a respiratory disorder and a headache disability. Given the above, the Board finds that another examination and opinion is necessary in order to fairly decide the merits of these claims. With respect to all of the claims on appeal, the Board had requested the VA examiner to provide opinion as to whether "any current findings related to pseudofolliculitis barbae, skin rashes of the head and face, and chronic headaches constitute signs of an undiagnosed illness related to the Veteran's Persian Gulf service." This opinion was not provided. With respect to the left ankle scar, the Veteran underwent a January 2012 VA examination to determine, in pertinent part, whether any current neurologic dysfunction of the left ankle is attributable to the in-service left ankle injury. On VA examination in January 2012, the VA examiner found that the Veteran had symptoms of diminished pin prick around the left medial malleolus and the medial foot immediately distal to the medial malleolus. She diagnosed the Veteran with left saphenous cutaneous nerve sensory dysfunction and opined that it was less likely than not incurred in or caused by service. She noted that after an August 8, 1989 complaint of tingling and numbness in the left foot immediately after the rope burn injury, the Veteran made no further such complaints while in service. An August 31, 1989 rope burn follow-up note stated that the Veteran was neurovascularly intact. A June 1992 separation examination noted a left lower leg with rope burn with avulsed skin in August 1989, no sequelae, not considered disabling; and a circular scar above the left ankle, not considered disabling. While the examiner found neurological symptoms around the left ankle (medial malleolus), it remains unclear to the Board why the examiner attributed these left ankle neurological symptoms to sensory dysfunction located in the saphenous cutaneous nerve. As determinations of the Board may not be based on the Board's medical judgment, see Colvin v. Derwinski, 1 Vet. App. 171 (1991), a clarification of the January 2012 VA examiner's medical opinion is necessary on remand. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for his respiratory disorder, chronic headaches, and left ankle scar since March 2014. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Schedule the Veteran for an appropriate VA examination with an examiner who has not previously examined him to determine the nature, extent and etiology of any pseudofolliculitis barbae, skin rashes of the head and face, and chronic headaches conditions that may be present. The claims file must be made available to the examiner. Following a review of the relevant medical evidence in the claims file, the medical history, the clinical evaluation, and any tests that are deemed necessary, the examiner is asked to opine whether: (a) it is at least as likely as not (50 percent or more likelihood) that any current pseudofolliculitis barbae, skin rashes of the head and face, and chronic headaches had its onset in service or is/are causally related to service; or (b) any current findings related to pseudofolliculitis barbae, skin rashes of the head and face, and chronic headaches constitute signs of an undiagnosed illness related to the Veteran's Persian Gulf service. The examiner should consider the Veteran's lay statements with regard to onset and continuity of symptomatology of his disability. In rendering the opinion, the examiner should consider post-service VA medical records from December 2005 to November 2006 and from June 2010 to March 2014 showing intermittent treatment for headaches, as well as a March 2014 VA treatment record indicating that Naproxen was part of the Veteran's medical profile. The examiner should also provide a rationale for the conclusions reached. If the examiner believes that an opinion cannot be provided without resorting to speculation, then he/she must provide a detailed medical explanation as to why this is so. 3. Schedule the Veteran for an appropriate VA examination with an examiner who has not previously examined him to determine the nature, extent and etiology of any respiratory disorder that may be present. The claims file must be made available to the examiner. Following a review of the relevant medical evidence in the claims file, the medical history, the clinical evaluation, and any tests that are deemed necessary, the examiner is asked to opine whether: (a) it is at least as likely as not (50 percent or more likelihood) that any current respiratory disorder had its onset in service or is causally related to service, to include treatment for a viral syndrome in August 1989, treatment for mild upper respiratory infection in November 1989, and treatment for a cold in April 1991?; or (b) any current findings related to a respiratory disorder constitute signs of an undiagnosed illness related to the Veteran's Persian Gulf service. The examiner should consider the Veteran's lay statements with regard to onset and continuity of symptomatology of his disability. In rendering the opinion, the examiner should consider post-service VA medical records showing treatment for allergies in December 2002; for chronic rhinitis in January 2003; for acute pharyngitis rule out strep in September 2010; and for upper respiratory infection in July 2011. The examiner should also provide a rationale for the conclusions reached. If the examiner believes that an opinion cannot be provided without resorting to speculation, then he/she must provide a detailed medical explanation as to why this is so. 4. Schedule the Veteran for an appropriate VA examination with an examiner who has not previously examined him. The examiner should review the claims file, including the service treatment records pertaining to the left ankle injury and treatment and the September 2007 report by a private examiner. In light of the January 2012 examiner's findings of diminished pin prick around the left medial malleolus and the medial foot immediately distal to the medial malleolus, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left ankle diminished pin prick is attributable to his in-service left ankle injury. The examiner should consider the Veteran's lay statements with regard to onset and continuity of symptomatology of his disability. The examiner should also provide a rationale for the conclusions reached. Specifically, the examiner must explain the validity of the current diagnosis of saphenous cutaneous nerve and whether such diagnosis could be medically attributable to the service-connected injury. If the examiner believes that an opinion cannot be provided without resorting to speculation, then he/she must provide a detailed medical explanation as to why this is so. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. If the previous examiner is no longer available, then the requested opinion with rationale should be rendered by another qualified examiner. 5. After completing the requested actions, and any additional notification and/or development warranted by the record, the AOJ should readjudicate the remanded claims in light of all pertinent evidence and legal authority and addressing all relevant theories of entitlement, including service connection as a qualifying chronic disability under 38 C.F.R. § 3.317. If any benefit sought on appeal remains denied, the AOJ should furnish to the Veteran and his representative, if any, an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations, and affords the appropriate time period to respond. The Veteran has the right to submit additional evidence and argument on the 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).