Citation Nr: 1612450 Decision Date: 03/28/16 Archive Date: 04/07/16 DOCKET NO. 09-36 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a urinary disorder. 2. Entitlement to an initial rating in excess of 10 percent for pseudofolliculitis barbae (PFB). 3. Entitlement to an increased rating for tinea pedis and tinea versicolor, currently evaluated as 10 percent disabling. 4. Entitlement to a rating in excess of 50 percent for migraine headaches, to include consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). 5. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1973 to August 1977. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. By that rating action, the RO denied service connection for a urinary disorder. The RO also granted service connection for PFB; an initial noncompensable disability rating was assigned, effective April 25, 2008--the date VA received the Veteran's initial claim for compensation for this disability. Finally, the RO continued 10 percent and noncompensable ratings assigned to the service-connected migraine headaches and tinea pedis and tinea versicolor, respectively. The Veteran appealed this rating action to the Board. By a July 2009 rating decision, the RO increased the Veteran's disability rating assigned to the service-connected PFB from noncompensable to 10 percent, effective from April 25, 2008. Nevertheless, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue of entitlement to an initial evaluation in excess of 10 percent for PFB remains on appeal. In June 2011, the Veteran presented testimony at a hearing held before the undersigned Acting Veterans Law Judge. A transcript of the hearing has been associated with the record. In March 2012 and September 2014, the Board remanded the claims to the RO, via the Appeals Management Center (AMC) in Washington, DC for additional development. The appeal has since been returned to the Board for further appellate review. By an April 2015 rating decision, the RO increased the Veteran's disability rating assigned to his migraine headaches from 10 to 50 percent, effective, October 25, 2006--the date VA received the Veteran's claim for increased compensation for this disability. Thus the issue on appeal is characterized as reflected on the title page. In September 2015, the Board requested a specialist medical opinion from the Veterans Health Administration (VHA) on the issue of entitlement to service connection for a urinary disability. 38 C.F.R. § 20.901(a) (2015). The requested opinion has been provided and associated with the Veteran's VA Veteran's Benefits Management System (VBMS) electronic record. The VHA opinion has also been provided to the Veteran and his representative, and he was afforded 60 days to provide additional argument or evidence. The Veteran responded by submitting additional evidence, for which he waived RO review, and this issue is now ready for disposition. The issues of entitlement to an initial rating in excess of 10 percent for PFB; entitlement to an increased rating in excess of 10 percent for tinea pedis and tinea versicolor, entitlement to a rating in excess of 50 percent for migraine headaches, to include consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2015); and, entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the evidence supports a finding that his urinary disorder, variously diagnosed as chronic non-specific urethritis; dysuria; prostatitis; and, benign prostatitis hypertrophy, had its onset during his period of active military service. CONCLUSION OF LAW A urinary disorder was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303(d) (2015). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim for service connection for a urinary disorder, that claim has been granted, as discussed below. Any error related to VA's duty to notify and/or assist on that claim is moot. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In view of a September 2014 VA clinician's speculative opinion that addressed the question of whether the Veteran's diagnosed urinary disability had preexisted military service or had its onset therein, the Board requested an opinion from a VHA expert. The Board received the VHA opinion in January 2016. The VHA physician noted, in part, that because he did not have any records of the Veteran having received treatment for a urinary disability prior to service, he was unable to comment as to whether dysuria or prostatitis had preexisted the Veteran's entrance into military service. Regarding direct service connection for the Veteran's diagnosed dysuria, the VA physician noted that the Veteran's service treatment records revealed multiple complaints of burning with urination, which he indicated could have been due to a variety of causes, such as urinary tract infections, sexually transmitted diseases, prostatitis, and/or dietary irritants. The VA physician opined that there was less than a 50 percent probability that the "disorder" was causally or etiologically related to his military service. The Board finds this particular opinion from the VHA physician to be of minimal probative because he did not provide any rationale or explanation to support this blanket conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Regarding the Veteran's diagnosis of benign prostate hypertrophy (BPH), the VHA physician referenced medical studies that discussed the lack of evidence of BPH in men under the age 30. Thus, according to the VA physician, because the Veteran was under the age of 30 throughout his period of military service, he did not have BPH during that time, and that his post-service complaints of nocturia could have been the result of BPH that was most likely a result of aging. Thus, the VA physician ultimately concluded that there was a less than 50 percent probability that the Veteran's BPH was causally or etiologically related to his military service. Regarding the Veteran's diagnosis of prostatitis, the VHA physician opined that because dysuria could be a manifestation of prostatitis, and in the absence of any pre-service medical evidence to state whether or not prostatitis was a condition that preexisted the Veteran's entrance into service, that it was possible that the Veteran could have had nonbacterial prostatitis/chronic pelvic pain syndrome. Thus, the VHA physician opined that it was less than a 50 percent probability that the Veteran's recurrent prostatitis was causally or etiologically related to his military service. (See VHA opinion, received by VA in January 2016). The Board finds the VHA physician's opinion as to the Veteran's prostatitis to be of reduced probative value in evaluating the claim for service connection for a urinary disorder because of its equivocal nature "could have had nonbacterial prostatitis/ chronic pelvic pain syndrome." The Board recognizes that the United States Court of Appeals for Veterans Claims (Court) has held that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Goss v. Brown, 9 Vet. App. 109, 114 (1996). In support of the claim for service connection for a urinary disorder, is a February 2016 opinion, prepared by Dr. S. B., a Board-certified anesthesiologist and pain management specialist. Dr. S. B. indicated that he had interviewed the Veteran on two (2) separate occasions and had reviewed his service treatment and VA records, to include the VHA physician's negative opinion. Dr. S. B. noted that the Veteran had received treatment for urethritis symptoms over two (2) dozen times during active duty, and that he had continued to receive post-service VA treatment for identical symptoms. Thus, Dr. S. B. concluded there was no basis to dispute that the Veteran's [urinary] symptoms were not of service origin. Overall, it was Dr. S. B.'s opinion that the Veteran's symptoms were more likely than not fifty (50%) percent service-connected to military service. Dr. S. B. reasoned that while the exact cause of the Veteran's chronic dysuria and urinary urgency and frequency had not been identified, it was clearly documented that the Veteran had received treatment for these symptoms during and after military service. (See February 2016 opinion, prepared by Dr. S. B.) The Board has carefully considered the medical and clinical data generated in this case. It is found that, on balance, the Veteran's contention that his currently diagnosed urinary disorder had its onset during military service is supported by the medical evidence of record, notably the opinion of Dr. S B.. Therefore, the benefit of the doubt is resolved in the Veteran's favor by finding that his current urinary disorder had its onset during military service. See 38 C.F.R. § 3.303(d). ORDER Service connection for a urinary disorder is granted. REMAND The Board finds that prior to further review of the increased and initial rating claims and claim of entitlement to TDIU, additional procedural development is warranted as outlined in the directives below. Regarding the claim for an increased evaluation for the service-connected headaches, the RO assigned a 50 percent disability rating to this disability in an April 2015 rating action. (See April 2015 rating action). In April 2015 Supplemental Statements of the Case (SSOCs), the RO listed one of the issues as entitlement to an increased rating for headaches, currently evaluated as 10 percent disabling. (See April 23, 2015 SSOC, at page (pg.) 10)). On VA Form 21-0820, Report of General Information, dated April 29, 2015, the RO indicated that it had committed an error by having listed headaches as an issue in its Supplemental Statement of the Case (SSOC), issued on April 23, 2015. The RO indicated that it had taken separate action to increase the evaluation of the Veteran's headaches (e.g., by an April 2015 rating action, the RO increased the headache disability to 50 percent, effective October 25, 2006, the date VA received the Veteran's claim for increased compensation). The RO then indicated that "this constitutes a full grant on appeal because the maximum evaluation allowed by the rating schedule has been assigned." Although the RO characterized the Veteran's headache disability as a full grant, the Board finds this is not accurate as there was no discussion or consideration of a rating on an extraschedular basis. Accordingly, the Board finds the issue is still on appeal; however, an SSOC has not been issued. As such, a remand is required. 38 C.F.R. § 19.31 (2015). The RO must also address the issue of entitlement to TDIU in an SSOC. The issue of entitlement to TDIU is part and parcel of the increased rating claim for the Veteran's service-connected headaches, as well as the remaining initial and increased rating claims on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); 38 C.F.R. §§ 3.340, 4.16 (2015). Specifically, on VA Form 21-8940, the Veteran indicated, in part, that his service-connected headaches had prevented him from obtaining employment. (See VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, at pg. 3, received by VA in January 2015). In addition, in a July 2013 typographed letter to VA, the Veteran maintained that his service-connected skin disabilities (PFB and tinea pedis/versicolor), urinary disability, and headaches had adversely impacted his ability to work. (See Veteran's July 2013 letter to VA, labeled as "Correspondence" and received on July 17, 2013). Finally, the Veteran submitted a May 2015 Notice of Disagreement in response to the RO's denial of entitlement to TDIU, wherein he argued that all of his service-connected disabilities had rendered him unemployable. (See Veteran's NOD, received by VA in November 2015). Accordingly, the RO must adjudicate the issue of entitlement to TDIU. See 38 C.F.R. § 4.16. If the benefit sought is not granted, an SSOC addressing entitlement to TDIU is required See 38 C.F.R. § 19.30 (2015). The Veteran need not perfect an appeal on the issue of entitlement to TDIU for it to be certified to the Board, as it is already under the Board's appellate jurisdiction by virtue of the initial and increased evaluation claims for PFB, tinea pedis/ versicolor and headaches on appeal. See Rice, 22 Vet. at 453. Because the outcome of the issues of entitlement to initial and increased ratings greater than 10 percent for PFB and tinea pedis/versicolor, respectively, may be affected by any further action taken on the TDIU claim, the Board will defer consideration of these issues at this time. See Harris v. Derwinski, 1 Vet. App 180, 183 (1991) (two issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on the resolution of the second issue). Accordingly, the case is REMANDED for the following action: After completing any further development, such as scheduling the Veteran for examinations to determine the current severity of his service-connected PFB, tinea pedis/ versicolor and headaches, readjudicate the claim of entitlement to an increased rating in excess of 50 percent for headaches, to include consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) and adjudicate the issue of entitlement to TDIU in an SSOC. If any benefit sought is not granted, the Veteran and his representative must be furnished an SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). These claims 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). ______________________________________________ M. Mac Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs