Citation Nr: 1802768 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 11-32 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for irritable bowel syndrome (IBS). 3. Entitlement to an initial rating in excess of 50 percent for service connected post-traumatic stress disorder (PTSD) from November 21, 2007, to September 26, 2016. 4. Entitlement to service connection for a skin disorder, to include folliculitis and dermatitis. 5. Entitlement to an initial compensable rating for trace blepharitis of the right eye. 6. Entitlement to service connection for mouth sores. REPRESENTATION Appellant represented by: Margaret Costello, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel INTRODUCTION The Veteran had active military service from March 1986 to December 1992 and from July 2006 to November 2007. These matters come before the Board of Veterans' Appeals (Board) from rating decisions issued in January 2009, June 2009, October 2011, and June 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In the January 2009 rating decision, the RO, in pertinent part, granted service connection for trace blepharitis of the right eye and assigned a noncompensable disability rating and denied service connection for folliculitis. In the June 2009 rating decision, the RO, in pertinent part, denied service connection for a back disability. In the October 2011 rating decision, the RO, in pertinent part, granted service connection for PTSD and assigned a 30 percent disability rating, effective November 21, 2007. A M ay 2-12 communication requests "reconsideration" of that decision and is deemed to be a notice of disagreement. In the June 2013 rating decision, the RO, in pertinent part denied service connection for IBS and mouth sores. The Veteran testified before a Decision Review Officer (DRO) in March 2016. The transcript has been reviewed and associated with the claims file. In a decision dated in October 2016, the DRO increased the disability rating for PTSD to 50 percent, effective November 21, 2007, and 70 percent, effective September 2016. The Veteran filed a timely Form 9 and indicated she wished to appeal the 50 percent disability rating for PTSD, effective November 21, 2007, to September 26, 2016. The Veteran testified before the undersigned at a hearing in December 2016. The transcript has been reviewed and associated with the claims file. A subsequent hearing was scheduled for March 15, 2017, which had been scheduled in error and was thereby waived by the Veteran. The issue of blepharitis of the left eye has been raised by the record in a claim filed in June 2008, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Service Connection for IBS, mouth sores, and folliculitis The Veteran served in Iraq and asserts that she is entitled to service connection for IBS, mouth sores, and folliculitis as a result of the chemicals and toxins encountered in Iraq, including from the burn pits. See 05/13/2016, VBMS, Hearing Testimony, pp. 5, 25; 12/01/2016, VBMS, Hearing Transcript, pp. 9, 18-19; 03/31/2011, VBMS, Correspondence. The Veteran has been assessed with folliculitis, dermatitis, and IBS. See 02/29/2012, VBMS, CAPRI, p. 6; 03/01/2013, VBMS, VA Examination, pp. 9, 23. With regard to the Veteran's skin disorder (folliculitis and/or dermatitis), a VA examination was performed in April 2011. The examiner concluded that the Veteran's skin disability was not the result of burn pit exposure and reasoned that there was no relation between her skin disability and exposure to heat and dust per a literature review. The Board finds that this examination is insufficient. The examiner failed to acknowledge or discuss the notice to VA examiners regarding the Polycyclic Aromatic Hydrocarbons (PAHs), Volatile Organic Compounds (VOCs), and Toxic Organic Halogenated Dioxins and Furans (dioxins) found in air samplings from large burn pits in Iraq. See 03/31/2011, VBMS, Correspondence. A VA examination was performed in March 2013 to assess the Veteran's skin disability, IBS, and mouth sores. The examiner assessed the Veteran with dermatitis and IBS by history and concluded that both disabilities had a clear and specific etiology, which is most likely from her panic disorder which existed prior to service as noted in mental health records. The Board finds that this examination is insufficient. In this regard, every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. § 1111. In this case, neither period of active service contains an enlistment examination showing any defect related to panic disorders, skin disability, or IBS. Moreover, the file does not contain clear and unmistakable evidence of chronic panic disorder, skin disability, or IBS prior to service. Accordingly, the presumption has not been rebutted here. Rather, the appropriate inquiry is whether the claimed skin disability and/or IBS was incurred in, rather than aggravated by, active service. The March 2013 examiner did not find any active ulcers/sores. However, the examiner failed to discuss the Veteran's pertinent medical history, including the oral lesions found on examination in March and April 2008. Accordingly, the Board finds that a new examination is warranted to determine whether the Veteran had a present disability at any time during this claim on appeal and, if so, whether it was incurred in service. See 05/07/2014, VBMS, Medical Treatment-Record- Government Facility, pp. 3, 12-13. Furthermore, throughout this appeal, the Veteran has noted treatment from a primary care physician, M.G., M.D. Dr. M.G. has treated the Veteran for her disabilities and has indicated that IBS occurred in Iraq and she was told by the medic that she had food poisoning. In the April 2011 letter, Dr. M.G. further noted that the Veteran had an eating disorder attributable to her PTSD. While a few records from Dr. M.G.'s treatments are in the file these reference other treatment and therefore appear to be incomplete. Accordingly, on remand, the treatment records should be obtained. See 04/22/2011, VBMS, Medical Treatment Record-Non-Government Facility. Moreover, an opinion should be obtained addressing whether the IBS is secondary to PTSD. Service Connection for Back Disability The Veteran has been assessed with degenerative disease of the lumbar spine. See 08/20/2016, VBMS, CAPRI, pp. 1-2. Her service treatment records indicate complaints of back pain in November 1991. See 07/08/2016, VBMS, STR-Medical, p. 3. Dr. M.G. has indicated that severe back pain resulted from her active duty in the military. However, he did not provide a rationale to support this opinion. See 04/22/2011, VBMS, Medical Treatment Record-Non-Government Facility. A VA examination has not been afforded to assess the Veteran's back disability. The evidence of record suggests an association between the Veteran's current back disability and service. Accordingly, the Board finds a VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Increased Rating for PTSD After a review of the evidence, the Board finds that the Veteran's treatment records for PTSD are not associated with the claims file. Specifically, the record reveals that the Veteran attended counseling services at Dearborn Vet Center, as noted in a September 2010 letter from Social Worker T.E. See 09/13/2010, VBMS, Medical Treatment Record-Government Facility. Accordingly, on remand the AOJ should obtain the Veteran's outstanding treatment records for PTSD. Increased rating for blepharitis of the right eye A VA examination was performed in September 2016 to assess the severity of the Veteran's service connected blepharitis of the right eye. The examiner indicated that blepharitis tends to heal on its own and there were no complaints or findings on examination to warrant continuing the diagnosis. The examiner assessed the Veteran with bilateral dry eye syndrome and indicated it was not related to the previously service connected diagnosis. The Board notes that service connection is clearly in effect for blepharitis of the right eye. Accordingly, the examiner's statement that it healed is immaterial to the present analysis. At issue is whether the Veteran's reported symptoms of crustiness, gunkiness, scratching, and itching of her eye are attributable to the service-connected blepharitis, to include as residuals of that disorder. Indeed, the Board notes that medical references indicate itchy eyes as a symptom of blepharitis. Since the Veteran complained of itchy eyes on examination the basis for the examiners conclusions is unclear and requires clarification. Moreover, even if inactive, the examiner should state whether the Veteran has any other residuals of blepharitis, including visual impairment or disfigurement. Accordingly, the Board finds that a new examination is warranted to address the severity of the Veteran's service connected blepharitis of the right eye, including any residuals. Accordingly, the case is REMANDED for the following actions: 1. Obtain authorization and associate with the claims file the Veteran's treatment records from Dr. M.G. If any records are unavailable, the Veteran and her representative should be notified and provided an opportunity to respond. 2. Thereafter, schedule the Veteran for a VA examination (or examinations) to determine the etiology of her skin disability, IBS, mouth sores, and back disability. The claims file, including this remand, must be reviewed by the examiner and such review should be noted in the report. The examiner should identify each disability of the skin, mouth, digestive system, and back. Thereafter, the examiner should provide an answer to the following: a. Is it at least as likely as not (a 50 percent probability or more) that any diagnosed skin disability, including folliculitis and dermatitis, had its onset during military service or is otherwise related to such service? b. Is it at least as likely as not (a 50 percent probability or more) that any diagnosed mouth disability, including sores in mouth, had its onset during military service or is otherwise related to such service? c. Is it at least as likely as not (a 50 percent probability or more) that any diagnosed gastrointestinal disability, including IBS, had its onset during military service or is otherwise related to such service? If not, is it at least as likely as not that a gastrointestinal disability is proximately due to her service-connected PTSD, to include any associated eating disorders? If not, is it at least as likely as not that a gastrointestinal disability has been aggravated by her PTSD, to include any associated eating disorders? Aggravation means a permanent worsening beyond the natural progression of the disorder. If aggravation is found, please identify the baseline level of disability before such aggravation. d. Is it at least as likely as not (a 50 percent probability or more) that any diagnosed back disability, including degenerative disc disease of the lumbar spine, had its onset during military service or is otherwise related to such service? In addressing the above questions, the examiner should discuss the exposure to Iraq burn pits, including the notice to VA examiners. See 03/31/2011, VBMS, Correspondence. The examiner should also discuss the articles of record regarding the health effects of serving in the Gulf War. See 05/07/2014, VBMS, Congressionals. The examiner should provide a rationale for each opinion provided. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 3. Obtain authorization and associate with the claims file the Veteran's treatment records from the Dearborn Vet Center from February 2008 to September 2016. If any records are unavailable, the Veteran and her representative should be notified and provided an opportunity to respond. 4. Schedule the Veteran for a VA examination to determine the nature and severity of his service connected blepharitis of the right eye, including any residuals. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran's pertinent medical history and such review should be noted in the examination report. The examiner should determine whether the Veteran's service connected blepharitis of the right eye is active, i.e., with objective findings such as mucous secretions, etc. The examiner should expressly state why the itchiness complained of at the last examination was deemed unrelated to blepharitis. Moreover, if no active blepharitis is found, the examiner should determine whether there are any residuals such as visual impairment and disfigurement (diagnostic code 7800). 38 C.F.R. §§ 4.79, Diagnostic Code 6018, 4.118, Diagnostic Code 7800. 5. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, she and her 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 her 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 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). _________________________________________________ ERIC S. LEBOFF 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) (2016).