Citation Nr: 18144003 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 15-01 763 DATE: October 22, 2018 REMANDED Entitlement to an initial evaluation in excess of 10 percent for pseudofolliculitis barbae is remanded. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for methicillin-resistant staphylococcus aureus (MRSA) with paresthesias and atrophy of bilateral lower extremities is remanded. Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a right hip disorder is remanded. Entitlement to service connection for a left hip disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left ankle disorder is remanded. Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for a right great toe disorder is remanded. Entitlement to service connection for a left great toe disorder is remanded. Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for burn scar of the face is remanded. Entitlement to service connection for burn scars of the chest and right forearm is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, is remanded. REASONS FOR REMAND The veteran served on active duty from June 1972 to April 1977. Evidence indicates that there may be outstanding relevant VA treatment records. The Veteran receives continued care from VA. However, the most recent VA treatment record associated with the claims file is dated in April 2016. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. A Social Security Administration (SSA) Inquiry dated in July 2018 states that the Veteran has a disability onset date of September 2010 and that the Veteran has a date of initial entitlement of May 2018. It is unclear whether the Veteran receives or received SSA disability benefits and any records regarding an award of SSA disability benefits have not been obtained and associated with the claims file. As such, a remand is required to allow VA to request these records. The Veteran was most recently afforded a VA examination regarding his pseudofolliculitis barbae in October 2012, approximately six year ago. As the examination is approximately six years old and as the above orders that attempts be made to obtain additional treatment records, it is necessary to afford the Veteran a contemporaneous examination regarding the severity of his pseudofolliculitis barbae. See Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran seeks entitlement to compensation under 38 U.S.C. § 1151 for additional disability due to MRSA with paresthesias and atrophy of bilateral lower extremities. In a statement dated in August 2011, the Veteran reported that he went to the VAMC in September 2010 to get treatment for leg and groin pain. He stated that he was discharged from the hospital with MRSA and ended up with paresthesia down both lower extremities with atrophy because of non-feasance on the part of the VAMC who failed to treat him properly. The Board cannot make a fully-informed decision as to whether compensation is warranted under the provisions of 38 U.S.C. § 1151 because it is unclear whether the Veteran has additional disability due to VA treatment, and, if so, whether the proximate cause of any additional disability was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. As such, another VA medical opinion is needed. In June 2012 a VA medical expert, after thoroughly reviewing the medical records, rendered the opinion that the VA hospital care did not result in additional disability to the Veteran. The rationale, however, appears to be subject to multiple interpretations. It is unclear whether the care did not result in additional disability or whether there was additional disability but it is not the result of VA care. The opinion needs to be clarified. The opinion obtained on remand should also consider the significance of a February 2016 treatment note showing the Veteran was had baseline neuropathy in his feet after MRSA infection and diabetes mellitus. The Veteran was afforded a VA examination with regard to the etiology of his claimed acquired psychiatric disorder in October 2012. The examiner diagnosed the Veteran with depressive disorder. Although the findings in the rating decision on appeal indicate that the examiner found that the Veteran’s depressive disorder was not due to an exploding radiator pipe in service, review of the examination report does not reveal that opinion. In addition, the examiner did not render an opinion regarding whether the Veteran’s depressive disorder was otherwise related to his active service, including the Veteran’s reported hard landings while parachuting. As such, the Board finds that the Veteran must be afforded another VA examination regarding the etiology of his acquired psychiatric disorder. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was afforded a VA examination with regard to his hip, lumbar spine, great toe, and cervical spine disabilities in October 2012. The examiner found that these disabilities were not incurred in service because they were note due to the Veteran’s duty as a wireman. However, the examiner did not render an opinion with regard to whether the Veteran’s disabilities were otherwise related to his active service, including his parachuting. In addition, in rendering the opinions the examiner did not comet on the Veteran’s in service left foot and cervical spine complaints. As such, the Board finds that the Veteran must be afforded another VA examination. See id. The Veteran was afforded a VA examination with regard to his claim for right and left hearing loss and tinnitus in October 2012. The examiner found that the Veteran’s hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner noted that the Veteran had a history of noise exposure in service with weapons training and earning the Parachute Badge. However, the examiner noted that the Veteran had normal audiograms at entrance and exit examinations and that tinnitus did not begin until eight years prior to the examination. The examiner noted that it was more likely that the Veteran’s hearing loss and tinnitus were a result of his driving a truck after military service. The Board notes that the rationale is not sufficient as there is no discussion in the examination regarding any noise exposure during the Veteran’s truck driving. As such, the Board finds that the Veteran must be afforded another VA examination. See id. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period beginning April 2016. 2. Obtain the Veteran’s federal records from the Social Security Administration (SSA). Document all requests for information as well as all responses in the claims file. 3. After completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his pseudofolliculitis barbae. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 4. Schedule the Veteran for a VA examination by an appropriate clinician to address whether he has an additional disability, to include paresthesias and atrophy of bilateral lower extremities, caused by VA treatment in 2010. The clinician should specifically address the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has an “additional disability” caused by VA treatment? If so, the additional disabilities should be clearly identified. The term “additional disability” means any condition that did not exist immediately before the VA treatment. The clinician must compare the Veteran’s condition immediately before and after the treatment. If there is no “additional disability,” then the clinician does not need to provide answers to (b) and (c) but must explain why the symptoms the claimant contends constitute an “additional disability” are not additional disability caused by the VA treatment. In rendering the opinion, the examiner must comment upon the significance of the February 2016 treatment note indicating baseline neuropathy in his feet after MRSA infection and diabetes mellitus. (b) If the Veteran has an additional disability caused by VA treatment, then is it at least as likely as not that the proximate cause of such disability or disabilities is carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? In determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment, discuss if VA failed to exercise the degree of care that is expected of a reasonable health care provider. (c) If the Veteran has an additional disability caused by the VA treatment, then is it at least as likely as not that this additional disability was reasonably foreseeable as an ordinary risk of the treatment that would be disclosed in connection with informed consent (primary health care provider explains the reasonably foreseeable risks associated with VA treatment or services furnished the Veteran)? The examiner must provide a complete rationale for any opinion expressed. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder found to be present. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s reported parachute service. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left and/or right hip disability, left and/or right great toe disability, lumbar spine disability, and/or cervical spine disability found to be present. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s reported parachute service and the November 1973 in-service left foot complaint. 7. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left and/or right hearing loss and tinnitus found to be present. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to loud noise during weapons training, while working as a wireman, and during parachuting. The examiner must comment on the significance of the Veteran’s work driving a truck. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel