Citation Nr: 18149759 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-10 548 DATE: November 13, 2018 REMANDED Entitlement to service connection for sinusitis and rhinitis is remanded. Entitlement to service connection for a bilateral ear disorder, to include otitis externa, is remanded. Entitlement to service connection for a right hip disorder is remanded. Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a bilateral Achilles tendon disorder is remanded. Entitlement to service connection for residuals of an osteotomy with genioplasty is remanded. Entitlement to an initial compensable evaluation for genital herpes is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1998 to May 1999 and from October 1999 to July 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision. The Board notes that the Veteran’s appeal originally included the issues of entitlement to service connection for positive purified protein derivative (PPD) results, tinea pedis, ingrown toenails, and a kidney disorder, as well as entitlement to increased evaluations for a cervical strain, lumbosacral strain with bilateral lower radiculopathy, bilateral knee impingement, and a bladder wall disability. However, the Veteran did not perfect those appeals following the issuance of the December 2015 statement of the case. Rather, he specifically limited his appeal to the issues listed above in his February 2016 substantive appeal. Therefore, those issues are no longer in appellate status, and no further consideration is necessary. The Board also notes that the Veteran appears to raise the issue of entitlement to service connection for an emotional disorder in his February 2016 substantive appeal. The Veteran and his representative are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017). Regarding the claim for service connection for a right hip disorder, the Veteran was diagnosed with a chronic right hip strain during a May 2005 VA examination. However, the examiner did not provide an opinion regarding the etiology of the Veteran’s disorder. Therefore, a remand is necessary to obtain a VA medical opinion. Regarding the claim for service connection for a bilateral Achilles tendon disorder, a May 2010 VA examiner determined that there was no evidence of Achilles tendonitis. However, in his August 2011 notice of disagreement, the Veteran reported having symptoms of pain in his Achilles tendons that impaired his ability to stand. The United States Court of Appeals (Court) has held that pain in the absence of a presently-diagnosed condition can cause functional impairment, which may qualify as a disability for VA purpose. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Therefore, a remand is necessary to obtain an additional VA examination. Regarding the claim for service connection for a left shoulder disorder, a May 2010 VA examination report noted that a physical examination of the Veteran’s left shoulder was normal. However, the examiner did not fully address whether the Veteran’s reported pain resulted in any functional impairment. See Saunders, 886 F.3d at 1362. Notably, in his August 2011 notice of disagreement, the Veteran reported that he was unable to reach over his shoulder. In his February 2015 substantive appeal, the Veteran reported having increased pain and limitation of motion. Therefore, a remand is necessary to determine the nature and etiology of any left shoulder disorders that may be present. Regarding the claim for service connection for sinusitis and rhinitis, a May 2010 VA examiner stated that there was no evidence of chronic sinusitis on examination. However, the examiner did not review the claims file, and it is unclear whether he considered the Veteran’s complete medical history. In addition, the examiner opined that the Veteran’s symptoms of allergic rhinitis appeared to be more seasonal in nature. However, the Board notes that the opinion uses speculative language and is not supported by a complete rationale. Therefore, a remand is necessary to obtain an additional VA examination and medical opinion. Regarding the claim for service connection for a bilateral ear disorder, a May 2010 VA examiner stated that there was no active ear disease on examination. However, he did not address the Veteran’s statements regarding his ongoing symptoms of ear infections and pain. In addition, in his February 2011 notice of disagreement, the Veteran reported having otitis externa that required antibiotic treatment. As discussed below, the VA medical records currently associated with the claims file appear incomplete. Moreover, the Board finds that the claim for service connection for otitis media is inextricably intertwined with his claim for service connection for sinusitis and rhinitis. For these reasons, a remand is necessary. The Veteran’s service treatment records show that he underwent an osteotomy with genioplasty in September 2004. Thereafter, a September 2004 consultation report noted that the Veteran complained of left temporomandibular joint dysfunction. In addition, a September 2009 VA medical record noted that the Veteran complained of pain in his right upper jaw. For these reasons, a remand is necessary to obtain a VA examination to determine the nature and etiology of any residuals of an osteotomy with genioplasty that may be present. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In addition, in his February 2016 substantive appeal, the Veteran reported having genital herpes outbreaks approximately 5 to 7 times per year, as well as pain during sexual intercourse. This evidence suggests that the Veteran’s disability may have worsened since the May 2010 VA examination. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, a remand is necessary to obtain an additional VA examination to ascertain the current severity and manifestations of the Veteran’s genital herpes. Lastly, the Board notes that the VA medical records currently associated with the claims file are very limited. Indeed, a handwritten notation on the VA medical records indicated that additional records were available in CAPRI. See VA medical records received June 21, 2010. Therefore, the Agency of Original Jurisdiction (AOJ) should obtain any outstanding VA medical records. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a right hip disorder, left shoulder disorder, bilateral ear disorder, sinusitis, rhinitis, herpes, and residuals of an osteotomy with genioplasty. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records, to include any records from the Baltimore VA Medical Center (VAMC). 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any sinusitis or allergic rhinitis that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has a current sinusitis and/or rhinitis disorder that manifested in or is otherwise causally or etiologically related to his military service, to include any symptomatology therein. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any bilateral otitis externa that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current ear disorders, to include otitis externa. If the Veteran does not have a current diagnosis associated with his reported symptoms, the examiner should state this with a fully reasoned explanation. For each disorder identified, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to the Veteran’s military service, to include any symptomatology therein. The examiner should also state whether it is at least as likely as not that the disorder was either caused by or aggravated by a service-connected disability. In rendering his or her opinion, the examiner should consider the service treatment records that document complaints of ear pain, as well as treatment for otitis media and otitis externa. See, e.g., in-service treatment records from August 2000 (noting a one-month history of chronic ear pain); April 2001 (showing an assessment of bilateral otitis media), November 2001 (showing assessments of otitis externa and rhinitis); and March 2004 (audiological evaluation noting a history of ear infections approximately four times per year). (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After any additional records are associated with the claims file, the Veteran should be afforded a VA examination to determine the nature and etiology of any left shoulder disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The Veteran has contended that he has symptoms of pain and limitation of motion in his left shoulder that had their onset during his active duty service. See, e.g., May 2010 VA examination report; August 2011 notice of disagreement; and February 2015 substantive appeal. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify any current left shoulder disorders. If the Veteran does not have a current diagnosis associated with his reported symptoms, the examiner should state this with a fully reasoned explanation. The examiner should also state whether there is any functional impairment caused by the Veteran’s reported pain. Evidence of pain alone that causes functional impairment, even without a specific diagnosis or identifiable disease, may constitute a disability for VA purposes. For each disorder identified, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to the Veteran’s military service, to include any symptomatology therein. In rendering this opinion, the examiner should consider the November 2005 service treatment record that noted an assessment of mild shoulder impingement syndrome. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After any additional records are associated with the claims file, the Veteran should be afforded a VA examination to determine the nature and etiology of any right hip disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current right hip disorders, to include a right hip strain. If any previously diagnosed right hip disorders are not found on examination, the examiner should address whether they were misdiagnosed or have resolved. For each diagnosis identified, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to the Veteran’s military service, to include any injury or symptomatology therein. In rendering this opinion, the examiner should consider the November 2002 service treatment record that noted a diagnosis of right piriformis syndrome and the March 2005 record that noted abnormal right SI joint motion and hip pain. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. After any additional records are associated with the claims file, the Veteran should be afforded a VA examination to determine the nature and etiology of any bilateral Achilles tendon disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The Veteran has contended that he has symptoms of pain in his Achilles tendons that impairs his ability to stand. He also reported that he wears orthopedic boots at night in order to improve his function during the day. See, e.g., August 2011 notice of disagreement and February 2015 substantive appeal. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify any current bilateral Achilles tendon disorders. If the Veteran does not have a current diagnosis associated with his reported symptoms, the examiner should state this with a fully reasoned explanation. The examiner should also state whether there is any functional impairment caused by the Veteran’s reported pain. Evidence of pain alone that causes functional impairment, even without a specific diagnosis or identifiable disease, may constitute a disability for VA purposes. For each disorder identified, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to the Veteran’s military service, to include any symptomatology therein. In rendering this opinion, the examiner should consider the October 2005 service treatment record that noted a diagnosis of Achilles tendonitis and that the Veteran was prescribed night splints. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 7. After any additional records are associated with the claims file, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected genital herpes. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for evaluating the disability under the rating criteria. In particular, he or she should specify the location and extent of the disability in terms of percentage of the body affected and percentage of exposed areas affected. He or she should also indicate whether the Veteran requires systemic therapy, such as corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs. If so, please specify the duration and frequency during the prior 12 months. Any medications used to treat the disability should be identified as topical, corticosteroid, or immunosuppressive. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claim file, must be made available to the examiner for review. 8. The AOJ should review the examination reports to ensure compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel