Citation Nr: 1807840 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-17 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for fibromyalgia. 2. Entitlement to service connection for major depressive disorder. 3. Entitlement to service connection for a traumatic brain injury (TBI). 4. Entitlement to service connection for bilateral hearing loss disability. 5. Entitlement to service connection for arthritis. 6. Entitlement to service connection for tendonitis. 7. Evaluation of giant urticarial, currently rated as 30 percent disabling. 8. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Jacques P. DePlois, Attorney at Law ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from November 1980 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the VA Regional Office (RO) in Portland, Oregon. In his January 2013 notice of disagreement, the Veteran asserted that he was unemployable as a result of his service-connected skin disability. Therefore, the Board concludes that the issue of entitlement to a TDIU is before it. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran requested a hearing before a Veterans Law Judge, but withdrew his request for a hearing through written correspondence dated in August 2016. The Veteran having withdrawn his hearing request, the Board will proceed to review the case based on the evidence of record. See 38 C.F.R. § 20.704(e) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A January 2011 treatment record shows that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). The SSA records must be obtained on remand as the SSA's decision and the records upon which the agency based its determination are potentially relevant to VA's adjudication of these claims. 38 U.S.C. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2); see also Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006). Additionally, the Board also finds that additional examinations and medical opinions are needed. The Veteran was afforded a VA psychiatric examination in March 2012; a positive opinion was provided, but was premised on a reported in-service injury that is not shown to have occurred. In this regard, the Veteran reported to the examiner that his psychiatric symptoms began after a reported electrocution in 1983; however, his service treatment records (STRs) show complaints of nerves, anxiety and depression in 1981 associated due to problems with his wife and showing a diagnosis of neurodermatitis. Consequently, the Board concludes that the examination is not adequate as it was based upon an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). The Veteran has contended that his major depressive disorder is secondary to his service-connected skin disability. See, e.g., January 2013 notice of disagreement. As already noted, his STRs do show he was diagnosed with neurodermatitis and shows symptoms of depression and anxiety. The 2012 examiner did not specifically address this theory of service connection, that his psychiatric disability is secondary to his service connected skin disability. Therefore, the Board concludes that a new examination is necessary. Additionally, the Veteran has contended that his fibromyalgia is secondary to his service-connected giant urticaria. On remand, he should be provided a VA examination to determine the etiology of his diagnosed fibromyalgia. Lastly, the Veteran was last afforded a VA examination for his skin disability in 2012. In light of a remand being necessary regardless, the Board concludes that he should be provided a new VA examination to ascertain the current level of severity of his giant urticaria. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claim folder the SSA records pertaining to the Veteran's claim for benefits, to include the medical records used in support of his claim. After furnishing the Veteran with a 38 C.F.R. § 3.159(b) notice letter addressing entitlement to a TDIU, obtain all outstanding VA treatment records. The request should include non-electronic and/or archived paper records that have been scanned into the VA electronic health record. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records. 2. Afford the Veteran a VA mental disorders examination, with a medical professional of appropriate expertise who has reviewed the claim file, to determine the nature, extent, and etiology of any diagnosed psychiatric disorder. The examiner is requested to review the record and offer an opinion as to whether it is at least as likely as not (i.e., probability of approximately 50 percent) that any diagnosed psychiatric disability had its onset in service; is related to the Veteran's military service; or is caused or aggravated (permanently worsened beyond normal progression) by the service-connected giant urticaria [If a psychiatric disorder is found to have been aggravated by the service-connected giant urticaria, the examiner should quantify the approximate degree of aggravation.] A complete rationale should be given for all opinions and conclusions expressed. 3. Afford the Veteran a VA examination, with a medical professional of appropriate expertise who has reviewed the claim file, to determine the nature, extent, and etiology of any diagnosed fibromyalgia. The examiner is requested to review the record and offer an opinion as to whether it is at least as likely as not (i.e., probability of approximately 50 percent) that any diagnosed psychiatric had its onset in service; is related to the Veteran's military service; or is caused or aggravated (permanently worsened beyond normal progression) by the service-connected giant urticaria [If fibromyalgia is found to have been aggravated by the service-connected giant urticaria, the examiner should quantify the approximate degree of aggravation.] A complete rationale should be given for all opinions and conclusions expressed. 4. Afford the Veteran a VA skin examination, with an examiner who has reviewed the claim file. This examiner must address all subjective complaints and objective symptoms of the giant urticaria. All findings and opinions must be included in a typewritten report. The examiner should discuss whether the giant urticaria results in: i) Recurrent debilitating episodes occurring at least four times during the past 12-month period, and; requiring intermittent systemic immunosuppressive therapy for control; or ii) Recurrent debilitating episodes occurring at least four times during the past 12-month period despite continuous immunosuppressive therapy. iii) Discuss the impact on the Veteran's ability to gain and retain substantially gainful employment. A complete rationale should be given for all opinions and conclusions expressed. 5. The AOJ should then review the record and readjudicate the claims. If any remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the record to the Board. 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 appeal must be afforded expeditious treatment. The law requires that all matters 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. §§ 5109B, 7112 (2012). _________________________________________________ E.I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).