Citation Nr: 20005697 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 19-00 320A DATE: January 23, 2020 REMANDED Entitlement to an initial disability rating in excess of 30 percent prior to May 1, 2019 for posttraumatic stress disorder (PTSD) and in excess of 70 percent thereafter is remanded. Entitlement to service connection for allergies, to include rhinitis, is remanded. Entitlement to service connection for a disability manifested by dizziness and/or loss of balance, to include as secondary to service-connected PTSD, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2006 to April 2009. The Veteran was awarded the Combat Action Badge and Army Commendation Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision. The Veteran’s claims folder contains new and material evidence consisting of an August 2016 VA Disability Benefits Questionnaire for PTSD, which is within one year of the January 2016 rating decision granting service connection for PTSD. Therefore, the evaluation of the Veteran’s PTSD relates back to the original date of claim for service connection. See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (new and material evidence received within one year of a decision by the Agency of Original Jurisdiction prevents that decision from becoming final 38 C.F.R. § 3.400(q) (providing that, as to new and material evidence received within appeal period, the “effective date will be as though the former decision had not been rendered”). A June 2019 rating decision assigned a 70 percent disability rating for the Veteran’s PTSD, effective May 1, 2019. In Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims held that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons, 23 Vet. App. at 5. Thus, given the evidence of record, the Board has recharacterized the Veteran’s claims for service connection for dizziness as a disability manifested by dizziness and loss of balance and for allergies as for allergies, to include rhinitis. The Veteran’s claims for service connection are reflected as such on the title page. 1. PTSD The Veteran’s VA treatment records indicate that he received private treatment for his PTSD during the relevant time period. In particular, an April 2019 VA treatment record states that the Veteran is transferring his care to VA from a private medical provider for his PTSD. A separate April 2019 VA treatment record indicates that the Veteran was receiving medication to treat his PTSD from a private medical provider. The Veteran’s claims folder does not contain these records. A remand is required to allow VA to obtain authorization and request these records. 2. Allergies, to include rhinitis The Veteran was afforded an August 2016 VA Sinusitis, Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx Disability Benefits Questionnaire. The examination report states that the Veteran has a diagnosis of rhinitis. The examination report further provides that the Veteran exhibits signs and symptoms of mild allergic rhinitis. The examination report states that the examiner’s review of the Veteran’s service treatment records failed to show a diagnosis or treatment for allergic rhinitis during his active service and that allergic rhinitis is a disease with a clear and specific etiology and diagnosis. The examiner concludes that based on the above reasoning, it is less likely than not that the Veteran’s allergic rhinitis is related to a specific exposure event experienced by him during service in Southwest Asia. The Board finds that the August 2016 VA medical opinion is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The examiner’s medical opinion is not supported by a thorough explanation with citations to the Veteran’s medical history, relevant medical literature, the clinical findings made on examination, or the symptomatology reflected in the medical and lay evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its reasoning); 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.”). In particular, the medical opinion does not cite to March 2006 service treatment records that show the Veteran was constantly wiping his nose and that he had a mild nasal passage blockage. The medical opinion also does not cite to an April 2006 service treatment record that provides that the Veteran has nasal drainage and an upper respiratory infection. Additionally, the Board finds the August 2016 VA medical opinion inadequate as it is based, in part, upon an absence of contemporaneous documentation of complaints and treatment for rhinitis. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible); Cf. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that a VA opinion was inadequate where the examiner did not comment on the Veteran’s report of in-service injury and relied on lack of evidence in service medical records to provide a negative opinion); see also Stefl, 21 Vet. App. at 124; Nieves-Rodriguez, 22 Vet. App. at 302. Lastly, the medical opinion does not consider whether the Veteran’s current rhinitis may be related to an in-service disease, event, or injury outside of his service in Southwest Asia. Therefore, the Veteran must be afforded a new examination to determine the nature and etiology of any allergies, to include rhinitis. 3. Dizziness and/or loss of balance, to include as secondary PTSD. The Veteran has not been afforded an examination to determine the nature and etiology of a disability manifested by dizziness and loss of balance. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. The Veteran is service-connected for PTSD. An August 2009 VA treatment record provides that the Veteran during his service in Southwest Asia, he sustained a vehicle crash and was exposed to IED explosions and mortar blasts. An August 2009 VA treatment record describes the Veteran’s neurobehavioral symptoms as moderate dizziness and moderate loss of balance. Additionally, an April 2019 VA treatment record demonstrates that the Veteran has fallen in the past 12 months due to his balance. Because there is at least an indication that the Veteran’s current disability manifested by dizziness may be related to his active duty service, a VA examination and opinion must be provided to make an informed decision on this claim. McLendon, 20 Vet. App. at 83; see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is not competent to substitute its own opinion for that of a medical expert). 4. TDIU In January 2020, the Veteran submitted a VA Form 21-8940 application for a TDIU. He wrote that he was unable to work due to his PTSD and migraines. When entitlement to a TDIU is raised in connection with an increased rating claim for one or more of those service-connected disabilities, the Board has jurisdiction over the issue because it is part of the claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). This issue is therefore found to be encompassed by the Veteran’s claim for an increased rating for PTSD, and it is also remanded so that it can be fully developed and adjudicated. The matters are REMANDED for the following action: 1. Perform all necessary notice and development in conjunction with the Veteran’s claim for a TDIU. 2. Obtain the Veteran’s VA treatment records for the period from September 2019 to the present. 3. Ask the Veteran to complete a VA Form 21-4142 for any physicians and facilities relating to treatment for his PTSD, allergies including rhinitis, and any disabilities manifesting as dizziness and/or loss of balance. Make two requests for the authorized records from all physicians and facilities identified by the Veteran relating to treatment for PTSD, allergies including rhinitis, and any disabilities manifesting as dizziness and/or loss of balance, unless it is clear after the first request that a second request would be futile. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any allergies, to include rhinitis. The examiner must: (a.) Identify all current allergies found to be present. (b.) Opine whether any identified allergy at least as likely as not (50 percent or greater probability) had its clinical onset during active service or is related to an in-service injury, event, or disease, including Southwest Asia service. In providing the above opinion, the examiner should consider: • A November 2008 Post-Deployment Health Assessment indicates that the Veteran went to sick call for a cough lasting more than three weeks. • An April 2006 service treatment demonstrates that the Veteran has nasal drainage and an upper respiratory infection. • Service treatment records in March 2006 provide that the Veteran has a sore throat, cough, is constantly wiping his nose, and has a mild nasal passage blockage. • A February 2006 service treatment record states that the Veteran has a cough. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any disability manifested by dizziness and/or loss of balance. The examiner must (a.) Identify all disabilities manifested by dizziness and loss of balance. (b.) Opine whether any identified disability is at least as likely as not (50 percent or greater probability) had its clinical onset during his active service or is related to an in-service injury, event, or disease, including a vehicle crash and/or exposure to IED explosions and mortar blasts. (c.) Opine whether any identified disability is at least as likely as not (50 percent or greater probability) proximately due to service-connected PTSD. (d.) Opine whether any identified disability is at least as likely not (50 percent or greater probability) aggravated beyond its natural progression by service-connected PTSD. In providing the above opinions, the examiner should consider: • An April 2019 VA treatment record that demonstrates that the Veteran has fallen in the past 12 months due to his balance. • An August 2009 VA treatment record that describes the Veteran’s neurobehavioral symptoms as moderate dizziness and moderate loss of balance. • An August 2009 VA treatment record that shows that the Veteran was involved in a vehicle crash and was exposed to IED explosions and mortar blasts during his Southwest Asia service. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. Mary E. Rude Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and it does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.