Citation Nr: 20022030 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 12-26 324 DATE: March 30, 2020 REMANDED Entitlement to an initial compensable rating for bilateral hearing loss is remanded for additional development. Entitlement to an increased initial rating in excess of 70 percent for unspecified anxiety disorder is remanded for additional development. Entitlement to an increased initial rating in excess of 10 percent for pseudofolliculitis barbae is remanded for additional development. Entitlement to service connection for a bilateral achilles tendon disability, to include as secondary to a service-connected disability, is remanded for additional development. Entitlement to service connection for a stomach disability, to include as secondary to a service-connected disability, is remanded for additional development. Entitlement to service connection for a blackout disability, to include as secondary to service-connected disability, is remanded for additional development. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded for additional development. REASONS FOR REMAND The Veteran had active service with the U.S. Marines from October 1997 to October 2001, and from March 2003 to June 2003. During this time, he was awarded the Armed Forces Mobilization Medal, the Good Conduct Medal, and the National Defense Service Medal. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In November 2019, the Veteran presented testimony at a videoconference Board hearing before the undersigned Veterans’ Law Judge. A transcript of that hearing has been reviewed and associated with the claims file. Procedurally, the Board notes that this appeal was last remanded in June 2015 for the RO to obtain outstanding VA treatment records as well as to address whether the Veteran’s claimed disability of blackouts were related to his service-connected migraines. 1. Entitlement to an initial compensable rating for bilateral hearing loss; an increased initial rating in excess of 70 percent for unspecified anxiety disorder; and an increased initial rating in excess of 10 percent for pseudofolliculitis barbae are remanded. The Veteran has asserted that his service-connected bilateral hearing loss, unspecified anxiety disorder, and pseudofolliculitis barbae all warrant higher ratings than the respective noncompensable, 70 percent, and 10 percent evaluations currently assigned. The Board notes that in conjunction with these claims, the Veteran last underwent comprehensive VA examinations for these conditions in June 2010, April 2017, and May 2017. See, e.g., June 2010 VA Skin Examination; April 2017 VA Mental Disorders Disability Benefits Questionnaire (DBQ); May 2017 VA Hearing Loss and Tinnitus DBQ. Given the length of time that has passed since the Veteran was last examined for these conditions, the Board finds that a remand of these issues is warranted to provide the Veteran with contemporaneous VA examinations that assess the current severity of the Veteran’s service-connected bilateral hearing loss, unspecified anxiety disorder, and pseudofolliculitis barbae disabilities. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). 2. Entitlement to service connection for a bilateral achilles tendon disability, to include as secondary to a service-connected disability, is remanded. The Veteran has also asserted that he has a bilateral achilles tendon disability that is related to his active service. Specifically, he maintains that this disability was caused by or is otherwise related to his service-connected pes planus, hallux valgus, and/or plantar fasciitis. A review of the Veteran’s medical treatment records reflects that during both his September 2015 and May 2017 VA foot examinations, the examiners noted that the Veteran had inward bowing of the Achilles tendon bilaterally, but did not have marked inward displacement or sever spasm of the Achilles tendon bilaterally on manipulation of the feet. See, e.g., September 2015 VA Foot DBQ; May 2017 VA Foot DBQ. The RO ultimately denied the Veteran’s claim on the grounds that there was no current diagnosis of an Achilles tendon disability. However, at his November 2019 Board Hearing, the Veteran provided extensive testimony regarding his difficulty and limitations in walking as a result of his various feet disabilities. The Board notes that in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit essentially found that pain alone resulting in functional impairment is in fact a disability, and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. In light of the Veteran’s testimony regarding the functional impact of his various feet disabilities on his ability to walk, the Board finds that a remand of this issue is warranted in order to generate a VA examination addressing the nature and etiology of the Veteran’s claimed achilles tendon disability, to include as secondary to a service-connected disability. 3. Entitlement to service connection for a stomach disability, to include as secondary to a service-connected disability, is remanded. The Veteran maintains that he has a stomach disability that is related to his active service. Specifically, he asserts that this disability is related to any number of medications that he currently takes for his service-connected disabilities. In October 2010, the RO denied this claim on the grounds that there was no current diagnosis of a stomach-related disability. However, a review of the Veteran’s treatment records reflects that on multiple occasions the Veteran reported having abdominal pain, and that he was subsequently diagnosed with gastroesophageal reflux disease (GERD) in July 2015, for which he was prescribed medication. See July 2015 Miami VAMC Addendum. Further, at his Board hearing, the Veteran’s attorney argued that the Veteran’s stomach condition was likely a result of his medications he was taking for already service-connected conditions. See November 2019 Board Hearing Transcript. Given the Veteran’s contentions, the evidence meets the low threshold of an “indication” that the claimed bladder disability has a causal connection or association with service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (reflecting that 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). Thus, the Board finds that a remand of this issue is warranted to provide the Veteran with a VA examination addressing the nature and etiology of the Veteran’s stomach disability, to include as secondary to a service-connected disability. 4. Entitlement to service connection for a blackout disability, to include as secondary to a service-connected disability is remanded. The Veteran also asserts that he has a blackout disability that is related to his active service. As noted earlier above, in a June 2015 decision, the Board remanded the issue of entitlement to service connection for blackouts for the issuance of an opinion regarding whether the Veteran’s claimed blackouts were either related to or were a symptom of his service-connected migraine headaches. See June 2015 Board Decision. The Veteran then underwent a VA headaches examination in January 2016. See, e.g., January 2016 VA Headaches DBQ; January 2016 VA Medical Opinion DBQ. The examiner was specifically asked to answer the question of whether the Veteran’s current migraines were as least as likely as not related to migraines that he had during his active service; and if the answer to this questions was positive, the examiner was then asked to address whether either blackouts or dizziness were as least as likely as not related to or symptoms of migraines. While the examiner answered the first question in the positive, she did not answer the second question at all. Further, a subsequent VA headaches DBQ administered in May 2017 also did not address the claimed issue of blackouts at all. Accordingly, as the question posed by the Board in its June 2015 remand regarding the Veteran’s claimed issue of blackouts has not been answered, a remand is required because the file does not reflect substantial compliance with the prior remand directives, and a new VA examination and opinion is needed to address the Veteran’s claim for entitlement to service connection for a blackout disability, to include as secondary to a service-connected disability. Stegall v. West, 11 Vet. App. 268 (1998). 5. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. As discussed in detail earlier above, the Board has remanded the Veteran’s claims for entitlement to increased initial ratings for service-connected bilateral hearing loss, unspecified anxiety disorder, and pseudofolliculitis barbae; the issues of entitlement to service connection for bilateral achilles tendon, stomach, and blackout disabilities, have also been remanded. The RO’s adjudication of these claims may impact the Veteran’s pending claim for TDIU. Thus, the claim for entitlement to TDIU is inextricably intertwined with the remanded issues of bilateral hearing loss, unspecified anxiety disorder, pseudofolliculitis barbae, bilateral achilles tendon, stomach, and blackout disabilities. Accordingly, following the adjudication of these six claims, the AOJ should then readjudicate the claim for TDIU. The matters are REMANDED for the following action: 1. Obtain any additional outstanding VA treatment records for the Veteran and associate them with the claims file. All attempts to secure any identified records and any response received must be documented in the case file. 2. After any available records are associated with the claims file, the AOJ should schedule the Veteran for examinations by an appropriate clinician to determine the current severity of his service-connected 1) bilateral hearing loss, 2) unspecified anxiety disorder, and 3) pseudofolliculitis barbae. 3. The Veteran should also be scheduled for additional VA examinations in the appropriate specialty or specialties to address the nature and etiology of his 1) claimed achilles tendon, 2) stomach, and 3), blackout disabilities. The examinations should include any diagnostic testing or evaluation deemed necessary for each specific claimed disability. The electronic claims file must be made available for the examiner to review. The Veteran must be interviewed. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. The examiner must provide a clear explanation for the opinion, to include any comment on any credibility issues raised by the record from a medical perspective. Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results as to each claimed condition, the examiner is requested to provide an opinion as to the following questions: (a.) Is it at least as likely as not (i.e. a 50 percent chance or greater) that the Veteran’s claimed bilateral achilles tendon disability is etiologically-related to the Veteran’s military service? (b.) If the answer to (b.) is negative, is it at least as likely as not (50 percent probability or more) that the Veteran’s claimed bilateral achilles tendon disability was caused by or otherwise related to 1) service-connected pes planus and/or 2) service-connected hallux valgus and/or 3) service-connected plantar fasciitis? (c.) If the answer to (c.) is negative, is it at least as likely as not (50 percent probability or more) that the Veteran’s claimed bilateral achilles tendon disability underwent any incremental increase in disability, regardless of its permanence, due to 1) service-connected pes planus and/or 2) service-connected hallux valgus and/or 3) service-connected plantar fasciitis? (d.) Is it at least as likely as not (i.e. a 50 percent chance or greater) that the Veteran’s clamed stomach disability is etiologically-related to the Veteran’s military service? (e.) If the answer to (d.) is negative, is it at least as likely as not (50 percent probability or more) that the Veteran’s claimed stomach disability was caused by or otherwise related to any medications taken for his service-connected conditions? In answering this question, the examiner is asked to specifically address the following pieces of evidence: 1) April 2010 Miami VAMC Physician Emergency Department Note, 2) March 2012 Miami VAMC Mental Health Outpatient Note, 3) April 2012 Miami VAMC Primary Care Note, 4) June 2015 Miami VAMC Addendum. (f.) If the answer to (e.) is negative, is it at least as likely as not (50 percent probability or more) that the Veteran’s claimed stomach disability underwent any incremental increase in disability, regardless of its permanence, due to any medications taken for his service-connected conditions? (g.) Is the Veteran’s claimed blackouts disability attributable to his already service-connected 1) migraine headaches or 2) unspecified anxiety disorder? (h.) If the answer to (g.) is negative, is it at least as likely as not (50 percent probability or more) that the Veteran’s claimed blackouts disability was caused by or otherwise related to 1) service-connected migraine headaches or 2) service-connected unspecified anxiety disorder? (i.) If the answer to (h.) is negative, is it at least as likely as not (50 percent probability or more) that the Veteran’s claimed blackouts disability underwent any incremental increase in disability, regardless of its permanence, due to 1) service-connected migraine headaches or 2) service-connected unspecified anxiety disorder? The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Additional disability due to flareups of musculoskeletal disabilities, even if it cannot be quantified, or an incremental increase in pain might constitute an increase in disability, or aggravation, for the purposes of secondary service connection. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion. The examiner must provide a complete rationale for all opinions expressed. As part of the rationale, the examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). A discussion of the facts and medical principles involved would be of considerable assistance. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. Then, after adjudicating the Veteran’s claims for entitlement to an increased initial rating for 1) bilateral hearing loss, 2) unspecified anxiety disorder, 3) pseudofolliculitis barbae, and claims for entitlement to service connection for 4) bilateral achilles tendon, 5) stomach, and 6) blackouts disabilities, the AOJ should consider all of the evidence of record and readjudicate the Veteran’s claim for TDIU. If the benefits sought are not granted, the AOJ must then issue a Supplemental Statement of the Case (“SSOC”) and allow the Veteran and his attorney an opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Raj, 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 does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.