Citation Nr: 20028866 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 18-44 398 DATE: April 24, 2020 REMANDED Entitlement to service connection for rectal bleeding, to include hemorrhoids, is remanded. Entitlement to service connection for a right knee disorder, to include patellar tendonitis is remanded. Entitlement to service connection for hair loss, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is remanded. Entitlement to service connection for a penile disorder is remanded. Entitlement to service connection for bilateral flatfoot is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression and/or posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a skin disorder is remanded. Entitlement to service connection for memory loss, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is remanded. Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for gingivitis is remanded. Entitlement to service connection for a headache disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is remanded. Entitlement to service connection for a left knee disorder, to include as secondary to a right knee disorder is remanded. Entitlement to service connection for shortness of breath, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is remanded. Entitlement to service connection for a disability manifested by chest pain, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a sleep disorder, to include insomnia, to include as secondary to a low back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from October 1979 to October 1999, and from October 2004 to October 2005. He had active duty service in Kuwait from December 2004 through October 2005. 1. Entitlement to service connection for hair loss, to include as a qualifying chronic disability under 38 C.F.R. § 3.317; entitlement to service connection for memory loss, to include as a qualifying chronic disability under 38 C.F.R. § 3.317; and entitlement to service connection for shortness of breath, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, are remanded. The Veteran contends that he has hair loss, memory loss, and shortness of breath due to his service in the Persian Gulf. The Veteran has not been afforded VA examinations to assess the etiology of his hair loss, memory loss, or shortness of breath. Although the medical evidence in the claims file does not reveal diagnoses pertaining to these claims, hair loss, memory loss, and shortness of breath are symptoms capable of lay observation. Given the Veteran’s active duty service in Kuwait from December 2004 through October 2005 and his lay reports of symptoms which he believes to be manifestations of an undiagnosed disability or medically unexplained chronic multisymptom illness, the Veteran should be provided with a VA examination to determine whether his hair loss, memory loss, or shortness of breath constitute an undiagnosed illness or a medically unexplained chronic multisymptom illness. Additionally, the Veteran contends that his memory loss is secondary to an acquired psychiatric disability and that his hair loss was caused by the heat of the sun which killed the hair roots in his head while in Kuwait. The examiner’s opinion should also address these theories of entitlement. 2. Entitlement to service connection for rectal bleeding, to include hemorrhoids; entitlement to service connection for a right knee disorder, to include patellar tendonitis; entitlement to service connection for a penile disorder; entitlement to service connection for a skin disorder; entitlement to service connection for a low back disorder; entitlement to service connection for gingivitis; entitlement to service connection for a headache disorder; entitlement to service connection for a disability manifested by chest pain; and entitlement to service connection for bilateral flat feet are remanded. Review of the Veteran’s service treatment records reveals complaints of and treatment for hemorrhoids, right knee patellar tendonitis, a skin disorder of the penis, low back pain, gingivitis, headaches, and chest pain. The Veteran has provided lay testimony explaining that these symptoms have continued unabated since service discharge. In light of the Veteran’s testimony, the Veteran should undergo VA examinations to determine the existence and etiology of his claimed disabilities. Additionally, during his February 2020 hearing before the Board, the Veteran testified that he had flat feet which he believed to have been caused by his duties during service. He noted that he often had pain in his body, including his feet, after a long day, and that he was given Motrin for his aches and pains. Although the medical evidence of record does not document a diagnosis of bilateral flat feet, the Veteran is competent to report symptoms capable of lay observation, such as pain in his feet. Also, he is competent to report that he had pain in his feet during service for which he was treated with Motrin. Based on the Veteran’s lay statements, he should undergo a VA examination to assess the existence and etiology of his alleged bilateral flat feet. 3. Entitlement to service connection for an acquired psychiatric disorder, to include depression and/or posttraumatic stress disorder (PTSD) is remanded. The Veteran contends that he has PTSD and/or depression, and that this acquired psychiatric disability was caused by an in-service personal trauma. Specifically, he alleges that, during service, he received death threats in connection with his official duties investigating fraud, and that he truly fears for his life. He noted that his superior officer committed suicide in connection with the investigation. During his February 2020 hearing before the Board, he explained that he was referred by a VA psychologist to see a VA psychiatrist for PTSD assessment, but that he was unable to schedule an appointment. The Veteran’s stressor statements are uncorroborated by the evidence currently in the claims file. However, the present case falls within the category of situations in which it is not unusual for there to be an absence of service records documenting the event which the Veteran alleges. See, e.g., Patton v. West, 12 Vet. App. 272 (1999). Additionally, the relevant regulations stipulate that, if a PTSD claim is based on in-service personal assault, evidence from sources other than a veteran’s service records may corroborate an account of the stressor incident. 38 C.F.R. § 3.304(f)(5). The United States Court of Appeals for the Federal Circuit (Federal Circuit) observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting “medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated.” See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the United States Court of Appeals for Veterans Claims (Court) erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton, 12 Vet. App. at 280 (rejecting the requirement that “something more than medical nexus evidence is required for ‘credible supporting evidence’” in personal-assault cases). Based on the foregoing, the Veteran should be afforded a VA examination to determine whether he meets the diagnostic criteria for PTSD, and if so, the likelihood that the alleged stressor occurred. Additionally, the VA examiner should provide an opinion as to whether any of the other psychiatric disorders diagnosed in the record, including anxiety and depression, are etiologically related to the Veteran’s active duty service, to include the reported in-service event. 4. Entitlement to service connection for a left knee disorder, to include as secondary to a right knee disorder and entitlement to service connection for a sleep disorder, to include insomnia, to include as secondary to a low back disorder, are remanded. Initially, the Board notes that the Veteran’s claim for entitlement to service connection for a left knee disorder is intertwined with is claim for entitlement to service connection for a right knee disorder, and his claim for entitlement to service connection for a sleep disorder is intertwined with his claim for entitlement to service connection for a low back disorder, as the Veteran contends that his left knee disorder and sleep disorder are secondary to his right knee disorder and low back disorder, respectively. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). If the Veteran’s claims for entitlement to service connection for a right knee disorder and/or entitlement to service connection for a low back disorder are granted, the RO should provide the Veteran with a VA examination to determine whether his left knee disorder was caused or aggravated by his right knee disorder and whether he has a sleep disorder that was caused or aggravated by his low back disorder. 5. Entitlement to service connection for sleep apnea is remanded. Review of the Veteran’s claims file reflects that he was first diagnosed with sleep apnea after a March 2015 polysomnogram. While the Veteran’s service treatment records do not show complaints of or treatment for sleep apnea during service, the Veteran has provided competent lay testimony that he experienced trouble sleeping, snoring, and teeth grinding during service and continuously since service discharge. In light of the Veteran’s testimony, he should be provided with a VA examination to determine whether his sleep apnea is related to his in-service symptoms, to include whether it had its onset during service. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the etiology of his hair loss, memory loss, and shortness of breath. After a thorough review of all evidence in the claims file, to include the Veteran’s service treatment records, the post-service treatment records, and the Veteran’s lay statements, the examiner should address the following: (a.) Can the Veteran’s hair loss, memory loss, and/or shortness of breath be attributed to a known clinical diagnosis (other than a symptom-based diagnosis)? (b.) For any diagnosed disability, the examiner is asked to opine whether it is at least as likely as not (e.g., a 50 percent probability or greater) that the Veteran’s disability was caused by or incurred during service, to include whether it first manifested during service. i. With regard to hair loss, the examiner should discuss whether the Veteran’s hair loss was caused by damage to his hair roots and/or follicles by the extreme sun in Kuwait. ii. With regard to memory loss, the examiner should provide an opinion as to whether it was caused or aggravated by an acquired psychiatric disability. (c.) Are the Veteran’s hair loss, memory loss, and/or shortness of breath a manifestation of: (i) an undiagnosed illness; (ii) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology; (iii) a diagnosable chronic multisymptom illness with a partially explained etiology; or (iv) a disease with a clear and specific etiology? Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. A complete rationale for all opinions must be provided. The examiner is advised that the Veteran is competent to report observable symptomatology. A complete rationale for all opinions must be provided. 2. Provide the Veteran with a VA examination by an appropriate physician to determine the existence and etiology of all hemorrhoids or rectal bleeding disorders, right knee disorders, skin disorders of the penis, low back disorders, gingivitis or gum disorders, headache disorders, and disorders manifested by chest pain. The Veteran’s claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. The examiner must state all diagnosed hemorrhoid or rectal bleeding disorders, right knee disorders, skin disorders of the penis, low back disorders, gingivitis or gum disorders, headache disorders, and disorders manifested by chest pain found now or at any time during the appeal period. Based upon a complete review of the evidence of record, the VA examiner must state whether it is at least as likely as not (i.e., a 50 percent probability or more) that any hemorrhoid or rectal bleeding disorders, right knee disorders, skin disorders of the penis, low back disorders, gingivitis or gum disorders, headache disorders, and disorders manifested by chest pain currently diagnosed or diagnosed during the pendency of the Veteran’s claims were caused or incurred as a result of the Veteran’s active duty service. A complete rationale for all opinions must be provided. The examiner must consider and discuss all pertinent evidence in the claims file, to include the Veteran’s lay statements and testimony regarding in-service and post-service symptomatology. Also, the examiner is advised that the Veteran is competent to report observable symptomatology. If a chest pain disorder and/or a headache disorder are not diagnosed, the examiner should state whether the Veteran’s chest pain and/or headache symptoms could be attributed to a known clinical diagnosis (other than a symptom-based diagnosis). If not, the examiner should provide an opinion as to whether the chest pain and/or headaches are a manifestation of: (i) an undiagnosed illness; (ii) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology; (iii) a diagnosable chronic multisymptom illness with a partially explained etiology; or (iv) a disease with a clear and specific etiology. A complete rationale should be provided. 3. Provide the Veteran with a VA examination by an appropriate physician to determine the existence and etiology of his obstructive sleep apnea. The Veteran’s claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, the VA examiner must state whether it is at least as likely as not (i.e., a 50 percent probability or more) that obstructive sleep apnea was caused or incurred as a result of the Veteran’s active duty service. A complete rationale for all opinions must be provided. The examiner must consider and discuss all pertinent evidence in the claims file, to include the Veteran’s lay statements and testimony regarding in-service and post-service symptomatology. Also, the examiner is advised that the Veteran is competent to report observable symptomatology. 4. Provide the Veteran with a VA examination to determine the existence and etiology of his PTSD, and any other diagnosed psychiatric disorder. A copy of this Remand and the entire claims file must be made available to and reviewed the VA examiner. Pertinent documents should be reviewed, including service treatment records, post-service treatment records, and the statements and testimony of the Veteran with respect to his claimed stressors. All necessary diagnostic testing should be conducted and commented upon by the examiner. If PTSD is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran’s PTSD was caused by his reported in-service stressors of receiving death threats and/or the suicide of his supervising officer. In making such a determination, the examiner is requested to review the historical records, including evidence that might reflect that the claimed stressor actually occurred during military service, and clearly identify the particular records which are felt to provide corroboration of the incident(s), and give an adequate rationale for why it is felt that such records establish that the stressor actually occurred during military service. Last, the examiner should provide an opinion as to whether any other diagnosed psychiatric disorder, to include anxiety and depression, are related to the Veteran’s active duty service, to include the reported in-service stressor. All opinions should be supported by a clear rationale, which should include a discussion of the specific evidence on which the opinion is based. 5. If service connection for a right knee disorder is granted, provide the Veteran with a VA examination by an appropriate physician to determine the etiology of his left knee disorder. The Veteran’s claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, to include the Veteran’s lay statements, the VA examiner must provide the following opinions: (a.) Is it at least as likely as not (i.e., a 50 percent probability or more) that the Veteran’s left knee disorder was caused by or incurred during the Veteran’s active duty service? (b.) Is it at least as likely as not that the Veteran’s left knee disorder is proximately due to, the result of, or aggravated by the Veteran’s service-connected right knee disorder? Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. A complete rationale for all opinions must be provided. The examiner is advised that the Veteran is competent to report symptomatology observed either during service or after service discharge. 6. If service connection for a low back disorder is granted, provide the Veteran with a VA examination by an appropriate physician to determine the etiology of his sleep disorder, claimed as insomnia with tingling in the arms and legs. The Veteran’s claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, to include the Veteran’s lay statements, the VA examiner must provide the following opinions: (a.) Is it at least as likely as not (i.e., a 50 percent probability or more) that the Veteran’s sleep disorder was caused by or incurred during the Veteran’s active duty service? (Continued on the next page)   (b.) Is it at least as likely as not that the Veteran’s sleep disorder is proximately due to, the result of, or aggravated by the Veteran’s service-connected low back disorder? Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. A complete rationale for all opinions must be provided. The examiner is advised that the Veteran is competent to report symptomatology observed either during service or after service discharge. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Katz, 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.