Citation Nr: 21000301 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-25 624 DATE: January 5, 2021 ORDER Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus has been withdrawn. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a muscle condition is remanded. Entitlement to service connection for a sleep disorder is remanded. Entitlement to service-connection for eczema is remanded. Entitlement to an initial evaluation in excess of 40 percent for service-connected Reiter’s disease is remanded. Entitlement to total disability evaluation based on individual unemployability due to service-connected disability (TDIU) is remanded. Entitlement to nonservice-connected pension benefits is remanded. FINDINGS OF FACT 1. A bilateral hearing loss disability is related to noise exposure in service. 2. On September 9, 2020, at hearing before the Board and prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of the issue of entitlement to service connection for tinnitus is requested. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for withdrawal of the claim of entitlement to service connection for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1990 to June 1991. He also had a period of Reserve service. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony before the Board in September 2020. During the Board hearing, the issue of entitlement to TDIU was raised as part of the Veteran’s increased rating claim pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to service connection for bilateral hearing loss disability The Veteran contends that he is entitled to service connection for bilateral hearing loss. He attributes his hearing loss disability to noise exposure in service. After resolving the benefit of the doubt in favor of the Veteran, the Board finds that service connection for a bilateral hearing loss disability is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303. During his September 2020 Board hearing, the Veteran set forth his duties in service as a tank crewman. He testified that he was exposed to loud noises from the tanks, explosions when the tanks breached minefields, incoming artillery, and mortar rounds while stationed in the Persian Gulf. See BVA Transcript at 14. The Veteran’s DD-214 confirms his military occupational specialty (MOS) as a tank crewman who participated in Operation Desert Shield/Storm and was stationed in Southwest Asia from December 1991 to May 1991. The Board finds that military noise exposure is consistent with the circumstances of his service, as indicated in official military records. See 38 U.S.C. § 1154 (b). Moreover, during the August 2014 post-service VA examination, the Veteran was diagnosed with a bilateral hearing loss disability for VA compensation purposes. 38 C.F.R. §§ 3.303, 3.385. The remaining question is whether the current hearing loss disability is related to any aspect of the Veteran’s military service, to include exposure to loud noise. The Board is aware the August 2014 VA examiner opined hearing loss was not due to military noise exposure because hearing loss was based solely upon word recognition scores. However, the rationale is inadequate as impaired hearing will be considered a disability when speech recognition scores using the Maryland CNC Test are less than 94 percent, as they were in the instant case (64% right ear and 92% left ear). Id. The Board notes VA treatment records confirm the Veteran’s hearing difficulty. Given the evidence set forth above, the Board cannot disassociate the current bilateral hearing loss disability from the conceded noise exposure in service. As such and resolving all reasonable doubt in the Veteran’s favor, service connection for the Veteran’s bilateral hearing loss disability is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to service connection for tinnitus The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the Veteran’s substantive appeal, he indicated that he was no longer appealing the issue of entitlement to service connection for tinnitus. See May 2016 VA Form 9. However, the issue was readjudicated in the February 2018 supplemental statement of the case and certified for appeal to the Board. During the September 2020 Board hearing, the Veteran, through his attorney, once again withdrew the claim for tinnitus. The Veteran testified that he did not understand how the issue was included as an appealed claim. The undersigned informed the Veteran that the issue was going to be removed from his appeal and a decision would not be reached on the merits. The Veteran expressed understanding and consented to the withdrawal. See BVA Transcript at 13. Thus, his withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O’Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, muscle condition, sleep disorder, and eczema; Increased rating for Reiter’s disease Evidence indicates that there may be outstanding relevant VA treatment records. The last VA treatment records associated with the file are dated in January 2018. The Veteran submitted May 2020 and December 2019 treatment notes from the Spokane VA Medical Center indicating that he has continued to receive VA treatment for the disabilities on appeal. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain current medical records. The Board cannot make a fully-informed decision on the issues without VA medical examination and opinion for the reasons set forth as follows. The Veteran claims that his skin disorder is the result of environment exposures during his service in the Persian Gulf War. In support of his claim, he has submitted a December 2019 VA treatment note containing a diagnosis of eczema/dermatitis, onset while serving in Persian Gulf. The Board notes as the Veteran’s eczema is a firm diagnosis it is not considered an undiagnosed illness for purposes of compensation for certain disabilities occuring in Persian Gulf veterans. 38 U.S.C. § 1117 ; 38 C.F.R. § 3.317 (a)(1). The Veteran was previously afforded a VA skin examination in July 2014 and diagnosed with eczema; however, the examiner failed to provide an etiology opinion and the December 2019 treatment note does not constitute a nexus opinion. A remand is necessary to obtain such an opinion. The Veteran maintains that he has a sleep disturbances due to his Persian Gulf War service or in the alternative, caused by his service-connected Reiter’s disease. In support of his appeal, the Veteran submitted an August 2020 statement from Dr. SW indicating the Veteran has been “diagnosed with a sleep disorder which is caused by his Reiter’s disease on an as likely as not basis.” However, no rationale was provided for the opinion rendering it inadequate. The Veteran was afforded a Gulf War examination in 2014 but sleep disturbances were not addressed. The Veteran is service-connected for Reiter’s disease and has testified before the Board that pain and stiffness from the disability has resulted in sleep disturbances. BVA Transcript at 10. The Board finds that a remand is necessary to determine whether the Veteran’s sleep symptoms/disturbances are part of his service-connected Reiter’s disease in order to avoid pyramiding or a sign or symptom of an undiagnosed illness or medially unexplained chronic multisyptoms illness as a result of his Persian Gulf service or in the alternative, if a diagnosed condition, secondary to his service-connected Reiter’s disease. 38 C.F.R. §§ 3.317, 4.14. With regard to his claim for an acquired psychiatric disability, the Veteran clarified his contentions during the September 2020 Board hearing. He testified that he was suffering from anger and depression as a result of impairment caused by his Reiter’s disease. BVA Transcript at 17-18. The Veteran has not been afforded a VA examination to determine the nature and etiology of the claimed psychiatric condition. Such must be accomplished on remand. The Veteran has also claimed service connection for a muscle condition separate and apart from his service-connected Reiter’s disease. In support of his claim, he submitted a copy of a May 2020 rheumatology note indicating he had “HLA B27+ inflammatory spondylarthritis in association with peripheral erosive arthritis.” It is unclear from the evidence of record, whether the Veteran has a muscle condition that is part of his service-connected Reiter’s disease, a sign or symptom of an undiagnosed illness or medially unexplained chronic multisymptom illness as a result of his Persian Gulf service or in the alternative, if a diagnosed condition, secondary to his service-connected Reiter’s disease. 38 C.F.R. §§ 3.317, 4.14. Thus, a remand is necessary to determine the nature and etiology of the claimed muscle condition. Finally, the Veteran was last afforded a VA examination for his Reiter’s disease in 2017. During the September 2020 Board hearing, the Veteran testified that his Reiter’s disease results in incapacitating episodes every two to three months where he is unable to walk or stand to go to the bathroom. BVA Transcript at 8. As result of the Veteran’s contentions of worsening symptoms, and in light of the missing records, a remand for a new VA examination is warranted to assess the current severity level of his service-connected disability. See 38 C.F.R. §§ 3.326, 3.327, 4.1; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Entitlement to TDIU and nonservice-connected pension benefits As a claim for TDIU has been reasonably raised by the record, a remand is warranted for further development. The assignment of rating for the Veteran’s Reiter’s disease and whether service connection is established for an acquired psychiatric disorder, muscle condition, sleep disorder, or eczema could impact whether or not he is entitled to TDIU and/or whether he has a permanent and total disability. For this reason, it would be premature for the Board to address entitlement to TDIU and nonservice-connected pension benefits. Thus, a remand is required. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Develop the issue of entitlement to TDIU. Request the Veteran complete a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) in an attempt to ascertain specific information and circumstances of the Veteran’s last full-time employment, to include his level of education, occupation, type of activities performed, his last day of full-time employment, and the date he became too disabled to work. Request that the Veteran’s last employer complete VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits).  2. Obtain a VA medical opinion from an appropriately qualified clinician to determine the nature and etiology of his claimed skin disability. The examiner must review the claims file and provide a response to the following: whether eczema at least as likely as not had its onset in service or is otherwise related to the Veteran’s service. The complete rationale must be provided for all opinions expressed. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sleep disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. The examiner must provide an opinion regarding whether the Veteran’s sleep symptoms/disturbances are part of his service-connected Reiter’s disease or a sign or symptom of an undiagnosed illness or medially unexplained chronic multisymptom illness as a result of his Persian Gulf service. If the Veteran has a separately diagnosed sleep condition, the examiner must opinion whether is it at least as likely as not (50 percent or greater probability) proximately due to, the result of, or aggravated beyond the natural progression by the service-connected Reiter’s disease. The complete rationale must be provided for all opinions expressed. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. The examiner must provide an opinion regarding whether the Veteran has a currently diagnosed acquired psychiatric disorder, to include, but not limited to depression, and if so, whether it is at least as likely as not (50 percent or greater probability) proximately due to, the result of, or aggravated beyond the natural progression by the service-connected Reiter’s disease. The complete rationale must be provided for all opinions expressed. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any muscle condition. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. The examiner must provide an opinion regarding whether the Veteran has a muscle condition, to include HLA B27+ inflammatory spondylarthritis, and if so, is it at least as likely as not (50 percent or greater probability) proximately due to, the result of, or aggravated beyond the natural progression by the service-connected Reiter’s disease. If the examiner finds there is no separately diagnosed muscle condition, the examiner must opine whether the Veteran’s muscle pain is part of his service-connected Reiter’s disease or a sign or symptom of an undiagnosed illness or medially unexplained chronic multisymptom illness as a result of his Persian Gulf service. The complete rationale must be provided for all opinions expressed. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected Reiter’s disease. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Particularly, the examiner must indicate whether Reiter’s disease has resulted in constitutional manifestations associated with active joint involvement and totally incapacitating; or weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods. Finally, the examiner must opine whether there are any functional limitations associated with, and expected effect on, employment resulting from the Veteran’s service-connected Reiter’s disease on sedentary and physical employment (not including the effects of any non-service connected disabilities). 7. Thereafter, readjudicate the issue on appeal, including entitlement to TDIU, in light of all the evidence of record, to include evidence added to the claims folder after the February 2018 supplemental statement of the case was issued. If upon completion of the above actions, the issues remained denied, the case should be returned to the Board after compliance with appellate procedures DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. L. Wallin, 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.