Citation Nr: 21001774 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 19-18 260 DATE: January 11, 2021 ISSUES 1. Entitlement to service connection for a skin disability (claimed as chronic mycotic fungal infection). 2. Entitlement to an initial compensable disability rating for service-connected chronic sinusitis. 3. Entitlement to a disability rating in excess of 50 percent for service-connected post-traumatic stress disorder (PTSD) with depressive disorder. 4. Entitlement to a disability rating in excess of 10 percent for service-connected tenosynovitis of the right hand (claimed as chronic pain, right hand radical distribution) (a right-hand disability). REMANDED Entitlement to service connection for a skin disability (claimed as chronic mycotic fungal infection) is remanded. Entitlement to an initial compensable disability rating for service-connected chronic sinusitis is remanded. Entitlement to a disability rating in excess of 50 percent for service-connected post-traumatic stress disorder (PTSD) with depressive disorder is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected tenosynovitis of the right hand (claimed as chronic pain, right hand radical distribution) (a right-hand disability) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from October 1986 to September 1988, from November 1990 to June 1991, and from December 2003 to November 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May and June 2016 rating decisions, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran was granted entitlement to service connection for post-traumatic stress disorder with depressive disorder (PTSD) at a 50 percent disability rating, in a rating decision from May 2016. A subsequent rating decision from July 2016 granted service connection for tenosynovitis of the right hand (a right-hand disability) at a noncompensable rating, chronic sinusitis at a noncompensable rating, and denied entitlement to service connection for chronic mycotic fungal infection (a skin disability). The Veteran filed a timely Notice of Disagreement (NOD) in July 2016 and he was issued a statement of the case (SOC). A separate rating decision from March 2018 increased the Veteran’s disability rating for his right-hand disability to 10 percent for the entirety of the appeal period. He then filed a timely NOD in April 2018 and was again issued an SOC. In June 2019 the Veteran filed a timely VA Form 9, appealing “all disabilities” to the Board. The issues were then addressed in separate Board decisions. In a June 2019 Board decision, the Board, in relevant part, denied entitlement to service connection for a skin disorder, denied a compensable rating for chronic sinusitis, and denied a disability rating in excess of 50 percent for PTSD. A subsequent Board decision in September 2019 denied a disability rating in excess of 10 percent for the right-hand disability, however it did grant separate 10 percent disability ratings for both the Veteran’s right-hand middle and right-hand index fingers. A rating decision from November 2019 implemented the Board September 2019 Board decision, granting the Veteran separate disability ratings for painful, limited motion of the right index and middle fingers, each at 10 percent ratings, for the entire period on appeal. The Veteran appealed both of the June and September 2019 Board Decisions to the United States Court of Appeals for Veterans Claims (the Court). In Joint Motion for Partial Remand (JMR) from April 2020, the Court partially vacated the Board’s June 2019 decision, and remanded the issues of entitlement to service connection for a skin disability, an initial compensable disability rating for chronic sinusitis, and a disability rating in excess of 50 percent for PTSD. In a separate JMR from August 2020, the Court partially vacated the September 2019 Board Decision, and remanded the issue of entitlement to a disability rating in excess of 10 percent for the right-hand disability. The favorable findings of the Veteran’s separate 10 percent ratings for his right-hand middle and index fingers were not disturbed. As a result of the Court JMR, the issues identified on the title page have since returned to the Board for additional development and adjudication. The Board finds however that additional evidentiary development is required before the claims on appeal are adjudicated. 1. Entitlement to service connection for a skin disability (claimed as chronic mycotic fungal infection) is remanded. The Veteran has claimed that his skin disability (claimed as chronic mycotic fungal infection) is due to his active duty service. He has also claimed that his skin disability may be due to his service specifically in Southwest Asia. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). Service connection may also be established on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1) (2017). The term “Persian Gulf Veteran” means a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317 (e)(1) (2017). For purposes of this section, a qualifying chronic disability means a chronic disability resulting from an undiagnosed illness, to include chronic medically unexplained multi-symptom illnesses that the Secretary determines under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 C.F.R. § 3.317 (a)(2)(i). The Veteran submitted a private medical opinion from February 2016. In that opinion, the private physician noted that the Veteran’s skin disability was evident “during active duty service [and] should qualify said condition for service connection.” The Veteran was also given a VA examination in June 2016. The Veteran was seen in person, and the examiner indicated that the Veteran’s claims file was reviewed. During the exam, the Veteran stated that his skin disability had begun in the 1990s. the examiner however identified two diagnosable skin disabilities: (1) seborrheic dermatitis, initially diagnosed in 2010, and (2) tinea corporis, initially diagnosed in the 1990s. As it relates to seborrheic dermatitis, the examiner wrote that the disability was not related to the Veteran’s active duty service, because it was diagnosed “several years following military service.” Later in that same exam however, the examiner wrote that “this is during a period of active service but prior to Gulf War service.” The examiner then provided a negative etiological opinion. As identified by the Court in the April 2020 JMR, the June 2016 VA examination is inadequate. To begin, the JMR noted that the June 2016 opinion was unclear, as it identified two separate diagnoses. Furthermore, the opinion then provides only one etiological opinion, and in that opinion, it does not distinguish which diagnosis is being addressed. Apart from the JMR, the Board equally notes that the June 2016 VA examination did not address the private opinion from February 2016. Despite the February 2016 private opinion offering only a brief and conclusory rationale, that opinion should be considered by a VA examiner. Importantly, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). In consideration of the above, the Board finds that the June 2016 VA examination is inadequate. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The Veteran must be scheduled for a new VA examination so an adequate etiological opinion may be rendered. 2. Entitlement to an initial compensable disability rating for service-connected chronic sinusitis is remanded. The Veteran has claimed that his service-connected sinusitis is worse than currently rated. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In evaluating the severity of a certain disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran’s service-connected sinusitis is rated at a noncompensable disability rating under Diagnostic Code (DC) 6512. Under the General Rating Formula for Sinusitis, a noncompensable rating is warranted when sinusitis is detected by X-ray only. A 10 percent rating is warranted for one or two incapacitating sinusitis episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating sinusitis episodes per year characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is warranted when there are three or more incapacitating sinusitis episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating sinusitis episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The maximum evaluation allowable under the general rating formula is 50 percent. A note following this section provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, DC 6512. Turning to the available evidence, the Veteran’s claims file includes a June 2016 VA examination, whereby the Veteran was seen in person and his claims file was reviewed. During the exam, the Veteran reported painful episodes of sinusitis, “2-3 sinus infections per year that require doctor’s visits and antibiotics,” and one incapacitating episode of sinusitis over the past twelve months. Despite the Veteran’s claim, the VA examiner noted that the Veteran had not experienced an incapacitating episode. In the April 2020 Court JMR, the Court identified evidence that was favorable to the Veteran’s claim which indicates that his service-connected sinusitis may be worse than currently rated. Specifically, the Veteran’s claims file includes a February 2018 primary care note whereby the Veteran reported taking “several rounds” of antibiotics for his sinusitis. Following that, a VAMC treatment record from March 2018 notes that the Veteran reported that he treated his sinusitis with medication. In that report, he did not claim to have an incapacitating episode. In a statement from April 2018, the Veteran wrote that he “recently completed antibiotic treatments … that spanned over 2 months.” The Board also notes that in the Veteran’s July 2016 NOD, he wrote that his sinusitis disability had worsened, and he criticized the adequacy of the June 2016 VA examination. Specifically, he wrote that the examination was brief, that the examiner “spent more time looking at her computer that she did examining me,” and that he was “not examined by an ENT or other specialist in this field.” In consideration of the above, the Board finds that it currently lacks medical evidence necessary to make a determination as to the current severity of the Veteran’s service-connected sinusitis. To begin, the June 2016 VA examination was over four years ago, and the Veteran has claimed that his sinuses have worsened since then. The Veteran also stated that the examination was brief, and that it was not conducted by an appropriate specialist in the field. The Board also notes that the June 2016 examiner denied that the Veteran had any incapacitating episodes, despite the claim of the Veteran during that exam. Finally, while subsequent reports do not indicate that the Veteran had incapacitating episodes requiring bed rest as prescribed by a physician, his VAMC records note continued treatment for sinus issues, which may further indicate that his disability has worsened. A new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). Also, where the Veteran claims that a disability is worse than when originally rated, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992). Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the current nature and severity of his service-connected chronic sinusitis. See, Weggenmann v. Brown, 5 Vet. App. 281 (1993); see also, Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). 3. Entitlement to a disability rating in excess of 50 percent for service-connected post-traumatic stress disorder (PTSD) with depressive disorder is remanded. The Veteran has claimed that his service-connected PTSD with depressive disorder is worse than currently rated. The Veteran was given a VA examination in June 2016, yet in the Veteran’s NOD from July 2016, he wrote that the June 2016 VA examination was inadequate, as it was too brief. The Veteran then wrote in his April 2018 Form 9 that he was told during the June 2016 examination, that previous results would instead be used for that mental health evaluation, and that he therefore was given “no exam and [VA has] totally misrated my PTSD.” The Veteran has indicated that the exams do not adequately address all of his symptoms, and that “the BVA has every right to remand my claim for a proper exam.” The Veteran’s request for a subsequent exam due to the worsening of his PTSD symptoms was also acknowledged in the April 2020 Court JMR. Where the record does not adequately reveal the current state of claimant’s disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). See, Weggenmann v. Brown, 5 Vet. App. 281 (1993); see also, Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the current nature and severity of his service-connected PTSD with depressive disorder. 4. Entitlement to a disability rating in excess of 10 percent for service-connected tenosynovitis of the right hand (claimed as chronic pain, right hand radical distribution) (a right-hand disability) is remanded. The Veteran has claimed that his right-hand disability is worse than currently rated. See July 2016 NOD. The Veteran’s most recent VA examination was in June 2016. As noted above, the Veteran has stated that he believes the June 2016 examination was inadequate, insofar as the examination was brief, and that the Veteran’s disabilities were not appropriately examined. Specifically, he wrote in July 2016 that the examiner had me do simple finger movements … she did not check the range of motion of the right thumb which is where most of the pain is coming from and what limits my ability to do things … she did not have my squeeze my hand which is where I have most of the difficulty. The Veteran is competent to report the symptoms he experiences, such as those associated with his right hand. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). As identified by the August 2020 Court JMR, since the June 2016 VA examination, the Veteran’s claims file contains evidence that the right-hand disability may have worsened. Specifically, in April 2018, the Veteran’s physician noted that his tenosynovitis had “deteriorated” and it was “affecting [his] right index finger now.” That examiner also noted that the Veteran had osteoarthritis of the “finger joint of right hand,” which had “deteriorated.” As such, the Court JMR indicated that this evidence, coupled with the Veteran’s claims, demonstrates evidence of possible worsening since the June 2016 VA examination took place. Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the current nature and severity of his service-connected right-hand disability. See, Weggenmann v. Brown, 5 Vet. App. 281 (1993); see also, Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). The matters are REMANDED for the following action: 1. Obtain all outstanding VA and/or private treatment records. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. Should such records exist, associate them with the electronic claims file. 2. Forward the Veteran’s claims file to an appropriate clinician(s) for a VA examination(s) (or telehealth interview(s), review(s) of the record, etc., if an in-person examination(s) is not feasible) to address the current nature and severity of his service-connected PTSD with depressive disorder, his right-hand disability, his chronic sinusitis, as well as his claim of entitlement to service connection for a skin disability. Different examinations should be scheduled with appropriate medical professionals as deemed necessary. The examination for PTSD should be conducted with an appropriate VA psychiatrist. A copy of this remand must be made available to the examiner for review in conjunction with this examination. As it relates to the Veteran’s service-connected chronic sinusitis: (a.) Provide an accurate assessment of the current severity of the Veteran’s service-connected chronic sinusitis. The claims file must be reviewed by the examiner, and any indicated studies should be performed. All appropriate diagnostics should be accomplished, and all clinical findings should be reported in detail. Ensure that the examiner provides all information required for rating purposes. As it relates to the Veteran’s service-connected PTSD with depressive disorder: (b.) Provide an accurate assessment of the current severity of the Veteran’s service-connected PTSD. The claims file must be reviewed by the examiner, and any indicated studies should be performed. All appropriate diagnostics should be accomplished, and all clinical findings should be reported in detail. Ensure that the examiner provides all information required for rating purposes. As it relates to the Veteran’s service-connected right-hand disability: (c.) Provide an accurate assessment of the current severity of the Veteran’s service-connected right-hand disability. The claims file must be reviewed by the examiner, and any indicated studies should be performed. All appropriate diagnostics should be accomplished, and all clinical findings should be reported in detail. Ensure that the examiner provides all information required for rating purposes. As it relates to the Veteran’s skin disability, based on the review of the Veteran’s entire record, the examiner should provide an opinion as to the following: (d.) Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran’s current skin disability (claimed as chronic mycotic fungal infection), is related to his active duty service, to include as a result of his service in Southwest Asia or are otherwise related to any in-service disease, event, or injury? A detailed rationale supporting the examiner’s opinion should be provided. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). In formulating the opinion, the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against. 3. After completing the development noted above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue an SSOC to the Veteran. After they have had an adequate opportunity to respond, return the appeal 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). These claims must be afforded expeditious treatment. The law requires that all claims 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. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.