Citation Nr: 21002849 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 14-08 323 DATE: January 15, 2021 REMANDED Entitlement to service connection for muscle aches, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 C.F.R. § 3.317, is remanded. Entitlement to service connection for a respiratory disability, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 C.F.R. § 3.317, is remanded. Entitlement to service connection for a skin disability is remanded. Entitlement to an initial rating higher than 30 percent for his acquired psychiatric disability is remanded. Entitlement to a rating higher than 40 percent for a lumbar spine disability (degenerative arthrosis and facet arthropathy of the lumbar spine) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from July 1980 to July 2000. These matters are on appeal from a July 2012, April 2013, and August 2017 rating decisions. In October 2018, these matters were remanded by the Board for further development. Service Connection Claims 1. Muscle aches and respiratory disability The Veteran contends that he has muscle aches and a respiratory disability, including as due to undiagnosed illness, that are related to his service. In October 2018, the Board remanded the claims for an etiological opinion as to whether the Veteran’s symptoms could be attributed to a diagnosis. As noted in the November 2020 Appellant’s Post-Remand Brief, on February 2019 VA Gulf War General Medical examination the medical officer stated that the Veteran informed her of upcoming appointments with cardiology and rheumatology for evaluation of his symptoms. She explained that at the time of examination the Veteran did not undergo an in-depth evaluation for his symptoms and that it would be poor medical judgment to “render causation as due to environmental exposure” in Southwest Asia. Since it does not appear that the Veteran was afforded an adequate examination, and to afford a medical officer an opportunity to consider any outstanding cardiology and/or rheumatology reports, these claims must be remanded for further development. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268 (1998). 2. Skin disability The Veteran contends that he has pseudofolliculitis barbae that is related to his service. In October 2018, the Board remanded the claim for an etiological opinion as to whether his currently diagnosed pseudofolliculitis barbae is related to his in-service diagnosis. Pursuant to the Board’s remand, in a February 2019 VA medical opinion a medical officer opined that the claimed skin disability was not related to his service based on the rationale that there was no clinical evidence of folliculitis or pseudofolliculitis barbae on examination. The medical officer stated that the disability in 1999 was not evident on examination. However, in the November 2020 Appellant’s Post-Remand Brief, the Veteran’s representative asserted that the medical officer did not properly consider the Veteran’s flare-ups of pseudofolliculitis barbae since he was not having a flare-up at the time of the examination. In Ardison v. Brown, 6 Vet. App. 405 (1994) and Bowers v. Brown, 2 Vet. App. 675, 676 (1992), the Court held that whenever possible, examinations of skin disorders should be made when most disabling (e.g. during flare-ups). Given such, the Veteran should be informed that he may provide colored pictures of such disability, as well as may have an examination scheduled during the active phase of his pseudofolliculitis barbae, to the extent feasible. See Ardison, supra; Barr, supra; Stegall, supra. Increased Rating Claims 1. Psychiatric disorder The Veteran contends that his service-connected psychiatric disorder is more severe than his rating indicates. On February 2019 VA psychiatric examination, the medical officer did not find an increase in severity for his psychiatric disability. However, VA treatment records dated in November 2019 show that he reported suicidal ideation three to four months prior. In December 2019, he was depressed and tearful. His mood was more depressed than anxious and he complained of panic attacks. Since these records suggest that that the Veteran’s psychiatric disorder may have worsened since the 2019 VA examination, his psychiatric disorder rating claim should be remanded for a new VA examination to assess the current severity of this disability. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); VAOPGCPREC 11-95 (1995). 2. Back disability The Veteran contends that his service-connected back disability is more severe than his rating indicates. Pursuant to the Board’s October 2018 remand, on February 2019 VA back condition DBQ examination, the Veteran complained of flare-ups of his back disability including increased pain. He reported functional loss or impairment of the back during prolonged sitting or walking. However, the medical officer failed to describe functional loss in terms of range of motion. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), an examiner must provide an opinion regarding additional range of motion loss due to pain, would require a remand for a new VA examination. Since the February 2019 VA examination does not comply with the requirements of Sharp the Veteran’s back disability claim should be remanded for a new examination which includes an assessment of the functional loss during flare-ups, expressed in an estimate of motion loss in terms of degrees. The matters are REMANDED for the following actions: 1. Obtain all outstanding VA medical records related to the Veteran’s muscle aches, respiratory disability, skin disorder, psychiatric disorder, and lumbar spine disability, to specifically include any records related to cardiology and rheumatology appointments, dated since April 2020. All records and/or responses received should be associated with the claims file (the Veteran himself can also submit all record he believes to be pertinent). 2. Schedule the Veteran for VA examinations by an examiner, other than the February 2019 VA examiner, regarding the nature and etiology of the Veteran’s muscle aches and respiratory symptoms. The claims file, including a copy of the October 2018 remand and this remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. The examiner should provide the following opinion(s): a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s muscle aches and respiratory problems, can be attributed to known clinical diagnoses? b) If so, is it at least as likely as not (50 percent probability or greater) that any current disorder(s) manifested by complaints of muscle aches and respiratory symptoms had their onset in or are etiologically-related to the Veteran’s active duty service? c) If the Veteran’s muscle aches and respiratory problems cannot be attributed to known clinical diagnoses, is it at least as likely as not (50 percent probability or greater) that the Veteran’s symptoms are the result of an undiagnosed illness or medically unexplained chronic multi symptom illness (e.g., chronic fatigue syndrome, fibromyalgia, or irritable bowel syndrome)? The examiner is asked to consider and discuss as necessary the pertinent evidence of record to include the Veteran’s lay statements and complaints concerning the onset of his muscle aches and respiratory problems, including those made to medical providers and as noted in the November 2020 Appellant’s Post-Remand Brief. The Board, by this remand, makes no determination, expressed or implied, concerning the credibility of any statements on file. The report of examination should include the complete rationale for all opinions expressed. The phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather 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 that conclusion as it is to find against it. If an opinion cannot be rendered without resorting to speculation, the examiner should explain why it would be speculative to respond. 3. Schedule the Veteran for VA examinations by an examiner, other than the September 2019 VA examiner, regarding the nature and etiology of the Veteran’s claimed skin disorder, claimed as pseudofolliculitis barbae. The claims file, including a copy of the October 2018 remand and this remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. The examiner should provide the following opinion: Is it at least as likely as not (a 50 percent probability or greater) that any skin disorder, to specifically include pseudofolliculitis barbae, diagnosed at any time during the course of the appeal, had its onset in or is etiologically-related to the Veteran’s active duty service? The examiner is asked to consider and discuss as necessary the pertinent evidence of record to include the Veteran’s lay statements and complaints concerning his skin disorder, including those made to medical providers and as noted in the November 2020 Appellant’s Post-Remand Brief. The Board, by this remand, makes no determination, expressed or implied, concerning the credibility of any statements on file. The report of examination should include the complete rationale for all opinions expressed. The phrase “at least as likely as not” does not mean within the realm of medical possibility, but rather 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 that conclusion as it is to find against it. If an opinion cannot be rendered without resorting to speculation, the examiner should explain why it would be speculative to respond. 4. Schedule the Veteran for a VA examination, to ascertain and evaluate the current level of severity of his service-connected psychiatric disorder. All indicated studies and tests should be performed. The claims file, including a copy of the October 2018 remand and this remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. (Continued on the next page)   5. Schedule the Veteran for a VA examination, to ascertain and evaluate the current level of severity of his service-connected lumbar spine disability. All indicated studies and tests should be performed. The claims file, including a copy of the October 2018 remand and this remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. To the extent possible the examiner also must estimate any additional functional loss caused by the Veteran’s flare-ups. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), or a deficiency in the record (additional facts are required). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.