Citation Nr: 21064525 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 05-26 088 DATE: October 20, 2021 ORDER Service connection for costochondritis (chest pain) is granted. Service connection for tinea versicolor, claimed as skin rash, is granted. REMANDED Service connection for dizziness, also claimed as vertigo, is remanded. Service connection for mild obstructive ventricular impairment is remanded. FINDINGS OF FACT 1. The Veteran's chest pain had its onset in service and has continued since that time. 2. The evidence is in equipoise regarding whether the Veteran's tina versicolor is due to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection of costochondritis (chest pain) are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection of tinea versicolor, claimed as skin rash, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1990 to November 1992. He received the Combat Infantryman Badge for participation in active ground combat during Operation Desert Storm. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before Veterans Law Judge (VLJ) Jacqueline Monroe in February 2008. The Board remanded this case in August 2008, June 2010, May 2017, July 2019, December 2020 Initially, the Board points out that in June 2010, the Board found that the Veteran's claims should be adjudicated in light of implementation of the Persian Gulf War Veterans' Act, promulgated at 38 U.S.C. §1117, as manifestations of "undiagnosed illness." In a May 2017 decision, the Board bifurcated the claims on appeal, denying service connection for the section 1117 aspect of each claim, and remanding, for further development, the matters of entitlement to service connection, on a direct basis, for diagnosed tinea versicolor, mild obstructive ventilatory impairment, vertigo, and musculoskeletal inflammation (chest pain). Service Connection The Veteran seeks service connection for his costochondritis (chest pain) and tinea versicolor. Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active military service. 38 U.S.C. §1110; 38 U.S.C. §3.303. To establish service connection for the claimed disorder, the following criteria must be met: (1) evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. See 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Chest Pain The Board finds that service connection is warranted for the Veteran's chest pain. He has a diagnosis of costochondritis. See August 2011 VA examination. The Board notes there is conflicting conclusions regarding whether the Veteran has a diagnosed condition. See August 2021 VA examination. However, the evidence shows the Veteran has a diagnosed disability during the appeal period. He contends that his chest pain is related to service. Service treatment records show the Veteran had multiple complaints of chest pain while on active duty. See service treatment records. VA treatment records shortly after separation from service show that the Veteran continued to complain of chest pain. See October 1992, June 1998, November 1999 VA treatment records. The evidence shows that he continues to have chest pain since that time. The August 2021 VA examiner issued a negative nexus opinion indicating that the Veteran did not have a chest condition and he was unable to find a definitive diagnosis. The VA examiner also concluded that the Veteran does not have a definite diagnosis, undefined or undiagnosed illness, but only a series of complaints that have no documented physical evidence, and that there is no evidence of musculoskeletal inflammation. This VA medical opinion is entitled to no probative weight because it is based, in part, on an inaccurate factual predicate that the Veteran never received a diagnosis. See Reonal v. Brown, 5 Vet. App. 458 (1993). Notably, throughout the Veteran's medical records, the Veteran makes numerous statements as to chest pain onset and the recurrence of symptoms. As a result, the Board finds most probative the medical evidence of record showing that the Veteran first began experiencing chest pain in service and that this chest pain continued since his time on active duty. Resolving any reasonable doubt in the Veteran's favor, the Board finds service connection is warranted. Tinea Versicolor The Board finds that service connection for tinea versicolor is warranted. The Veteran has a diagnosis of tinea versicolor. See August 2002 VA examination. He competently and credibly reports that he began experiencing skin condition issues in service and that the symptoms of his skin condition have continued since service. See February 2008 Hr'g Tr. He also reports that he had rashes on his body and on his feet while in the Persian Gulf. In April 1995, his brother also provided a lay statement indicating that the Veteran had a rash on his body since he returned from service in November 1992. The Board notes the Veteran was ultimately diagnosed with tinea versicolor in 2002. The Board finds that the Veteran and his brother's lay statements are entitled to probative weight. These lay statements have remained consistent throughout the appeal period, are facially plausible, and have been supported by other evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (when determining whether lay evidence is satisfactory, the Board may properly consider, internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the client). The August 2021 VA examiner issued a negative nexus opinion indicating that the Veteran's tinea versicolor is not related to service. This VA examiner reasoned that warm and humid climates are predisposing factors for tinea versicolor and there is no argument that several of the conditions causing this disease would be present during the Veteran's service in the military and in Southwest Asia. However, the Veteran was not diagnosed with tinea until 2002 (10 years after discharge), so it is unlikely that rash had its onset in or is otherwise related to SW Asia service. This VA medical opinion is partially based on an inaccurate factual predicate. Although, the Veteran's official medical diagnosis was in 2002, the evidence of record show that the Veteran experienced the symptoms of tinea versicolor since service. Given the VA examiner's medical opinion reasoning that the conditions of the Veteran's SW Asia service are predisposing factors to the development of tinea versicolor, the Board finds that it is necessary to resolve any reasonable doubt in the Veteran's favor. Given the Veteran's diagnosis and lay statements indicating the Veteran's tinea versicolor had its onset in service and has continued since that time, the Board finds that service connection is warranted. REASONS FOR REMAND Dizziness The Veteran seeks service connection for dizziness. VA examinations of record indicate that the Veteran does not suffer from vertigo or any dizziness disability that is caused or aggravated by his service-connected tinnitus. However, the August 2021 VA examiner issued a negative nexus opinion, reasoning that the Veteran's dizziness is of an unknown etiology and was diagnosed on 2020 exam based on Veteran's report. There are no medical reports diagnosing vertigo or dizziness. The Veteran's subjective complaints of dizziness are due to cell phone tower. As a result, dizziness due to vertigo is ruled out, the lightheadedness (presyncope)-stress test was negative ruling that disability out. The Veteran does not have disequilibrium because this disability is not consistent with history given by Veteran. However, the VA examiner opined that anxiety is more commonly associated with mental health conditions. Since the Veteran treats his dizziness by applying an aluminum foil hat, the VA examiner stated that he is inclined to associate the dizziness with a mental health condition. The VA examiner goes on to state that this association has not been made by mental health providers and he is not qualified to make that diagnosis. Secondary service connection exists where there is: (1): a current disability that is not already service connected and (2) evidence that a non-service-connected disability is either proximately due to or the result of or aggravated by a service-connected disability. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.310(a). The Veteran is currently service connected for posttraumatic stress disorder (PTSD) with severe depression. As a result, remand is warranted to determine whether the Veteran's dizziness is caused or aggravated by his service-connected PTSD. Mild Ventricular Impairment Unfortunately, the Board finds that remand is necessary. The Veteran seeks service connection for shortness of breath. The August 2021 VA examiner issued a negative nexus opinion indicating that the Veteran's mild ventricular impairment, manifest by shortness of breath is not related to service. In reaching this conclusion, the VA examiner noted that the pulmonary functioning test did not respond to bronchodilatory therapy and thus the Veteran does not suffer from any ventricular impairment disability. It is well established that in multiple prior remands the Board directed the RO to accept as true the Veteran's diagnosis of mild ventricular impairment. See December 2020 Board decision. The Veteran was diagnosed with mild ventricular impairment. He reports that his mild ventricular impairment is related to service because he began having trouble breathing while in Southwest Asia. See February 2008 Hr'g Tr. He reports that post-service the smell of chemicals and fumes induced shortness of breath. See August 2009 VA examination. A Court remand confers on a claimant as a matter of law, the right to compliance with the remand orders. Fossie v. W., 12 Vet. App. 234 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Thus, remand is once again necessary for a new VA medical opinion. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Issue an addendum opinion addressing whether the Veteran's dizziness is caused or aggravated by his service-connected PTSD. In issuing this opinion, the VA examiner should specifically address the August 2021 VA examiner's opinion that anxiety is more commonly associated with mental health conditions. Since the Veteran treats his dizziness by applying an aluminum foil hat, the VA examiner stated that he is inclined to associate the dizziness with a mental health condition. 3. Issue an addendum opinion addressing whether the Veteran's mild obstructive ventricular impairment had its onset in service or is otherwise related to service. The VA examiner MUST accept as true the Board conclusion that the Veteran has a mild obstructive ventricular impairment disorder. In issuing this opinion, the VA examiner should specifically address the Veteran's lay statements regarding in-service onset and continued aggravation of symptoms since service. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ijitimehin, Kemi D. 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.