Citation Nr: 21069682 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-27 535A DATE: November 19, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), major depressive disorder (MDD), and insomnia, is remanded. Entitlement to service connection for a thyroid disability is remanded. Entitlement to service connection for a bilateral ankle disability is remanded. Entitlement to service connection for bilateral flat feet is remanded. Entitlement to service connection for allergies is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to an initial compensable rating for exophthalmos is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1995 to May 1998, from August 23, 2004 to September 30, 2004, from October 18, 2004 to April 14, 2005, from April 25, 2005 to September 30, 2005, from August 26, 2006 to September 30, 2006, from October 10, 2006 to April 15, 2007, from May 1, 2007 to September 30, 2007, from October 1, 2007 to January 31, 2008, from February 19, 2008 to September 30, 2008, and from July 9, 2010 to September 30, 2010. In February 2016 and August 2018, hearings were held before Decision Review Officers (DROs) at the Agency of Original Jurisdiction (AOJ), and a transcript of each of the hearings is associated with the record. In March 2019, a videoconference hearing was held before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the record. From the date of the hearing, the record was held open for 30 days in order to allow for the submission of additional evidence for consideration. In December 2019, the case was remanded for additional development. After the Veteran was notified in a May 2020 letter that his appeal had been transferred back to the Board, the Veteran submitted a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) in July 2021 wherein he attempted to change his representative to Texas Veterans Commission. In August 2021, the Board sent the Veteran a letter notifying him that, because his appeal had already been certified to the Board for more than 90 days, he must file a motion for good cause with the Board in order to change his representative in accordance with 38 C.F.R. § 20.1305. Because the Veteran did not file a good cause motion to change his representative as required under 38 C.F.R. § 20.1305, his July 2021 request for such a change is not valid. In October 2021, the Veteran submitted another VA Form 21-22 wherein he attempted to change his representative to The American Legion. Because he once again did not file a good cause motion to change his representative as required under 38 C.F.R. § 20.1305, his October 2021 request for such a change is not valid. In light of the foregoing, the Board continues to recognize attorney Adam G. Werner as the Veteran's validly appointed representative. 1. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, MDD, and insomnia. The Veteran contends that he currently has an acquired psychiatric disability (to include PTSD, MDD, and insomnia) which began during his active military service and has continued to the present. Alternatively, he contends that his claimed acquired psychiatric disability may be secondary to his service-connected disabilities (which at the present time are asthma with obstructive sleep apnea, migraine headaches, tinnitus, hypertension, right hamstring strain, left ear hearing loss, exophthalmos, and erectile dysfunction). Throughout the appeal period, the Veteran has described experiencing an in-service stressor event during a training mission while he was stationed at Fort Lewis, Washington with the 14th Engineer Battalion in February 1998, when a Claymore mine allegedly exploded approximately one foot from his head. His service records do not document this incident. In February 2014, VA issued a formal finding of a lack of information required to corroborate this stressor event, based upon the lack of documentation in his service records; however, despite the Veteran providing details regarding the date, the location, and his unit at the time of this alleged incident on a November 2013 VA Form 21-0781a, the AOJ did not take all necessary action to attempt to verify this incident through official sources. Pursuant to the Board's December 2019 remand, the Veteran underwent a VA psychiatric examination in February 2020. At that examination, he described his claimed in-service stressor involving the training mission explosion. The VA examiner diagnosed the Veteran with PTSD and MDD. In an accompanying February 2020 addendum, the VA examiner opined that it was at least as likely as not that the Veteran's PTSD and MDD were incurred in, caused by, or related to his claimed in-service stressor of the training mission explosion, with the rationale being that the Veteran's post-service VA treatment records indicated that he was treated and diagnosed with MDD and PTSD, and that his current symptoms met the DSM-5 diagnostic criteria for PTSD due to his claimed military stressor. However, the rationale for this opinion relied on the notion that the Veteran's in-service stressor event was verified; at the present time, VA has not verified this stressor event. On remand, after any outstanding treatment records have been associated with the claims file, all necessary action must be taken to verify through official sources the Veteran's alleged in-service stressor event of the training mission explosion while he was stationed at Fort Lewis, Washington with the 14th Engineer Battalion in February 1998. Thereafter, if and only if this stressor event cannot be verified, then an addendum medical opinion should be obtained in order to address the theory of secondary service connection raised with regard to any current acquired psychiatric disability. 2. Entitlement to service connection for a thyroid disability. The Veteran contends that he currently has a thyroid disability which began during his active military service and has continued to the present. Alternatively, he contends that his claimed thyroid disability may be secondary to his claimed acquired psychiatric disability [for which an April 2019 positive nexus opinion by a private provider is of record, but such opinion relies on an unconfirmed thyroid diagnosis, and the Veteran does not currently have a service-connected acquired psychiatric disability]. Pursuant to the Board's December 2019 remand, the Veteran underwent a VA thyroid examination in February 2020. At that examination, the Veteran reported that his date of onset of symptoms was 2004 when he started to have bulging eyes, and that his condition had stayed the same since onset with the current symptom being bulging eyes. [The Veteran is currently service-connected for the eye disability of exophthalmos (i.e., bulging eyes.)] The VA examiner noted that the Veteran did not have (and had never had) a diagnosis of a thyroid or parathyroid condition, and also specifically noted that the Veteran did not have a diagnosis of thyroiditis. The VA examiner further noted that a January 2016 private thyroid ultrasound was normal and that the current February 2020 thyroid laboratory testing showed normal results for TSH, T4, and T3. In an accompanying February 2020 addendum, the VA examiner opined that there was no objective evidence found on the current examination to warrant or support a diagnosis related to the claimed thyroid condition, with the rationale being that, despite the notation of thyroiditis on the Veteran's VA problem list [including in October 2019], all of his thyroid lab work had been normal. However, this opinion relied solely on the results of thyroid function tests (for TSH, T4, and T3), with no other contemporaneous diagnostic testing performed (such as thyroid antibody tests, erythrocyte sedimentation rate, or radioactive iodine uptake), and with no ultrasound performed since January 2016. On remand, after any outstanding treatment records have been associated with the claims file, a new examination should be obtained with all appropriate diagnostic testing and a medical opinion in order to address the theory of service connection raised with regard to any current thyroid disability. 3. Entitlement to service connection for a bilateral ankle disability. The Veteran contends that he currently has a bilateral ankle disability which began during his active military service and has continued to the present. Alternatively, he contends that his claimed bilateral ankle disability may be secondary to his service-connected right hamstring strain. Pursuant to the Board's December 2019 remand, the Veteran underwent a VA ankle examination in February 2020. At that examination, the Veteran reported that his date of onset of symptoms was 1997 when he started to have bilateral ankle pain due to wear and tear, and that his condition had worsened since onset with the current symptom being constant bilateral ankle pain. It was noted that September 2015 VA x-rays of his bilateral ankles were normal, but there was no indication that any contemporaneous imaging studies were performed in conjunction with the current examination. The VA examiner diagnosed the Veteran with bilateral ankle strain. In an accompanying February 2020 addendum, the VA examiner opined that it was less likely than not that the Veteran's bilateral ankle disability's onset was during his active service or was caused by service, with the rationale being that his active duty service treatment records (STRs) did not show any chronic and ongoing treatment for his bilateral ankle disability, that on current examination there was no objective evidence to warrant or support a diagnosis of bilateral sinus tarsi (which had been diagnosed by a private provider in 2012), and that the currently diagnosed bilateral ankle strain was unrelated to the previous diagnoses and unrelated to service. However, the rationale for this opinion did not consider or address the Veteran's allegations of having continuous bilateral ankle pain ever since his active duty service. The VA examiner also opined that it was less likely than not that the Veteran's bilateral ankle disability was caused or aggravated (i.e., worsened beyond normal progression) by his service-connected right hamstring strain, with the rationale being that "[t]here is no medical basis in this Veteran for his service-connected right hamstring strain to cause or aggravate his currently diagnosed bilateral ankle strain." However, no further explanation as to what would constitute an adequate medical basis for either causation or aggravation was provided. On remand, after any outstanding treatment records have been associated with the claims file, a new examination should be obtained with all appropriate diagnostic testing and a medical opinion in order to adequately address the theories of service connection raised with regard to any current bilateral ankle disability. 4. Entitlement to service connection for bilateral flat feet. The Veteran contends that he currently has bilateral flat feet which began during his active military service and have continued to the present. Alternatively, he contends that his claimed bilateral flat feet may be secondary to his service-connected right hamstring strain. Pursuant to the Board's December 2019 remand, the Veteran underwent a VA foot examination in February 2020. At that examination, the Veteran reported that his date of onset of symptoms was 1997 when he started to have pain on the bottom of both of his feet and on the lateral part as well, and that his condition had worsened since onset with the current symptom being constant bilateral foot pain. There was no indication that any contemporaneous imaging studies were performed in conjunction with the current examination. The VA examiner diagnosed the Veteran with bilateral flat feet (pes planus). In an accompanying February 2020 addendum, the VA examiner opined that it was less likely than not that the Veteran's bilateral pes planus's onset was during his active service or was caused by service, with the rationale being that his active duty STRs did not show any chronic and ongoing treatment for his bilateral pes planus. However, the rationale for this opinion did not consider or address the Veteran's allegations of having continuous bilateral foot pain ever since his active duty service. The VA examiner also opined that it was less likely than not that the Veteran's bilateral pes planus was caused or aggravated (i.e., worsened beyond normal progression) by his service-connected right hamstring strain, with the rationale being that "[t]here is no medical basis in this Veteran for his service-connected right hamstring strain to aggravate his claimed pes planus." However, no further explanation as to what would constitute an adequate medical basis for aggravation was provide, and no rationale was provided with regard to causation. On remand, after any outstanding treatment records have been associated with the claims file, a new examination should be obtained with all appropriate diagnostic testing and a medical opinion in order to adequately address the theories of service connection raised with regard to any current bilateral flat feet disability. 5. Entitlement to service connection for allergies. The Veteran contends that he currently has allergies which began during his active military service and have continued to the present. Alternatively, he contends that his claimed allergies may be secondary to his service-connected asthma. Pursuant to the Board's December 2019 remand, the Veteran underwent a VA nose and sinus examination in February 2020. At that examination, the Veteran reported that his date of onset of symptoms was 2004 when he started to have watery eyes and runny nose, and that his condition had stayed the same since onset with the current symptoms being watery eyes and runny nose. It was noted that a November 2006 private CT scan of his orbits had shown minimal mucosal thickening within the floors of the maxillary sinuses bilaterally, but there was no indication that any contemporaneous imaging studies were performed in conjunction with the current examination. The VA examiner diagnosed the Veteran with allergic rhinitis. In an accompanying February 2020 addendum, the VA examiner opined that it was less likely than not that the Veteran's allergies (diagnosed as allergic rhinitis) had their onset during his active service, with the rationale being that his active duty STRs did not show any chronic and ongoing treatment for allergic rhinitis and that the November 2006 CT scan "was an incidental finding without any clinical signs documented to support." However, the rationale for this opinion did not consider or address the Veteran's allegations of having continuous symptoms of allergies ever since his active duty service. The VA examiner also opined that it was less likely than not that the Veteran's allergies (diagnosed as allergic rhinitis) were caused or aggravated (i.e., worsened beyond normal progression) by his service-connected asthma, with the rationale being that a September 2016 private medical opinion (indicating a link between the Veteran's allergies and his history of asthma in service, but based solely on the rationale that "it is very well-known in the literature that there is significant overlap in these 2 medical conditions" with no Veteran-specific reasoning) and articles submitted by the Veteran in 2019 (suggesting a general link between allergic rhinitis and asthma, but not specific to the Veteran's case) were reviewed and "may support correlation but not causation" with respect to the Veteran's service-connected asthma and claimed allergies, but that "the literature does not indicate that Asthma has been associated with causing rhinitis." However, no rationale was provided with regard to aggravation. On remand, after any outstanding treatment records have been associated with the claims file, a new examination should be obtained with all appropriate diagnostic testing and a medical opinion in order to adequately address the theories of service connection raised with regard to any current allergy disability. 6. Entitlement to service connection for GERD. The Veteran contends that he currently has GERD secondary to his service-connected asthma [for which two February 2019 negative nexus opinions by a VA provider one addressing causation and one addressing aggravation are of record]. Alternatively, he contends that he currently has GERD secondary to the medications (including non-steroidal anti-inflammatory drugs (NSAIDs)) taken for his service-connected migraine headaches. Pursuant to the Board's December 2019 remand, the Veteran underwent a VA stomach examination in February 2020. At that examination, the Veteran reported that his date of onset of symptoms was 2006 when he started to have heartburn and regurgitation, and that his condition had stayed the same since onset with the current symptoms being heartburn, regurgitation, abdominal pain, and mild nausea. The VA examiner noted that the Veteran did not have (and had never had) a diagnosis of a stomach or duodenum condition, and also specifically noted that the Veteran did not have a diagnosis of gastritis. The VA examiner further noted that a June 2016 VA esophagogastroduodenoscopy (EGD) had shown GERD but no gastritis. The VA examiner opined that there was no objective evidence to warrant or support a diagnosis related to the conditions noted on the stomach disability benefits questionnaire (DBQ), and noted: "All objective evidence is best associated with the Veteran[']s Esophageal condition. The condition is outside the scope of the Stomach DBQ and was thus not fully evaluated." In an accompanying February 2020 addendum, the VA examiner opined that it was less likely than not that the Veteran's use of NSAIDs for his service-connected migraine headaches caused or aggravated (i.e., worsened beyond normal progression) his claimed GERD, with the rationale being that, while GERD is known to be exacerbated by NSAID use, the Veteran's June 2016 EGD noted normal esophageal mucosa, and that articles submitted by the Veteran in 2018 (suggesting a general link between GERD and migraine headache treatment) were "about correlation and not causation." However, this opinion relied solely on the results of the June 2016 EGD with no contemporaneous testing performed. On remand, after any outstanding treatment records have been associated with the claims file, a new examination should be obtained with all appropriate testing and a medical opinion in order to adequately address the theory of secondary service connection raised with regard to any current GERD disability. 7. Entitlement to service connection for a lumbar spine disability. 8. Entitlement to service connection for a right knee disability. 9. Entitlement to service connection for a left knee disability. The Veteran contends that he currently has a lumbar spine disability, a right knee disability, and a left knee disability which each began during his active military service and have continued to the present [for which negative nexus opinions by a VA provider are of record for his lumbar spine (in February 2019) and for his knees (in February 2019)]. Alternatively, he contends that his claimed lumbar spine disability, right knee disability, and left knee disability may each be secondary to his claimed bilateral ankle disability and his claimed bilateral flat feet. Because a decision on the bilateral ankle and bilateral flat feet service connection issues could significantly impact a decision on the lumbar spine and right and left knee service connection issues, the issues are inextricably intertwined. A remand of the lumbar spine, right knee, and left knee claims is required. See Harris v. Derwinski, 1 Vet. App. 181 (1991). 10. Entitlement to an initial compensable rating for exophthalmos. Pursuant to the Board's December 2019 remand, the Veteran underwent a VA eye examination in February 2020. At that examination, it was noted that he had never had eye surgery, but that orbital decompression surgery in both eyes was scheduled. Thereafter, in an October 2020 written submission, the Veteran stated: "I have recently gone through eye surgery in 2020 which is service connected and will have more eye operations in 2021." On remand, after all outstanding treatment records have been associated with the claims file, a new examination should be scheduled to ascertain the current level of severity for the Veteran's service-connected exophthalmos, as there is an indication that the condition may have worsened since his last VA examination. The matters are REMANDED for the following actions: 1. Contact all appropriate entities to attempt to verify the Veteran's alleged in-service stressor event of the training mission explosion while he was stationed at Fort Lewis, Washington with the 14th Engineer Battalion in February 1998. If the stressor cannot be verified, prepare a formal finding stating why verification could not be completed, and listing the steps taken in the attempt to verify the stressor. 2. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his claimed disabilities on appeal, including for all eye surgeries in 2020 and 2021. Make two requests for the authorized records from each identified provider unless it is clear after the first request that a second request would be futile. 3. Obtain all updated VA treatment records for the Veteran, including from the VA North Texas Health Care System (for the period from January 2020 to the present) and from the VA South Texas Health Care System (for the period from October 2020 to the present). 4. After the above development has been completed and all requested records have been associated with the claims file, and if and only if the Veteran's in-service stressor event cannot be verified, then obtain a medical opinion from an appropriate clinician, after review of the electronic claims file, in order to address the following: For each acquired psychiatric disability diagnosed during the pendency of the appeal period (to include PTSD and MDD), the clinician must provide an opinion as to whether it is at least as likely as not that each such disability is either caused by or aggravated by any of his service-connected disabilities (including asthma with obstructive sleep apnea, migraine headaches, tinnitus, hypertension, right hamstring strain, left ear hearing loss, exophthalmos, and erectile dysfunction). The term "aggravation" means any incremental increase in disabilityany additional impairment of earning capacityin the non-service-connected condition resulting from the service-connected disability regardless of its permanence. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. If the clinician determines that an examination is necessary to respond to the above question(s), then the Veteran should be scheduled for such (or a telehealth interview if an in-person examination is not feasible). 5. After all requested records have been associated with the claims file, schedule the Veteran for examinations (or telehealth interviews if in-person examinations are not feasible) to address the claims for thyroid disability, bilateral ankle disability, bilateral flat feet disability, allergy disability, and GERD disability. The electronic claims file must be made available to the examiners for review in conjunction with the examinations. All necessary tests should be performed and the results should be reported, to include with regard to all appropriate diagnostic testing for thyroid disabilities, ankle disabilities, foot disabilities, and allergies, and with updated testing for GERD. (a.) For each thyroid disability diagnosed during the pendency of the appeal period, the examiner must provide an opinion as to whether it is at least as likely as not that each such disability began during the Veteran's active service (or within one year of service discharge), or is otherwise related to any incident of his active service (with specific consideration given to his allegations of continuity of symptomatology since service). (b.) For each bilateral ankle disability diagnosed during the pendency of the appeal period (to include bilateral ankle strain) and for the Veteran's currently diagnosed bilateral flat feet, the examiner must provide an opinion as to: i. Whether it is at least as likely as not that each such disability began during the Veteran's active service (or within one year of service discharge), or is otherwise related to any incident of his active service (with specific consideration given to his allegations of continuity of symptomatology since service), and ii. Whether it is at least as likely as not that each such disability is either caused by or aggravated by his service-connected right hamstring strain. The term "aggravation" means any incremental increase in disability any additional impairment of earning capacityin the non-service-connected condition resulting from the service-connected disability regardless of its permanence. (c.) For each allergy disability diagnosed during the pendency of the appeal period (to include allergic rhinitis), the examiner must provide an opinion as to: i. Whether it is at least as likely as not that each such disability began during the Veteran's active service (or within one year of service discharge), or is otherwise related to any incident of his active service (with specific consideration given to his allegations of continuity of symptomatology since service), and ii. Whether it is at least as likely as not that each such disability is either caused by or aggravated by his service-connected asthma. The term "aggravation" means any incremental increase in disability any additional impairment of earning capacityin the non-service-connected condition resulting from the service-connected disability regardless of its permanence. (d.) For the Veteran's currently diagnosed GERD, the examiner must provide an opinion as to whether it is at least as likely as not that such disability is either caused by or aggravated by the medications taken for his service-connected migraine headaches. The term "aggravation" means any incremental increase in disabilityany additional impairment of earning capacityin the non-service-connected condition resulting from the service-connected disability regardless of its permanence. A complete rationale for all opinions must be provided. If the clinician(s) cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician(s) must provide the reasons why an opinion would require speculation. The clinician(s) must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician(s) must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. 6. After all requested records have been associated with the claims file, schedule the Veteran for a VA examination to determine the current severity of his service-connected exophthalmos. The electronic claims file must be made available to the examiners for review in conjunction with the examination. All necessary tests should be performed and the results should be reported. 7. If the benefits sought on appeal remain denied, issue a Supplemental Statement of the Case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. B. Yantz, Counsel The Board's decision in this case is binding only with respect to the instant matter(s) decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.