Citation Nr: 21071381 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-27 305 DATE: November 30, 2021 REMANDED Entitlement to service-connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service-connection for breathing problems due to asbestos exposure, addressed as emphysema is remanded. Entitlement to an initial compensable evaluation for allergic rhinitis is remanded. Entitlement to an initial rating in excess of 10 percent for right shoulder impingement syndrome and degenerative joint disease is remanded. Whether the character of the Veteran's discharge for the period of service from December 1998 to October 2001 constitutes a bar to receipt of Department of Veterans Affairs (VA) compensation benefits is remanded. Entitlement to service connection for an undiagnosed illness or medically unexplained chronic multi-symptom illness (MUCMI), to include as manifested by weight changes, idiopathic skeletal hyperostosis, spondylitis, autoimmune disease, and chronic fatigue is remanded. Entitlement to service connection for periodic numbness of the lip and jaw, to include as secondary to genioglossal advancement surgery used to treat the Veteran's service-connected obstructive sleep apnea is remanded. Entitlement to service connection for residuals of traumatic brain injury (TBI) for compensation purposes only is remanded. Entitlement to service connection for a deviated septum for compensation purposes only is remanded. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service with the United States Marine Corps from June 1988 to August 1988, and April 1989 to October 2001. Due to multiple intervening reenlistments, his first periods of service until December 1998 have been deemed honorable for VA purposes. The Veteran was discharged in October 2001 under conditions other than honorable due to serious misconduct. Pursuant to the VA Form 9, Substantive appeal received in July 2015, the Veteran requested a Board hearing regarding the claims of service connection for PTSD and breathing problems and the claims for increased ratings for the service-connected rhinitis and right shoulder disability. According to correspondence received in Ocotber 2021, the Veteran's representative withdrew his hearing request. 38 C.F.R. § 20.704(e) Regarding the remaining claims on appeal, in an April 2019 decision, the Board denied entitlement to VA compensation benefits based upon the Veteran's final period of service and remanded the claims of entitlement to service connection for development. In May 2020, the Court of Appeals for Veterans Claims (Court) vacated the Board's previous denial pursuant to a Joint Memorandum for Remand (JMR). The claims were subsequently remanded by the Board in March 2021 and have now returned to the Board for readjudication. 1. Entitlement to service-connection for PTSD is remanded. The Veteran underwent a VA examination in December 2013 during which time he did not meet the DSM-5 criteria for PTSD. The Veteran subsequently submitted a private PTSD DBQ dated in August 2015 indicating he had diagnoses of PTSD and major depression. However, no nexus opinions were provided following the examination. Additional VA examinations in 2021 reflect diagnoses of PTSD, alcohol use disorder, and depression. In a July 2021 VA examination report, the VA examiner opined that the Veteran incurred PTSD and Alcohol Use Disorder during service as a result of his combat deployment during the first Gulf War. The Board finds that the July 2021 psychologist's opinion connecting the Veteran's PTSD to his service is inadequate, because it is unclear to what extent is based in part on evidence stemming from the Veteran's disqualified period of service. The Board can rely only on evidence pertaining to a Veteran's honorable period of service and cannot consider facts from a dishonorable period of service for purposes of compensation. See 38 C.F.R. § 3.12(a). Accordingly, the Board finds that a new opinion is necessary, with an opinion as to service connection based only on the Veteran's honorable period of service. Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Further the Board finds that additional pertinent evidence has been added to the record since the most recent May 2015 Statement of the Case (SOC). This evidence includes additional VA medical records (CAPRI) as well as VA examination reports. There is no waiver from the Veteran of consideration of newly associated evidence by the Agency of Original Jurisdiction (AOJ) in the first instance. 2. Entitlement to service-connection for breathing problems due to asbestos exposure, addressed as emphysema, is remanded. As to the Veteran's claimed respiratory disorder, to include emphysema, the Board notes that the Veteran was afforded a VA respiratory conditions examination in January 2014 wherein it was noted that the Veteran had a diagnosis of emphysema based on x-ray findings. The examiner opined that such was less likely than not incurred in or caused by exposure to asbestos as there was no clinical or radiological evidence of the Veteran having asbestos effect on the lung. Nonetheless, in the Veteran's representative's October 2019 brief, it was argued that aggravation by the service-connected rhinitis should be considered. Thus, remand is warranted for an opinion addressing whether any diagnosed emphysema is caused or aggravated by the Veteran's service-connected disabilities, to include rhinitis. 3. Entitlement to an initial compensable evaluation for allergic rhinitis is remanded. The Veteran was last afforded a VA examination for his allergic rhinitis in December 2013. In a July 2015 VA Form 9, Substantive Appeal, the Veteran noted that the rating decision noted there was no nasal blockage although there was a blockage noted in the December 2013 VA examination report. In addition, more recent VA treatment records reflect that his allergic rhinitis condition may have worsened over time and required changed medications and dosages. The Veteran is entitled to a new VA examination where there is evidence (including his statements) that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Given the indications that his allergic rhinitis is worse and given that it has been almost eight years since his previous examination, he should be scheduled for a new VA examination of his allergic rhinitis disability. 4. Entitlement to an initial rating in excess of 10 percent for right shoulder impingement syndrome and degenerative joint disease is remanded. The Veteran contends that he is entitled to increased rating for his service-connected right shoulder disability. The Board may not assume the Veteran is satisfied with grant of the 10 percent rating assigned effective February 19, 2013 for his right shoulder disability according to the June 2015 rating decision. A veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). As noted above, additional VA medical records have been added to the claims file since the Veteran was issued his SOC in May 2015 including VA treatment records. Therefore, this appeal must be remanded to allow the AOJ to consider the evidence. Additionally, the Veteran was last afforded a VA examination of his right shoulder in January 2014 which was inadequate in finding that it was not possible to describe the effects of repetition over time or flare-ups in terms of range of motion without resorting to mere speculation because there was no conceptual or empirical basis for making such a determination without directly observing function under those conditions. Sharp v. Shulkin, 29 Vet. App. 26 (2017). There are also indications found in the Veteran's treatment records that his right shoulder disability may have increased in severity since the January 2014 examination. Specifically, in October 2018 the Veran complained of constant shoulder pain. Given the indications that his right shoulder disability is worse and given that it has been over seven years since his previous examination, the Veteran should be scheduled for a new VA examination of his right shoulder disability. 5. Whether the character of the Veteran's discharge for the period of service from December 1998 to October 2001 constitutes a bar to receipt of VA compensation benefits is remanded. The Veteran asserts entitlement to VA compensation benefits for the period of service from December 1998 to October 2001. He contends that his discharge was not due to willful and persistent misconduct. Alternatively, he believes he was insane, per VA definition, around the time of the fatal motor vehicle accident. To that end, the claim was remanded in March 2021 for a VA opinion. In a July 2021 report, the VA examiner opined that the Veteran was insane at the time he committed the offense leading to his discharge from service in April 2001 and stated while there were issues of mental health, there was no evidence of insanity. While he relied on documents from 1995, it is unclear whether the Veteran's private opinion dated in April 2001 was considered. Of note, the Veteran submitted a private opinion dated in April 2021 in which the examiner noted that the Veteran at least as likely as not was suffering from insanity for VA purposes when he drove while intoxicated. However, he also stated that the Veteran demonstrated a pattern of misconduct while serving as a recruiter and that the Veteran exhibited more or less prolonged deviation from his normal or acceptable method of behavior of difficult adjustment to the community due to his acquired psychiatric disability. While both the VA and private examiner indicate the Veteran, suffered from mental health issues in service, it remains unclear whether the Veteran was insane at the time of the accident. The private opinions appears in part based on the Veteran being intoxicated at the time of the accident, and is inadequate to support a grant of the benefit sought. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate or incomplete factual premise is not probative). Accordingly, the Board remands the claim in order to obtain an addendum VA opinion. 6. Entitlement to service connection for an undiagnosed illness or MUCMI, to include as manifested by weight changes, idiopathic skeletal hyperostosis, spondylitis, autoimmune disease, and chronic fatigue is remanded. Per the Board's March 2021 remand, it was noted that the October 2020 medical opinion with respect to an undiagnosed illness of MUCMI was inadequate in that it appeared to overlook the Veteran's VA treatment records reflecting ongoing treatment for diffuse idiopathic skeletal hyperostosis and ankylosing spondylitis. In the March 2021 Board remand, it was specifically requested that the examiner determine the nature and etiology of his claimed symptoms, including weight changes, idiopathic skeletal hyperostosis, spondylitis, autoimmune disease, chronic fatigue. Once again, the examiner stated the Veteran did not have diffuse idiopathic skeletal hyperostosis and ankylosing spondylitis, referencing February 2014 x-rays of the thoracic and lumbar spine. However, the subsequent VA treatment records continue to include diffuse idiopathic skeletal hyperostosis in the problem list. Additionally, VA treatment records in July 2014 reflect that the Veteran's cervical spine, thoracic spine, and lumbar spine have clear signs of DISH with large bridging, osteophytes along anterior spine. Of note, the January 2014 x-rays of the cervical spine show "anterior osteophytes of the type consistent with the diagnosis of diffuse idiopathic skeletal hyperostosis" present anterior to C4 through C7. Thus, another remand is necessary to correct this error. 7. Entitlement to service connection for periodic numbness of the lip and jaw, to include as secondary to genioglossal advancement surgery used to treat the Veteran's service-connected obstructive sleep apnea is remanded. The Veteran continues to assert entitlement to service connection for numbness of the lip and jaw. The Board finds that this issue is inextricably intertwined with the resolution of the remanded character of discharge issue. The Veteran reported symptoms of numbness and tingling related to the motor vehicle accident underlying his discharge in his September 2001 separation examination. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Veteran was provided VA opinion in December 2019. At that time, the VA examiner was unable to confirm a chronic facial nerve impairment/diagnosis with current available records. It was observed that the Veteran noted intermittent symptoms to front teeth and lips during cold weather, but the examiner stated that this is an intermittently chronic condition and no functional impairment or chronic sensory impairment is documented. It was also indicated that there may be a superficial cutaneous nerve residual due to the scarring from surgery however it is intermittently chronic in certain situations. The examiner stated that this however has not been diagnosed to date. Similarly, in the October 2020 VA examination report, the examiner found no evidence of the diagnosis, treatment or pathology associated with numbness of the lip and jaw. VA treatment records dated in July 2021 reflect that the Veteran has temporomandibular joint pain and crepitus and related x-ray in October 2019. According to the 2021 VA Cranial nerves examination, it was noted that the Veteran has a diagnosis of bilateral TMJ. It was also noted that the Veteran did not have a cranial nerve condition. While the examiner stated that the Veteran has symptoms of numbness in the area below his lower lip and anterior chin on an intermittent basis with normal exam that date, this the examiner was unable to make a "real diagnosis" for the complaint. Nonetheless, the examiner noted that the Veteran has a disease with a clear and specific etiology and diagnosis that was reported to be a residual of jaw surgery in 1996. It is unclear to what disease the examiner was referring. Accordingly, this issue is remanded for an addendum and readjudication following evidentiary development. 8. Entitlement to service connection for residuals of traumatic brain injury (TBI) for compensation purposes only is remanded. As the Veteran is asserting entitlement to service connection for residuals of TBI, the Board finds that this issue is inextricably intertwined with the resolution of the remanded character of discharge issue. Evidence of record reflects that the Veteran experienced a significant head injury in the motor vehicle accident underlying his discharge in his September 2001 separation examination. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. Accordingly, this issue is remanded for readjudication following evidentiary development. 9. Entitlement to service connection for a deviated septum for compensation purposes only is remanded. As the Veteran is asserting entitlement to service connection for a deviated septum for compensation purposes, the Board finds that this issue is inextricably intertwined with the resolution of the remanded character of discharge issue. Evidence of record reflects that the Veteran experienced sinus damage in the motor vehicle accident underlying his discharge in his September 2001 separation examination. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. Accordingly, this issue is remanded for readjudication following evidentiary development. 10. Entitlement to a TDIU is remanded. Entitlement to a TDIU was denied by the RO in the February 2014 rating decision. The Veteran did not appeal that issue. However, the issue of entitlement to a TDIU has been re-raised by the evidence, and therefore, the issue is considered part of the current appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Given that the claim for TDIU is inextricably intertwined with the other claims being remanded, the issue of entitlement to TDIU must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his acquired psychiatric disorder, to include PTSD. A copy of this remand with all relevant medical records must be made available to the VA examiner. The VA examiner is requested to review all pertinent evidence, including the Veteran's lay assertions, and undertake all necessary studies. The VA examiner is requested to opine as to: Whether it is at least as likely as not that the Veteran's acquired psychiatric disorder, to include PTSD, had its onset during the Veteran's honorable period of service (June 1988 to August 1988, and April 1989 to December 1998), or is otherwise causally related to the Veteran's honorable period of service. The VA examiner is requested to provide a full rationale for all conclusions reached. 2. Schedule a VA examination to determine the severity of his service-connected allergic rhinitis. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. (a.) The examiner is asked to fully describe all symptomatology and functional deficits associated with this disability pursuant to the diagnostic criteria described in 38 C.F.R. § 4.97, including Diagnostic Code 6522. (b.) The examiner is directed to ensure IMAGINING TESTS, SUCH AS X-RAYS OR A CT SCAN, ARE CONDUCTED so as to determine whether there is presently any obstruction in the nasal passage related to the rhinitis. (c.) The examiner should specifically consider and address whether the Veteran has respiratory symptoms or disorders, to include emphysema, associated with his rhinitis and, if such disorder is at least as likely as not caused or aggravated by his rhinitis, and complete appropriate disability benefits questionnaires so that such can be evaluated and rated as/if necessary and permissible under the law. The VA examiner is requested to provide a full rationale for all conclusions reached. 3. Schedule the Veteran for a VA orthopedic examination to determine the current severity of his service-connected right shoulder impingement syndrome/degenerative joint disease. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. 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, to include joint range of motion studies. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of additional functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degree of limited motion due to pain, locking and/or swelling, that is caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degree of additional range of motion loss due to pain, locking and/or swelling during flare-ups or after repetitive use without resorting to speculation, the examiner should 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). 4. Obtain an addendum medical opinion from the August 2021 VA examiner (or another suitably qualified substitute) to assess the appellant's mental state leading up to his discharge from service. An examination may be scheduled if the specialist deems it necessary, Is it at least as likely as not (a 50 percent or greater probability) that the appellant was insane, per the VA regulation, at the time he committed the below offense leading to his discharge from service? Motor vehicle accident in April 2001. Note the definition of "insanity" per VA regulations: "An insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides." Please specifically discuss the appellant's previous subjective reports of symptoms such as depression, as well as any pertinent post-service medical records including the April 2021 private report noting that the Veteran demonstrated a pattern of misconduct while serving as a recruiter and that the Veteran exhibited more or less prolonged deviation from his normal or acceptable method of behavior of difficult adjustment to the community due to his acquired psychiatric disability The examination report should specifically state that a review of the record was conducted. The specialist should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 5. Return the claims file to the August 2021 VA examiner (or another suitably qualified substitute) for an addendum opinion regarding the Veteran's claimed symptoms, including weight changes, idiopathic skeletal hyperostosis, spondylitis, autoimmune disease, chronic fatigue, and numbness of the lip and jaw. The examiner must review the entire claims file, including a copy of this remand. Based on a thorough review of the record, the examiner is asked to provide responses to the following: (a.) Identify the Veteran's objective indications of a disability. Please specifically address his contentions regarding: weight changes, idiopathic skeletal hyperostosis, spondylitis, autoimmune disease, chronic fatigue, and numbness of the lip and jaw and specifically the January 2014 x-ray findings of idiopathic skeletal hyperostosis. "Objective indications" of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). (b.) By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. (c.) If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. (d.) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. (e.) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. (f.) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's diagnosed condition, to include diffuse idiopathic skeletal hyperostosis, was incurred in, or is otherwise related to, his active service? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 6. Obtain an addendum opinion regarding whether the Veteran's claimed periodic lip and jaw numbness, also claimed as temporomandibular joint disease with mandibular numbness, is at least as likely as not (a) proximately due to or (b) aggravated (increased in severity) beyond its natural progression as a result of the genioglossal advancement surgery performed to treat the Veteran's service-connected obstructive sleep apnea. The examiner is asked to consider the 2021 diagnoses involving the TMJ. An additional personal examination of the Veteran is not required unless the opining practitioner determines such an examination to be necessary to render the requested opinion. The VA examiner is requested to provide a full rationale for all conclusions reached. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Williams, 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.