Citation Nr: 21074405 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 19-12 683 DATE: December 15, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for residuals of a traumatic brain injury (TBI), to include headaches, impaired vision, and dizziness, is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for an acquired psychiatric disorder, is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for a cervical spine condition, is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for a lumbar spine condition with bilateral lower extremity numbness, is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for a right ankle condition, is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for a right heel condition, is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for a skin condition, is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for a respiratory condition, to include chronic bronchitis with congestion, chest pain, and nosebleeds, is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for an eye condition, to include impaired vision and scarring, is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for flu residuals, to include symptoms of chills, dehydration, fevers, and fatigue, is reopened. REMANDED Entitlement to service connection for TBI residuals, to include headaches, impaired vision, and dizziness, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is remanded. Entitlement to service connection for a cervical spine condition, to include chronic pain, is remanded. Entitlement to service connection for a lumbar spine condition, to include chronic pain with bilateral lower extremity numbness, is remanded. Entitlement to service connection for a right ankle condition is remanded. Entitlement to service connection for a right heel condition is remanded. Entitlement to service connection for a skin condition is remanded. Entitlement to service connection for a respiratory condition, to include chronic bronchitis with congestion, chest pain, and nosebleeds, is remanded. Entitlement to service connection for an eye condition, to include impaired vision and scarring, is remanded. Entitlement to service connection for flu residuals, to include symptoms of chills, dehydration, fevers, and fatigue, is remanded. FINDINGS OF FACT 1. A November 2016 Statement of the Case (SOC) denied the Appellant's claims for service connection for TBI residuals, to include headaches, impaired vision, and dizziness. The Appellant did not perfect his appeal; thus, the decision became final. At the time of the November 2016 SOC, the Agency of Original Jurisdiction (AOJ) found the Appellant did not provide evidence of an in-service event or injury. Since then, the Appellant testified he hit his head in-service, after suffering from heat exhaustion and diarrhea, that he believes caused his current headaches, impaired vision, and dizziness. This evidence is new and material and raises a reasonable possibility of substantiating the claim. 2. A November 2016 SOC denied the Appellant's claims for service connection for an acquired psychiatric disorder. The Appellant did not perfect his appeal; thus, the decision became final. At the time of the November 2016 SOC, the AOJ found the Appellant did not provide evidence of an in-service event or injury. Since then, the Appellant testified his current psychiatric condition was related to harassment and assault by his drill instructors. This evidence is new and material and raises a reasonable possibility of substantiating the claim. 3. A November 2016 SOC denied the Appellant's claims for service connection for cervical and lumbar spine conditions. The Appellant did not perfect his appeal; thus, the decision became final. At the time of the November 2016 SOC, the AOJ found the Appellant did not provide evidence of an in-service event or injury. Since then, the Appellant testified he suffered two in-service falls. This evidence is new and material and raises a reasonable possibility of substantiating the claim. 4. A November 2016 SOC denied the Appellant's claims for service connection for a right ankle, right heel, and skin condition. The Appellant did not perfect his appeal; thus, the decision became final. At the time of the November 2016 SOC, the AOJ found the Appellant did not provide evidence of an in-service injury or nexus. Since then, the Appellant testified he suffered a rash in service that scarred his trunk, and he hurt his right foot and ankle while wearing ill-fitted boots during strenuous physical training. This evidence is new and material and raises a reasonable possibility of substantiating the claims. 5. A November 2016 SOC denied the Appellant's claims for service connection for a respiratory condition, to include chronic bronchitis with congestion, chest pain, and nosebleeds. The Appellant did not perfect his appeal; thus, the decision became final. At the time of the November 2016 SOC, the AOJ found the Appellant did not have a current diagnosis or nexus for any claimed condition. Since then, the Appellant has provided testimony noting chronic nosebleeds, congestion, and chest pain since service. This evidence is new and material and raises a reasonable possibility of substantiating the claim. 6. A November 2016 SOC denied the Appellant's claims for service connection for an eye condition, to include impaired vision and scarring, and flu symptoms. The Appellant did not perfect his appeal; thus, the decision became final. At the time of the November 2016 SOC, the AOJ found the Appellant did not provide evidence a current disability, in-service event, or nexus. Since then, the Appellant testified he was exposed in-service to dust and debris and was treated in-service for flu symptoms and conjunctivitis. This evidence is new and material and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for TBI residuals, to include headaches, impaired vision, and dizziness. 38 U.S.C. § 7105 (2019); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2020). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 7105 (2019); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2020). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a cervical spine condition. 38 U.S.C. § 7105 (2019); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2020). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar spine condition with bilateral lower extremity numbness. 38 U.S.C. § 7105 (2019); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2020). 5. New and material evidence has been received to reopen the claim of entitlement to service connection for a right ankle condition. 38 U.S.C. § 7105 (2019); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2020). 6. New and material evidence has been received to reopen the claim of entitlement to service connection for a right heel condition. 38 U.S.C. § 7105 (2019); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2020). 7. New and material evidence has been received to reopen the claim of entitlement to service connection for a skin condition. 38 U.S.C. § 7105 (2019); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2020). 8. New and material evidence has been received to reopen the claim of entitlement to service connection for a respiratory condition, to include chronic bronchitis with congestion, chest pain, and nosebleeds. 38 U.S.C. § 7105 (2019); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2020). 9. New and material evidence has been received to reopen the claim of entitlement to service connection for an eye condition. 38 U.S.C. § 7105 (2019); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2020). 10. New and material evidence has been received to reopen the claim of entitlement to service connection for flu residuals. 38 U.S.C. § 7105 (2019); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2020). REASONS FOR REMAND The Appellant served in the Marines Corps Reserve from June 1990 to April 1993, with active duty for training (ACDUTRA) from February 1991 to July 1991 and periods of inactive duty training (INACDUTRA). He appeals a June 2018 rating decision by the Department of Veterans Affairs (VA) AOJ denying entitlement to service connection for numerous conditions. A Board of Veterans' Appeals (Board) hearing was held in May 2020. A transcript is of record. At the May 2020 Board hearing, the Appellant clarified which current issues he intended to file as claims for service connection. For example, the Appellant's claim notes "heat exhaustion with diarrhea" and "headaches with vomiting;" however, the Appellant clarified that his contention is the occurrence of in-service heat exhaustion with diarrhea and vomiting caused him to fall and hit his head, which he believes, caused his current chronic headaches and other claimed TBI residuals. See May 2020 Board Hr. Tr. at 16. Another example involves the Appellant's claim for "chest pain," which he testified was not a heart or muscle condition; rather, the Appellant stated he "coughs so hard" his chest hurts and was part of his claim for bronchitis and congestion. Id. at 5. The Board is required to construe a claimant's arguments "in a liberal manner for purposes of determining whether they raise issues on appeal." Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Thus, the Board has recharacterized some claims on appeal based on the Appellant's description of the claim and detailed testimony, his reported symptoms, and the other information of record. See Browkowski v. Shinseki, 23 Vet. App. 79 (2009). As a preliminary matter, the record appears incomplete. At the Board hearing, the Appellant noted he received medical treatment from his primary care practitioner, Dr. T.S. at Brigham and Women's Hospital in Boston, Massachusetts. See May 2020 Board Hr. Tr. at 7. For his claimed eye, nasal, and respiratory conditions, the Appellant noted treatment with an ear, nose and throat specialist, Dr. A.L. at Mass Eye and Ear. Id. at 9, 27. For his back conditions, the Appellant noted treatment by Dr. R.F. at Beth Israel, Dr. M. at Meeks and Zilberfarg Orthopedics, and a specialist physician in Los Angeles, California, Dr. S.W. Id. at 20-22. Finally, the Appellant noted he received psychiatric treatment from Dr. B. Id. at 33. These records are not on file and VA has a duty to obtain relevant records, including private treatment records that have been sufficiently identified. See 38 C.F.R. § 3.159(c). Additionally, the Appellant's June 2017 claim noted he received treatment at Men's Health Boston. Although the AOJ requested the Appellant complete a VA Form 21-4142 for subsequent development, the Appellant did not respond. See July 2017 and April 2018 VA letters. In light of the Board's need to remand for other records, the AOJ should make further attempts to obtain the Appellant's records from Men's Health Boston. Additionally, numerous VA treatment records in the Appellant's file from Boston VAMC do not contain any medical information and instead merely state, "You may not VIEW this COMPLETED EMPLOYEE HEALTH NOTE." See, e.g., February 2012, April 2013, and May 2016 VA treatment records. On remand, the AOJ should obtain these currently unviewable VA treatment records and upload them to the Appellant's file for Board review. TBI Residuals, to Include Headaches, Impaired Vision, and Dizziness A claimant is entitled to a VA examination if there is (1) competent evidence of a current disability, and (2) evidence that an injury occurred in service, and (3) an indication that the disability may be associated with a period of ACDUTRA, INACDUTRA, or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Appellant testified he fell and hit his head in-service after passing out from heat exhaustion on a physically strenuous training day during his initial ACDUTRA. See May 2020 Board Hr. Tr. at 14-15. May 1991 service treatment records (STRs) corroborate that the Appellant was brought in for treatment by fellow soldiers after an episode of "heat syncope" while "digging a fox hole." These STRs also note the Appellant was nauseated and dizzy, he had a headache and his chest hurt. The Appellant testified he has suffered from chronic headaches, dizziness, and impaired vision ever since this in-service incident. Id. at 15. While the Appellant is not competent to opine on the etiology of his current symptoms or diagnose his in-service incident as a TBI, he is competent to testify to the history and nature of these symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Satisfying the McLendon elements is a low threshold and the evidence must only 'indicate' that there 'may' be a nexus between a current disability and service or service-connected disability. See McLendon, 20 Vet. App. at 83. Thus, as the Appellant has not yet received a VA examination, a remand is required. Acquired Psychiatric Disorder The Appellant contends he was "picked on" and bullied by his drill instructors during his initial period of ACDUTRA. See May 2020 Board Hr. Tr. at 33. Specifically, the Appellant felt he was singled out and received harsher treatment due to his name, including one instance of physical assault by Sergeant L. Id. 34-36. June 2018 VA treatment records note the Appellant is treated for symptoms of PTSD and depression. He contends his current psychiatric disorder is related to his in-service treatment. Thus, as the Appellant has not yet received a VA examination, a remand is required. Additionally, at the May 2020 Board hearing, the Appellant's representative noted "we have the nexus letter" from the Appellant's psychiatrist, presumably Dr. B., linking the Appellant's psychiatric disorder to service. See May 2020 Board Hr. Tr. at 2. However, this letter is not on file and should be submitted on remand. Cervical Spine and Lumbar Spine Conditions The Appellant testified to suffering from chronic back pain since his initial period of ACDUTRA. Specifically, for his lumbar spine, the Appellant stated he tried to step over another Marine and fell off of a rope tower, injuring his lower back during training. Id. at 20. April 1991 STRs note the Appellant was treated for low back pain after falling "on another recruit's boots." For his cervical spine, the Appellant stated he suffered an injury during his fall from heat exhaustion. Id. at 23. June 2018 VA treatment record reflect the Appellant complained of chronic back pain "since the Marines, with carrying heavy back packs" and he testified to being treated for his chronic back pain by numerous private physicians. The Board finds the McLendon elements have been met and a remand is required to obtain a VA examination. Right Ankle and Heel Conditions The Appellant contends his current right ankle and heel pain began after he injured his heel and sprained his ankle during intense physical training, such as wearing a heavy pack with ill-fitted boots while running during ACDUTRA. See May 2020 Board Hr. Tr. at 28-30 ("had the wrong pair of boots about six weeks," had "an ankle sprain, severe high-ankle sprain."). February 1991 STRs note the Appellant suffered a right ankle sprain and was diagnosed with a "reoccurring right ankle sprain." March 1991 STRs note the Appellant sought treatment for right heel pain after landing "hard from jumping on 'O' course," and he was diagnosed with a "bruised heel." The Appellant testified his ankle and heel pain have continued since service and now swell in cold weather. Id. at 29-30. As the Appellant has not been afforded a VA examination to properly assess the nature and etiology of his right ankle and foot disability, a remand is required. Skin Condition The Appellant contends he has scarring on his chest from a rash he contracted during a period of ACDUTRA or INACDUTRA that continues to flare-up, burn, and turn red. Id. at 30-31. July 1991 STRs note the Appellant was treated for a rash in his groin region and January 1992 STRs note the Appellant was treated for "red spots on his extremities and trunk" after "one day and night in the field." June 2018 VA treatment records reflect the Appellant has a "heat-related rash on chest, arms, back, and groin" that "over the years...have developed burn-like scars." As the Appellant has not yet been afforded a VA examination, a remand is also required for this issue. Respiratory Condition, to Include Chronic Bronchitis, Congestion, Chest Pain, and Nosebleeds The Appellant contends he suffered from bronchitis and respiratory conditions during his initial period of ACDUTRA, and he has been suffering the same symptoms since. Id. at 5, 25-26. He testified he suffers from chronic congestion, coughing, and breathing problems with "spontaneous nosebleeds... two to three [times] a week." Id. at 5, 26. March 1991 STRs note the Appellant sought treatment for a respiratory condition and was treated for sinusitis and, potentially, strep throat. May and June 1991 STRs note treatment for bronchitis and complaints of "chest pains when coughing." June 2018 VA treatment records reflect the Appellant sought treatment for a chronic dry "cough... wheezing, and raspy voice" he stated began during his time in the Reserve. As the Appellant has not yet been afforded a VA examination, a remand is required. The matters are REMANDED for the following action: 1. Obtain all outstanding relevant medical treatment records that have not already been associated with the claims filing, including but not limited to the following: (a). Dr. Thomas Sequist at Brigham and Women's Hospital in Boston, Massachusetts, (b). Dr. Alice Lorch from Massachusetts Eye and Ear, (c). Dr. Ryan Friedberg at Beth Israel, (d). Dr. Meeks at Meeks and Zilberfarg Orthopedics, (e). Dr. Steven Watkins in Los Angeles, (f). Dr. Bradford's psychiatric treatment records and medical opinion noted in the May 2020 Board Hearing Transcript at 2, and (g). Men's Health Boston. If any identified records are not obtainable, or none exist, the Appellant and his representative should be notified, and the record clearly documented. 2. Obtain all treatment records from Boston VAMC that are not fully uploaded in the Appellant's current CAPRIs, including notes for all entries that state "You may not VIEW this COMPLETED EMPLOYEE HEALTH NOTE," and associate them with the claims file. For reference, please see February 2012, April 2013, and May 2016 VA treatment records. 3. After the development of #1-2 above is complete, schedule the Appellant for an examination by an appropriately qualified clinician to determine the nature and etiology of claimed residuals from any TBI incurred during ACDUTRA or INACDUTRA. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Appellant and the opinion should include a notation that this record review took place. Following review of the record and examination of the Appellant, the examiner should answer the following: Is it at least as likely as not (a 50 percent probability or more) that the Appellant's TBI residuals, to include headaches, impaired vision, and dizziness, were incurred in or are otherwise related to his May 1991 syncope incident where the Appellant testified he hit his head? The examiner should note the Appellant is competent to report his symptoms and history and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Appellant's reports of symptomatology, a reason for doing so should also be provided. The examiner should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. 4. After the development of #1-2 above is complete, schedule the Appellant for an examination by an appropriately qualified clinician to determine the nature and etiology of the Appellant's acquired psychiatric disorder, to include PTSD and depression. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Appellant and the opinion should include a notation that this record review took place. Following review of the record and examination of the Appellant, the examiner should identify all acquired psychiatric disabilities present. For each identified acquired psychiatric disability, provide an opinion with respect to whether it is at least as likely as not that the Appellant's current acquired psychiatric disability was the result of a disease or injury incurred during ACDUTRA, or an injury incurred during a period of INACDUTRA. If PTSD is diagnosed, the examiner should identify the specific stressors that led to the condition. The examiner is directed to the Appellant's testimony at the May 2020 Board Hearing noting harassment by drill instructors. In rendering this opinion, the examiner is advised that the Appellant is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Appellant's reports, he or she must provide an explanation for such rejection. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After the development in #1-2 above is complete, schedule the Appellant for musculoskeletal examinations by an appropriately qualified clinician to determine the nature and etiology of any (1) cervical spine condition, (2) lumbar spine condition with lower extremity numbness, (2) right ankle condition, and (3) right heel condition, all to include chronic pain. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Appellant and the opinion should include a notation that this record review took place. After a thorough review of the record to include all in-service and post-service treatment records, the examiner should answer the following for each of the Appellant's (1) cervical spine condition, (2) lumbar spine condition with lower extremity numbness, (2) right ankle condition, and (3) right heel condition: Is it at least as likely as not the Appellant's current condition, to include chronic pain, was the result of a disease or injury incurred during ACDUTRA, or an injury incurred during a period of INACDUTRA? The examiner is directed to the following: (i). the Appellant's May 2020 Board Hearing contention that his chronic low back pain began after falling off of a rope tower during "O" course, and his cervical spine pain began after falling in May 1991 after a heat syncope episode, (ii). April 1991 STRs noting the Appellant was treated for low back pain after falling "on another recruit's boots," (iii). June 2018 VA treatment records noting complaints of back pain "since the Marines, with carrying heavy back packs," (iv). March 1991 STRs noting treatment for right heel bruise with pain after jumping in "O" course, and (v). February 1991 STRs noting treatment for a "reoccurring right ankle sprain." The examiner should note that the Appellant is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Appellant's reports of symptomatology, a reason for doing so should also be provided. The examiner should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. After the development of #1-2 above is complete, schedule the Appellant for an examination by an appropriately qualified clinician to determine the nature and etiology the Appellant's current skin condition. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Appellant and the opinion should include a notation that this record review took place. Following review of the record and examination of the Appellant, the examiner should answer the following: Is it at least as likely as not (a 50 percent probability or more) that the Appellant's skin condition was the result of a disease or injury incurred during ACDUTRA, or an injury incurred during a period of INACDUTRA? The examiner is directed to July 1991 STRs noting treatment for a rash in the Appellant's groin area, and January 1992 STRs noting treatment for "red spots on his extremities and trunk" after "one day and night in the field." The examiner should note the Appellant is competent to report his symptoms and history and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Appellant's reports of symptomatology, a reason for doing so should also be provided. The examiner should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 7. After the development of #1-2 above is complete, schedule the Appellant for an examination by an appropriately qualified clinician to determine the nature and etiology the Appellant's current respiratory conditions. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Appellant and the opinion should include a notation that this record review took place. Following review of the record and examination of the Appellant, the examiner should answer the following: Is it at least as likely as not (a 50 percent probability or more) that the Appellant's respiratory condition, to include chronic bronchitis, congestion, chest pain, and nosebleeds was the result of a disease or injury incurred during ACDUTRA, or an injury incurred during a period of INACDUTRA? The examiner is directed to March 1991 STRs noting treatment for respiratory symptoms with a diagnosis of sinusitis and to "rule out strep;" May and June 1991 STRs noting treatment for bronchitis and chest pains; and the Appellant's May 2020 Board testimony that since service he is "always coughing and always [has] difficult breathing problems." The examiner should note the Appellant is competent to report his symptoms and history and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Appellant's reports of symptomatology, a reason for doing so should also be provided. The examiner should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 8. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Appellant and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, Associate 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.