Citation Nr: 21074819 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-59 271 DATE: December 16, 2021 REMANDED Entitlement to service connection for a skin disorder is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to a rating in excess of 50 percent for generalized anxiety disorder is remanded. Entitlement to service connection for a total disability rating based on individual unemployability as due to service-connected disability (TDIU) is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from October 1964 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal of January 2015 and March 2016 rating decisions issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Board has advanced this case on the docket pursuant to 38 U.S.C. § 7107(b)(3). 38 C.F.R. § 20.900(c). In a November 2018 decision, the Board granted an increased rating of 50 percent for the Veteran's service-connected generalized anxiety disorder and remanded the issues of entitlement to service connection for a skin disorder, bilateral hearing loss, and tinnitus to the AOJ for further development. The Veteran appealed the denial of a rating in excess of 50 percent to the U.S. Court of Appeals for Veterans Claims (Court), which issued an October 2020 memorandum decision setting aside the unfavorable part of the decision and remanding the case to the Board. The remanded claims have also been returned to the Board for appellate review. REASONS FOR REMAND 1. Entitlement to service connection for a skin disorder The Veteran asserts that his skin disorder, diagnosed variously as seborrheic keratosis and atopic dermatitis of the right costal and face area, is due to his active service. Specifically, during a November 2020 VA skin examination, he claimed that he was exposed to Agent Orange in 1964 during his service in Vietnam, which he stated affected the skin on the right side of his face as well as his left arm. He reported that the disorder manifested as episodes of intense itching and rash exacerbation since service. During the same November 2020 examination, the VA examiner opined that the Veteran's skin disorder was less likely than not due to his active service, noting the absence of records documenting skin complaints during or shortly after separation from service. The examiner also observed that the first evidence of the manifestation of a skin disorder occurred in 2014, over 50 years after separation, and stated that atopic dermatitis is precise and occurs immediately after exposure. However, the Board finds that an addendum opinion is now required in this case. Although the examiner addressed the Veteran's atopic dermatitis, he failed to discuss the Veteran's seborrheic keratosis, which has also been diagnosed during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Additionally, the examiner did not address the Veteran's lay report of in-service exposure to Agent Orange, which he asserts is the cause of his current skin disorder. As such, remand is required. See Miller v. Wilkie, 32 Vet. App. 249, 258-60 (2020) (an examiner's opinion must address the Veteran's relevant lay statements in order to include enough detail to inform the Board's decision). 2. Entitlement to service connection for right ear hearing loss is remanded. As noted above, the Board remanded the issue of entitlement to service connection for bilateral hearing loss to the AOJ for further development in November 2018. Before the case was returned to the Board, the AOJ issued a January 2021 rating decision granting service connection for left ear hearing loss only. The Board observes that the most recent VA opinion regarding the etiology of the Veteran's hearing loss is from March 2016. This examiner based a negative nexus opinion on the lack of evidence of hearing loss inservice and stated that the first evidence of hearing loss was during the current examination. The Veteran submitted an October 2021 statement reporting in-service noise exposure and stating that he began to experience difficulty hearing towards the end of his active service. He also reported that within "a year or two after service" he noticed hearing loss and ringing in his years. In light of this statement, the Board finds that the March 2016 VA opinion is now inadequate, as it does not help inform the Board by addressing the Veteran's statements regarding the onset of decreased hearing acuity, which he is competent to report. Miller, 32 Vet. App. at 258-60. An adequate medical opinion should address the Veteran's lay description of the onset of his symptoms as well as an explanation of whether "the veteran's assertions are generally inconsistent with medical knowledge or implausible" and whether "the veteran's reports about symptoms or an inservice injury align with how the disease or disability is known to develop." Id. As such, the Board must remand the issue of entitlement to service connection for right ear hearing loss for a medical opinion addressing the Veteran's lay statements regarding the onset of his hearing loss symptoms. 3. Entitlement to service connection for tinnitus is remanded. As discussed above, the AOJ granted entitlement to service connection for left ear hearing loss in a January 2021 rating decision. In an October 2021 brief, the Veteran's representative raised a new theory of entitlement, claiming that the Veteran's tinnitus is secondary to his hearing loss. The Board observes that while providing a negative nexus opinion during an October 2020 VA examination, the examiner stated that Veteran's "tinnitus is at least as likely as not a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss." However, the October 2021 examiner also opined that the Veteran's tinnitus was less likely than not due to service and was more likely due to age-related hearing loss. As this opinion was proffered prior to the grant of service connection for the Veteran's left ear hearing loss, remand for an addendum opinion is required in order to clarify the etiology of the Veteran's tinnitus and determine whether it has been caused or aggravated by his service-connected left ear hearing loss. 4. Entitlement to a rating in excess of 50 percent for generalized anxiety disorder is remanded. In the October 2020 memorandum decision, the Court noted that the Board failed to conduct a "holistic analysis" in assessing the severity, frequency, and duration of the symptoms of the Veteran's service-connected mental disorder, to include quantifying the occupational and social impairment caused by these symptoms. In an August 2021 statement, the Veteran indicated his anxiety not only required him to cease working in 2013, but that it had since dramatically worsened. He reported that "over the past few years" he has rarely left the house and begun to see things that are not there more and more often. The Board observes that the Veteran's last VA psychological examination occurred in October 2016, and that VA and private records during the intervening period indicate irregular psychiatric treatment. The Board notes that the Veteran underwent a psychodiagnostic evaluation in October 2021. The private examiner diagnosed major depressive disorder and generalized anxiety disorder. While cognizant of Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), the Board notes that, although the private examiner's statement seemed to indicate which symptoms were attributable to each disorder, the private examiner explicitly drew a distinction between the two disorders. Thus, it cannot be reasonably assumed that the private examiner was unable to distinguish between overlapping symptoms between the Veteran's generalized anxiety disorder and major depressive disorder. Accordingly, the Board cannot rely on the private examiner's opinion to the extent that the private examiner opined that the Veteran's mental health disorder warranted a higher rating based on the Veteran's overall social and occupational impairment. The passage of time alone, without an allegation of worsening, does not warrant a new examination. However, a material change in the condition or problems or inconsistencies in the prior examination(s) can so warrant. See Green v. Derwinski,1 Vet. App. 121, 124(1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown,6 Vet. App. 377, 381(1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). In this case, the Veteran's report of worsening symptoms "over the past few years" renders the previous VA examination too remote for rating purposes, and remand for a contemporaneous examination is warranted. 5. Entitlement to a TDIU is remanded. In November 2021 correspondence, the Veteran's representative directly raised the issue of entitlement to a TDIU and included employment information as well as a statement from the Veteran describing his inability to work due to his service-connected disabilities. The issue of entitlement to a TDIU is intertwined with the above issues being remanded for additional VA examination and opinion, particularly entitlement to a higher rating for anxiety. Issues are considered to be inextricably intertwined when a determination on one issue could have a significant impact on the outcome of another. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, the Board defers consideration of this issue at this time. The matters are REMANDED for the following action: 1. Attach to the claims file all updated VA and relevant private treatment records. 2. Obtain a medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran's diagnosed skin disorder(s). The need for a new examination is left to the discretion of the examiner. The examiner is asked to opine whether the Veteran's diagnosed seborrheic keratosis and atopic dermatitis at least as likely as not (50 percent probability or greater) first manifested in or are otherwise due to his active service, to include conceded exposure to herbicide agents. The examiner is asked to discuss both the skin conditions diagnosed during the appeal period, and to state whether there is any medical reason to accept or reject the Veteran's belief that inservice exposure to herbicide agents resulted in any skin disorder diagnosed during the appeal period. A full rationale must be provided for any opinion offered. 3. Obtain a medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran's diagnosed right ear hearing loss and tinnitus. The need for a new examination is left to the discretion of the examiner. The examiner is asked to opine whether the Veteran's right ear hearing loss at least as likely as not (50 percent probability or greater) first manifested in or is otherwise due to the cumulative effects of the conceded noise exposure during his active service from October 1964 to September 1966. The examiner is also asked to opine whether the Veteran's tinnitus at least as likely as not (50 percent probability or greater) a) first manifested in or is otherwise due to his active service; and b) is caused or aggravated by his service-connected left ear hearing loss. A full rationale must be provided for any opinion offered. The examiner is asked to specifically address the Veteran's October 2021 statement, in which he reported hearing difficulties towards the end of his service, as well as noticeable hearing loss and ringing "within a year or two" of separation. The examiner should discuss whether there is any medical reason to accept or reject the Veteran's belief that his conceded in-service noise exposure, perceived in-service decrease in hearing acuity, and report of post-service hearing loss and ringing represented the onset of his current right ear hearing loss and/or tinnitus. 4. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected anxiety disorder. Access to the electronic claims file must be made available to the examiner for review. In accordance with the latest worksheets for rating psychiatric disabilities, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of his disabilities, to include those described in his August 2021 statement. If the examiner determines that the Veteran has any current diagnosed psychological disorders other than generalized anxiety disorder, to include major depressive disorder, the examiner must address the level of social and occupational impairment attributable solely to the service-connected generalized anxiety disorder, and distinguish any symptomatology attributed to any other diagnosed psychological disorder. If a distinction cannot be made, the examiner must indicate as much. The examiner should address the August 2021 psychodiagnostic evaluation. The examiner must provide a complete rationale for all findings and opinions. Kelly A. Gastoukian Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, 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.