Citation Nr: 21076457 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 18-27 449 DATE: December 23, 2021 ISSUES 1. Entitlement to an increased rating in excess of 10 percent for decreased sensation, periorbital area- fifth cranial nerve/trigeminal. 2. Entitlement to a compensable rating for a deviated septum. 3. Entitlement to a total disability rating for individual unemployability (TDIU). 4. Entitlement to service connection for a right forearm condition (also claimed as numbness and painful scar). 5. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and anxiety. 6. Entitlement to service connection for an opioid use disorder (to include residuals of an opioid use disorder). 7. Entitlement to a temporary 100 percent evaluation due to hospitalization longer than 21 days. ORDER Entitlement to an increased rating in excess of 10 percent for decreased sensation, periorbital area- fifth cranial nerve/trigeminal has been withdrawn and is therefore dismissed. REMANDED Entitlement to a compensable rating for a deviated septum is remanded. Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. Entitlement to service connection for a right forearm condition (also claimed as numbness and painful scar) is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and anxiety is remanded. Entitlement to service connection for an opioid use disorder (to include residuals of an opioid use disorder) is remanded. Entitlement to a temporary 100 percent evaluation due to hospitalization longer than 21 days is remanded. FINDING OF FACT In a letter received on August 13, 2021, the Veteran withdrew the issue of entitlement to an increased rating in excess of 10 percent for decreased sensation, periorbital area- fifth cranial nerve/trigeminal. CONCLUSION OF LAW The criteria for withdrawal of entitlement to an increased rating in excess of 10 percent for decreased sensation, periorbital area- fifth cranial nerve/trigeminal by the Veteran has been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1978 to June 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2016 and September 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in August 2021. A transcript of the hearing has been associated with the claims file. As noted at the August 2021 hearing, the issues of entitlement to an increased rating in excess of 10 percent for painful facial scar status post-surgery and entitlement to an increased rating in excess of 10 percent for tibia fibula fracture were not included on the VA Form 9 and therefore are not currently before the Board on appeal. The Board also notes that in an August 2021 letter the Veteran previously withdrew his claim for a compensable rating of his deviated septum. However, at the August 2021 hearing the Veteran, through his representative, rescinded the withdrawal and testimony on the issue was taken. As to the claim for entitlement to service connection for PTSD, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) clarified how the Board should analyze claims, specifically to include those for an acquired psychiatric disorder. As emphasized in Clemons, though an appellant may only seek service connection for PTSD, the appellant's claim "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed...." Id. Given that the Veteran has applied for entitlement to service connection for PTSD but notes receiving treatment for anxiety, the Board has expanded and recharacterized the claim to an acquired psychiatric disorder, to include PTSD and anxiety, as noted on the first page of this decision. A claim for entitlement to a TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran testified that he is unemployed as a result of his service-connected disabilities, and specified that his service-connected deviated septum impacts his ability to maintain and secure employment. As such, the Board has included the issue of entitlement to a TDIU in this appeal as part and parcel of the claim for a compensable rating of the Veteran's deviated septum. Id. Entitlement to an increased rating in excess of 10 percent for decreased sensation, periorbital area- fifth cranial nerve/trigeminal has been withdrawn and is therefore dismissed. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. In a letter received August 13, 2021, the Veteran and his representative stated that the Veteran wished to withdraw the issue of entitlement to an increased rating in excess of 10 percent for decreased sensation, periorbital area- fifth cranial nerve/trigeminal. As a matter of law, a withdrawal of an appeal is effective when received. See 38 C.F.R. § 20.204 (b)(3). Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to these matters. As the Board does not have jurisdiction to review this claim, it is therefore dismissed. REASONS FOR REMAND 1. Entitlement to a compensable rating for a deviated septum is remanded. The Veteran asserts that his deviated septum warrants a compensable rating. At the August 2021 Board Hearing the Veteran testified that his deviated septum is clogged and completely obstructed, and asserts that the latest assessment at the VA examination was incorrect. The Veteran testified that about once a month "it builds up around my eye and I have to do like a baby, I have to take a syringe thing and stick up my nose and suck thatsuck it out of my nose." The Veteran was last afforded a VA examination of his deviated septum in November 2020. However, the examination failed to report and consider the Veteran's symptoms, to include clogging and drainage issues. The VA examiner noted that there was not complete obstruction on either side. While the Veteran is competent to discuss observed physical symptoms, the Veteran does not have any medical expertise or training as to competently assess the level of disability. See Layno v. Brown, 6 Vet. App. 465 (1994). Given the Veteran's testimony, the Board remands the matter for an additional VA examination of the Veteran's deviated septum with consideration of the Veteran's testimony and contemporaneous symptoms. 2. Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. As noted above, the Board finds that the Veteran has reasonably raised a claim for entitlement to a TDIU under Rice. A remand is required prior to adjudication of the claim for entitlement to a TDIU, as the Veteran has not been provided adequate notice of the requirements to substantiate the claim, nor has the regional office addressed the issue in the first instance. Additionally, adjudication of the currently pending claims may impact the claim for entitlement to a TDIU. 3. Entitlement to service connection for a right forearm condition (also claimed as numbness and painful scar) is remanded. At the August 2021 Board Hearing, the Veteran testified that as part of his assigned mission he built and destroyed bridges and asserts that while he was using a jackhammer "part of the bit blew out and a chip went in [his] arm." The Veteran testified that they took him to sick call and that they determined it was better to leave it in than to take it out. He said that sometimes he can still see it in his arm and that he is in a lot of pain. The Veteran explained that this occurred in Hanover, Germany and that they took x-rays. An October 2017 informal conference report indicates that a similar incident occurred while stationed at Ft. Lewis Washington between September 1981 and October 1983. The RO requested such clinical service treatment records and received a negative response. The Board notes that the Veteran's MOS was a combat engineer and to this extent the Veteran's asserted experience is consistent with his listed service. Moreover, the Board notes that a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge, to include symptoms experienced or observed. See also Layno v. Brown, 6 Vet. App. 465, 469-70. On remand, the Board requests that the AOJ obtain and associate with the claims file any outstanding Service Treatment Records (STRs), specifically those from Hanover, Germany. Moreover, as the Veteran has not received a VA examination and opinion regarding his right arm, the Board directs the AOJ to provide such on remand. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i) (2017). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Here, the Board finds that the McLendon criteria have been satisfied, as there is competent evidence that the Veteran has right arm pain and numbness which may be associated with his active service. Upon examination, the examiner is directed to review the entire claims file, to include all service treatment records, the August 2021 hearing transcript, and any available current and past x-rays. 4. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and anxiety is remanded. 5. Entitlement to service connection for an opioid use disorder (to include residuals of an opioid use disorder) is remanded. The Veteran asserts that his current acquired psychiatric disorder and opioid use disorder (to include residuals) are the result of his service, to include the physical altercation that he was a victim of in service, as noted in his STRs. The record indicates and the Veteran has testified that he is currently being treated with several prescribed non-opioid psychiatric medications for his symptoms, which includes anxiety. The Veteran was afforded a VA examination in September 2017 and the VA examiner noted a diagnosis of opioid use disorder but found that the Veteran did not meet the criteria for PTSD. The examiner opined that "The Veteran's Opioid Use Disorder was less likely than not (less than 50 percent probability) incurred in or caused by being struck in the face during service. His Opiate use did not incur in the military, nor does it have any documented relation to his being struck in the face during service." Having considered the Veteran's August 2021 hearing testimony, the Board remands this matter for another VA examination with consideration of the Veteran's testimony and assertions. First, the Board remands this matter for an additional VA examination to determine whether the Veteran has an acquired physiatric disorder, to include any diagnosis of anxiety and/or PTSD. The examiner is directed to consider the claims file in its entirety, to include medical treatment records and the Veteran's August 2021 hearing testimony noting treatment for and symptoms of anxiety. Second, the Board remands this matter for an additional VA examination with consideration of the Veteran's testimony regarding the etiology of his opioid use disorder and the residuals of such. While the examiner is to consider the entire record and hearing transcript, of note is the Veteran's testimony and assertions that 1.) he began using opioids in service when was prescribed and treated with opioid medications in the hospital as he recovered from the injuries he sustained from the physical altercation in service; 2.) he continued to use opioids to cope with the physical pain he continued to experience as the result of his in-service injuries; and 3.) he used such opioids to cope with the symptoms of his acquired psychiatric disorder(s) resulting from the in-service physical altercation and the injuries sustained. In other words, the Veteran asserts that such opioids were prescribed to him in service, that his addiction began in service, and that he continued such use to cope and manage the physical and emotional pain that resulted from service. VA law precludes compensation for primary alcohol and drug abuse disabilities, for secondary disabilities that result from primary alcohol and drug abuse, and for disabilities due to willful misconduct. However, secondary service connection may be established "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). Thus, the Board remands this matter for a consideration of the Veteran's testimony as to his use of opioids to determine the etiology of the opioid use disorder. 6. Entitlement to a temporary 100 percent evaluation due to hospitalization longer than 21 days is remanded. The Board notes that the claim of entitlement to a temporary total disability evaluation due to hospitalization longer than 21 days is inextricably intertwined with the claim for entitlement to service connection for an acquired psychiatric disability and possibly intertwined with the claim for entitlement to service connection for an opioid use disorder (to include residuals of an opioid use disorder). Thus, it is appropriate to defer final appellate review of the temporary total disability evaluation issue until the inextricably intertwined claim of entitlement to service connection for a right shoulder disability has been adjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). The matters are REMANDED for the following action: 1. Obtain any and all outstanding VA treatment records, and/or private treatment records. For all outstanding private treatment records, to include any SARP clinic records, ask the Veteran to identify any relevant private treatment records and request that the Veteran submit or authorize for release such private treatment records. See August 2021 Hearing Transcript. 2. Obtain any and all outstanding service treatment records. Specifically take any necessary steps to ensure that all Service Treatment Records (STRs) have been obtained and associated with the file. Should they exist, associate such records with the Veteran's electronic claims file. The AOJ is directed to specifically request any outstanding service treatment records from the Veteran's time in Hanover, Germany, and any and all outstanding service treatment records from the Veteran's treatment while hospitalized as victim of the physical altercation in service. See August 2021 Hearing Transcript. Any negative responses should be included in the record. 3. Contact the Veteran and notify him that he is welcome and encouraged to provide any lay statements and any medical evidence related to all his claims. Such may be particularly helpful they relate to his claims for TDIU, increased rating of his deviated septum, entitlement to service connection for a right forearm disability, entitlement to service connection for an acquired psychiatric disability, and entitlement to service connection for opioid use disorder (to include residuals of such disorder). 4. Provide the Veteran with notice of the requirements to substantiate a claim for TDIU, including a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. 5. Thereafter, schedule the Veteran for a VA examination to evaluate the severity of his service-connected deviated septum. All indicated tests and studies shall be conducted. All relevant electronic records, including a copy of this remand and any records obtained pursuant to this remand, must be sent to the examiner for review. To the extent possible, the examiner should identify any symptoms and functional impairments due to the deviated septum and discuss the effect of the Veteran's disability on any occupational functioning and activities of daily living. A complete rationale should be provided for all opinions expressed. All symptoms relative to the Veteran's deviated septum disability should be set forth in detail. The examiner must specifically consider and acknowledge the Veteran's August 2021 Board Hearing testimony and asserted symptoms, to include clogging and drainage issues. See August 2021 Board Hearing Testimony. The examiner is advised that the Veteran is competent to report his symptoms and history, and that such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of his deviated septum disability. 6. After completing directives 1-3, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his asserted right forearm disability, to include numbness and painful scar. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the identified disabilities, including the Veteran's competent account of his symptoms. All appropriate testing should be completed, to include any imaging deemed necessary. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a.) The examiner is to identify whether the Veteran has any right forearm disability(ies), to include any numbness and painful scars, and is to list each disability identified. The examination should consider of the Veteran's testimony, service treatment records, and any imaging available. The examiner is reminded that "[p]ain alone, without an accompanying diagnosis of a present disease, can qualify as a disability." However, the pain must functionally impair the veteran to constitute a disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). (b.) For each disability identified in (a), is it at least as likely as not (50 percent probability or more) that the Veteran's right forearm disability had its onset in service or is otherwise related to service, to include his work with jackhammers as a combat engineer and any pieces that may have landed in his arm. In rendering this opinion, the examiner is asked to specifically address the Veteran's experiences in service and symptoms, as expressed at the August 2021 Hearing Testimony. See August 2021 Hearing Transcript. The examiner is reminded that Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge, to include symptoms experienced or observed. See also Layno v. Brown, 6 Vet. App. 465, 469-70. 6. After completing directives 1-3 above, request an opinion from an appropriate VA examiner to ascertain whether the Veteran has a psychiatric disorder, to include anxiety disorder and PTSD, that is related to service and to determine the etiology of the Veteran's opioid use disorder (to include any residuals of such use disorder). The entire claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Based on examination results and a review of the record the examiner should provide an opinion as to the following questions: Acquired Psychiatric Disorder(s) Other than Opioid Use Disorder: (a.) Does the Veteran have a current diagnosis of an acquired psychiatric disorder to include, PTSD and anxiety, other than an Opioid Use Disorder (and any such residuals)? The examiner is directed to consider the Veteran's August 2021 Board Hearing Testimony noting symptoms of and treatment for anxiety. (b.) For each identified acquired psychiatric disorder noted in (a.), is it at least as likely as not (50 percent or greater likelihood) the Veteran's diagnosis was incurred in or is otherwise related to the Veteran's service, to include sustaining injuries and falling victim to a physical altercation in service? The examiner is directed to consider the Veteran's August 2021 Board Hearing Testimony noting his symptoms as a result of his in-service injury. (c.) If PTSD is diagnosed, the examiner must identify the stressor(s) supporting the diagnosis. If the examiner determines that the Veteran has PTSD related to the claimed in-service stress of an in-service personal assault, fear of hostile action during active service, or other stressors the examiner should review the claims folder and render an opinion as to whether there is evidence of changed behavior after an alleged assault or any other evidence of record, which would be consistent with the alleged trauma, and offer an opinion as to the clinical significance, if any, or such evidenced changes. Additionally, the examiner should comment on the impact of the PTSD impairment on the Veteran's ability to engage in substantially gainful employment. (d.) For each diagnosed psychiatric disability other than PTSD and other than an Opioid Use Disorder, is it at least as likely as not (a fifty percent probability or greater) that the Veteran's psychiatric disability was caused by the Veteran's service-connected disability(ies), to include those resulting from the physical altercation in-service? (e.) For each diagnosed psychiatric disability other than PTSD and other than an Opioid Use Disorder, is it at least as likely as not (a fifty percent probability or greater) that the Veteran's psychiatric disability was aggravated (increased in severity) by the Veteran's service-connected disability(ies), to include those resulting from the physical altercation in-service? For all opinions provided above, the examiner is directed to consider and acknowledge the Veteran's August 2021 Board Hearing Testimony noting his symptoms as a result of his in-service injury. Opioid Use Disorder: (f.) Is it at least as likely as not (50 percent or greater likelihood) that the Veteran's Opioid Use Disorder (to include residuals of such disorder) were incurred in or are otherwise related to the Veteran's service, to include as related to sustaining injuries and falling victim to a physical altercation in service? The examiner is directed to consider and address the Veteran's August 2021 Board Hearing Testimony noting treatment and prescription of opioids in service, to include while being treated in the hospital during his recovery from the physical altercation. (g.) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's Opioid Use Disorder (to include residuals) was caused by the Veteran's service-connected disability(ies), to include those physical and/or emotional disabilities resulting from the physical altercation in-service? The examiner is directed to consider and address the Veteran's August 2021 Board Hearing Testimony noting use of opioids to cope with the physical and emotion pain the resulted from the physical altercation even post-service. (h.) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's Opioid Use Disorder (to include residuals) was aggravated (increased in severity) by the Veteran's service-connected disability(ies), to include those physical and/or emotional disabilities resulting from the physical altercation in-service? The examiner is directed to consider and address the Veteran's August 2021 Board Hearing Testimony noting use of opioids to cope with the physical and emotion pain the resulted from the physical altercation even post-service. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly dived that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Any opinions offered should be accompanied by the underlying reasons for the conclusions. If the examiner is unable to offer any of the requested opinions, a rationale should be provided for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 7. Then, after undertaking any additional development deemed appropriate, adjudicate the Veteran's pending claims in light of the additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Tunis, 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.