Citation Nr: 21076475 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-52 701 DATE: December 23, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a skin disability is remanded. Entitlement to service connection for headaches is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1968 to August 1970, to include service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from an October 2012 notification of a rating decision. The Veteran testified at a Board hearing in March 2019. The Board remanded these matters in October 2019. At the time, the Veteran's appeal included the issue of service connection for a right eye disability. Since then, an April 2020 rating decision granted service connection for right eye glaucoma. Therefore, the issue of service connection for a right eye disability is no longer on appeal. Finally, the Board notes that recently, in September 2021, the Veteran's attorney requested to withdraw as representative of the Veteran. The attorney explained that she had been unable to contact the Veteran in over 12 months, compelling her to withdraw as his representative. She also certified having sent copy of the motion to the Veteran. 09/20/2021, Third Party Correspondence. The attorney has shown good cause to withdraw as the Veteran's representative. Accordingly, the attorney's motion to withdraw as the Veteran's representative is granted. The Veteran is advised that he may appoint a different representative at any time. 1. Entitlement to service connection for a lumbar spine disability is remanded. Since 2010, VA treatment records show complaints of chronic low back pain. An August 2010 VA treatment note describes the Veteran's history as follows: "chronic low back pain, had fusion of 2 discs in 1086, workman's comp was on the job, state of IN, has been on pain meds since." 10/04/2012, CAPRI, at 156. The Veteran submitted a private medical opinion in July 2019. 07/02/2019, BVA-General. The private physician opined that the Veteran's lumbar disability was at least as likely as not related to service. In support, the physician stated that the Veteran fell during service. However, the physician does not mention the Veteran's injury after service where he had lumbar fusion and that it was a workplace injury. As such, the Board finds this opinion to have no probative value as the physician's opinion appears to be based on an incomplete factual record. In October 2019, the Board remanded for a VA examination and opinion. A December 2019 VA examination shows diagnoses of degenerative arthritis of the spine and spine fusion, as well as lumbar radiculopathy of the left lower extremity. The Veteran reported occasional pain down the back of his left leg, triggered by actions such as bending, twisting, and pushing. The Veteran confirmed that he underwent lumbar fusion of discs in 1986 and that this was related to a work-related injury, after he slipped while moving a bed up a set of stairs. The December 2019 VA examiner opined that the Veteran's back disability is less likely than not related to service or secondary to a service-connected disability. The examiner's rationale (for both the direct and secondary service connection questions) was essentially that there was no record of a lumbar disability in service or prior to the 1986 work-related injury. The December 2019 VA opinion is overwhelmingly based on the absence of corroborating evidence and lacks a comprehensive medical rationale. The opinion also skirts any discussion of the Veteran's report of back symptoms since service. For these reasons, the Board finds that an adequate VA opinion is not of record. 2. Entitlement to service connection for a skin disability is remanded. The Veteran's medical records are absent for a skin disability diagnosis. He testified at the Board hearing that he has spots on his skin that he believes are due to sun exposure while in service. Alternatively, he contends that they are due to herbicide agent exposure. The Veteran is competent to describe skin spots, but not diagnose a skin disability. Based on this lay evidence, the Board, in October 2019, remanded for a VA examination. A December 2019 VA examination indicates that the Veteran does not have a current skin condition. Per the examiner, the Veteran informed that he has not been evaluated for any skin condition and that he does not any current issues. His only complaint was that, in summertime, brown spots will appear on his chest but then go away. The examiner explained that the Veteran does not have any objective findings or evidence of having a skin condition. The medical and lay evidence suggests that the Veteran experiences seasonal skin symptoms. The nature and etiology of these symptoms, however, is unclear. Since these seasonal symptoms could be manifestations of a skin condition that was incurred in service, the Board finds that an addendum opinion is necessary. 3. Entitlement to service connection for headaches is remanded. The Veteran's medical records are absent for a diagnosis of headaches. However, he testified at the Board hearing that he has had headaches during the period on appeal that he believes are related to service. Additionally, he asserts that he was hit in the head with a metal pot and fell off his bed while in service. Based on this lay evidence, the Board, in October 2019, remanded for a VA examination. A December 2019 VA examination shows a diagnosis of tension headaches. The examiner opined that the Veteran's headaches are less likely than not related to service or secondary to a service-connected disability. Regarding direct service connection, the examiner acknowledges the Veteran's report of hitting head with a metal pot and falling off bed during service but explained that such injuries would not be the cause of tension migraines, as the latter occur during a stressful period or tense state. The examiner further indicated that the Veteran had stated that his headaches occur when he is stressed. Regarding secondary service connection, the examiner stated that the Veteran "currently does not have any service-connected disabilities." This assertion, however, is not accurate, as the Veteran is service-connected for multiple disabilities, including some, such as hypertension and PTSD, that could be either causing or aggravating his headaches. Thus, the Board finds that an adequate opinion is not of record. Another remand is necessary. 4. Entitlement to a TDIU is remanded. As discussed in the Board's October 2019 remand, the issue of entitlement to a TDIU has been raised by the record. In a remand directive, the Board instructed the AOJ to develop the Veteran's TDIU claim. A review of the record reflects that, in April 2020, the AOJ sent a development letter to the Veteran, asking him to submit VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and, if possible, a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, for each employer identified on the VA Form 21-8940. There is no indication that the Veteran has submitted any of these forms. Similarly, there is no indication that the AOJ has readjudicated the issue of a TDIU via a supplemental statement of the case. In view of this, the appropriate course of action is to remand the Veteran's TDIU claim for any additional development deemed necessary and readjudication. These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Obtain a new opinion regarding the Veteran's lumbar spine disability. The examiner must address whether: (a.) Is it at least as likely as not (probability of approximately 50 percent) that the Veteran's lumbar spine disability was caused by a disease or injury in service? (b.) If no, is it at least as likely as not (probability of approximately 50 percent) that the Veteran's lumbar disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? ***The Veteran is service-connected for bilateral knee disabilities, among others.*** 3. Obtain a new opinion regarding the Veteran's skin disability. The examiner must address whether: (a.) Is it at least as likely as not (probability of approximately 50 percent) that the Veteran has a seasonal skin disability that is related service, to include exposure to sun and/or herbicide agents? 4. Obtain a new opinion regarding the Veteran's headaches. The examiner must address whether: (a.) Is it at least as likely as not (probability of approximately 50 percent) that the disability was caused by a disease or injury in service, to include both sun exposure and exposure to herbicide agents? (b.) If no, is it at least as likely as not (probability of approximately 50 percent) that the Veteran's disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? ***The Veteran is service-connected for hypertension and PTSD, among others.*** 5. Inform EACH examiner that a comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) 6. Lastly, send appropriate notice to the Veteran regarding TDIU and complete any necessary development. This should include sending the Veteran an application form (VA Form 21-8940) and advising the Veteran of the necessity of notifying the AOJ of his employment history and his educational background for proper adjudication of this claim. He should be asked to specifically identify by date the period or periods during which he claims individual unemployability due to service-connected disabilities. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.