Citation Nr: 21005431 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 11-12 301 DATE: February 1, 2021 REMANDED The claim of whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss is remanded. The claim of whether new and material evidence has been received to reopen the previously denied claim entitlement to service connection for bilateral shin splints is remanded. The claim of entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to November 30, 2017, and in excess of 70 percent thereafter is remanded. The claim of entitlement to a rating in excess of 10 percent for mild traumatic brain injury (TBI) and post concussive headaches is remanded. The claim of entitlement to a rating in excess of 10 percent for temporomandibular joint disorder (TMJ) is remanded. The claim of entitlement to service connection for bilateral upper extremity peripheral neuropathy, to include as secondary to cervical spine disability is remanded. The claim of entitlement to service connection for allergic rhinitis is remanded. The claim of entitlement to service connection for eye disability, to include right eyelid dysfunction is remanded. The claim of entitlement to service connection for a foot disability, to include bilateral ingrown toenails and plantar warts is remanded. The claim of entitlement to a total disability rating for based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2002 to August 2006 in the United States Army and had subsequent periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). She was awarded the Purple Heart Medal for wounds received in combat in Iraq. This case comes before the Board of Veterans’ Appeals (Board) on appeal of December 2009 and March 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This case was previously before the Board in January 2015 at which time it was remanded to provide the Veteran with her requested hearing. The Veteran appeared at a July 2015 hearing in Winston-Salem, North Carolina before a Veterans Law Judge (VLJ). A transcript of the proceeding has been associated with the claims file. In February 2017, a letter was sent to the Veteran and her representative informing them that the VLJ that conducted the hearing was no longer employed at the Board and that the Veteran has a right to request a new hearing. 38 U.S.C. § 7107(d); 38 C.F.R. §§ 19.3 (b), 20.707. Neither the Veteran nor her representative, on her behalf, have indicated that she wishes to have an additional hearing. As such, the Board may proceed on the appeal. This case was again before the Board in August 2018 at which time the Board reopened a previously denied claim of entitlement to service connection for bilateral ingrown toenails and warts on the feet based on the submission of new and material and remanded the claim on the merits, as well as the remaining claims listed above, for additional development. 1. All issues Although the Board regrets the delay, the appeal must be remanded to fulfill the duty to assist the Veteran. In the August 2018 remand, the Board directed VA to obtain VA medical records and authorization for the Veteran’s private medical records that had been identified. There is no indication that the agency of original jurisdiction (AOJ) attempted to obtain such records. See Stegall v. West, 11 Vet. App. 268 (1998). First, a VA treatment note from April 7, 2014 indicates the Veteran was receiving treatment from Piedmont Interventional Pain Care the month prior. VA appears to have records from this treatment, but it is still not included in the claims file. The Board directed VA to locate the records in VistA, a separate VA system, and associate the records with the claims file. See June 2014 VA Treatment Note. Although the July 2020 rating decision adjudicating some issues indicates that records from the remand were obtained, review of these VA medical records does not show the Piedmont records. Regardless of whether this record is in VistA, this evidence has been identified as relevant to claims on appeal and VA must attempt to obtain it. If necessary, the RO should request authorization from the Veteran for release from the treating source. Additionally, the Veteran’s chiropractic treatment records from 2007 show that the Veteran was separately being seeing by a Dr. V. The records of the Veteran’s treatment from Dr. V. have not been sought. Because VA was directed to obtain the evidence from Dr. V and Piedmont as contains treatment relevant to the above issues on appeal, the RO must attempt to obtain the Veteran’s records from Piedmont Interventional Pain Care and from Dr. V. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Furthermore, since the August 2018 remand, the Veteran has been granted service connection for injuries that occurred in a motor vehicle accident while on INACDUTRA, during a drill weekend. The Veteran’s reserve personnel records have been obtained and show that she had service at least through 2010, however, her complete service treatment records from her reserve service after 2007 are not associated with the claims file. See March 2008 Physical Profile. Here, the Veteran received treatment from injuries on INACDUTRA at Womack Army Medical Center in 2007 and VA medical records indicate additional treatment may have occurred in 2009. The Board finds the RO should verify that all outstanding service treatment records are obtained, including all medical records from Womack Army Medical Center should be obtained. Finally, the Veteran submitted records from Pineville CHS (Carolina Healthcare System) that include an admission for psychiatric purposes due to suicidal ideation. See December 2017 Medical Record. It is unclear whether the Veteran’s full records from this facility have been obtained, the RO did not make a request for the Veteran to authorize release of this medical evidence. On remand, the Veteran should be requested to authorize release of any relevant medical records Pineville CHS. Because these records may contain evidence relevant to these claims, the appellate issues involving service connection, increased evaluations, and new and material evidence are remanded for these records to be requested and obtained. As discussed below, the Board also finds additional development is necessary. 2. Allergic rhinitis The Veteran is seeking service connection for a sinus disability. She claims that her sinus disability is related to her military service. Specifically, she asserts that she experienced an increase in symptoms of allergies following exposure to burn pits and irritants in Iraq. See September 2019 Examination. As to in-service injury or disease, the Veteran was prescribed Zyrtec in service for seasonal allergies. See March 2003 Medical Record. Pursuant to the August 2018 remand, the Veteran was afforded VA examination in September 2019 to determine the nature and etiology of her sinus disability. The VA examiner found that the Veteran manifested allergic rhinitis; recorded the Veteran’s reports allergies since childhood, an increase in symptoms following exposure to burn pits in service, and that her symptoms had worsened since service. The examiner did not provide an opinion on whether allergic rhinitis was aggravated by service. The Board finds that 38 C.F.R. § 3.380 is implicated by the facts of this appeal. 38 C.F.R. § 3.380 indicates that diseases of allergic etiology, including bronchial asthma and urticaria, may not be disposed of routinely for compensation purposes as constitutional or developmental abnormalities. Service connection must be determined on the evidence as to existence prior to enlistment and, if so existent, a comparative study must be made of its severity at enlistment and subsequently. Increase in the degree of disability during service may not be disposed of routinely as natural progress nor as due to the inherent nature of the disease. Seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The determination as to service incurrence or aggravation must be on the whole evidentiary showing. See 38 C.F.R. § 3.380. Given the above, an additional opinion is warranted regarding whether the Veteran’s allergic rhinitis was incurred in or aggravated by service. Barr v. Nicholson, 21 Vet. App. 303 (2007). 3. Eye disability, to include right eyelid dysfunction The Veteran was denied service connection for eye disability, because her disability was considered to be refractive errors of the eye and VA regulations specifically prohibit service connection for refractive errors of the eye unless such defect was subjected to a superimposed disease or injury which created additional disability. 38 C.F.R. §§ 3.303(c), 4.9. At her hearing in July 2015, the Veteran reported worsening of her eye disability and a right eye twitch after the mortar explosion that caused her right temple scar. The Veteran also underwent surgery in service to correct myopia and astigmatism. See August 2004 Medical Record. Pursuant to the August 2018 remand, the Veteran was afforded a VA examination in September 2019. The examiner found the Veteran did not have a visual disability, but that she had astigmatism; however, the examiner also noted that the Veteran reported eyelid twitching that affected both eyes. The Veteran is service connected for a painful right eyebrow scar that is the result of injury in service but the examiner did not provide an opinion on whether the Veteran’s complaints of right eyelid twitching was a pathological disease or injury, to include whether this condition involved muscle or neurological disability. Thus, the Board finds the September 2019 opinion is inadequate for adjudication purposes because the examiner did not address the explicit directive to consider the Veteran’s complaints of right eye twitching and whether this represents disability due to service. An additional opinion is warranted regarding whether the Veteran manifests a visual disability that was incurred in service. Barr, 21 Vet. App. at 303. 4. A foot disability, to include bilateral ingrown toenails and plantar warts In the August 2018 decision/remand, the Board reopened this claim based on the Veteran’s competent and credible testimony of ongoing symptoms of recurrent bilateral ingrown toenails and warts. The Veteran’s service records show reports of ingrown toenails and plantar warts. See March 2003 Medical Record; see also September 2004 Medical Record. While the Veteran was examined on separation from service and did not manifest these disabilities at that time, she provided testimony that these disabilities are recurrent, but intermittent. Given the service record evidence of in-service disease or injury and the Veteran’s lay statements that these symptoms have been present since service, the low threshold for a VA examination has been met and a remand for a VA examination and opinion is warranted. McClendon v. Nicholson, 20 Vet. App. 79 (2006). 5. TDIU Finally, the Board finds that the claim for a TDIU is inextricably intertwined with the increased rating claims herein as the development of the Veteran’s claim could significantly impact a decision on the issue of entitlement to a TDIU. As such, a remand of these claims is required. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board also finds an updated VA Form 21-8940, application for TDIU is warranted to clarify the Veteran’s employment history in light of the conflicting evidence of record concerning her work history since May 2012. The evidence suggests the Veteran has been employed on an intermittent basis during this period of time on a full-time basis. See October 2014 Report of Contact; May 2015 Hearing Transcript; September 2019 Examination. As such, the record is unclear as to the nature and frequency of the Veteran’s employment and whether any such employment was substantially gainful. Upon remand, the AOJ should request that the Veteran clarify her employment and earnings history as such information would be helpful in adjudicating her TDIU claim. The matters are REMANDED for the following action: 1. Request the Veteran identify and authorize for release any medical treatment records that relate to the issues on appeal, and specifically records from Piedmont, Dr. V., Pineville CHS. 2. Request that the Veteran complete an updated application for TDIU (VA Form 21-8940) to clarify the Veteran’s employment status, and to specifically clarify the Veteran’s employment since May 2012. 3. After securing any necessary releases, request any identified records that are not duplicates of those already associated with the claims file. If any requested records cannot be obtained, the Veteran should be notified of such pursuant to 38 C.F.R. § 3.159 (c). 4. Obtain all outstanding electronic medical records stored in systems other than CAPRI, including VistA Imaging. 5. Obtain all outstanding service treatment and personnel records, including all records from Womack Army Medical Center. 6. Request an addendum from the VA examiner who provided the September 2019 VA opinion regarding allergic rhinitis. If the previous examiner is no longer available, then the requested opinion should be rendered by another qualified examiner. The need for an additional examination of the Veteran is left to the discretion of the physician. The examiner is asked to address the following: (a) Provide a brief comparative study of the Veteran’s allergic rhinitis severity at enlistment and throughout service. (b) Did the Veteran’s allergic rhinitis clearly preexist her military service? (c) If the Veteran’s allergic rhinitis clearly preexisted her military service, is it clear that the allergic rhinitis was not aggravated beyond the normal progression of the disease during service? (d) If the answer to (b) or (c) is no, for purposes of the opinion please accept as fact that the Veteran did not have allergic rhinitis at entry into service. While the Board recognizes that the evidence may suggest the presence of disability at entry into service, in certain situations the Board must consider the Veteran free of disability. With that premise in mind, is it at least as likely as not (50 percent probability or more) that the current allergic rhinitis had its onset in or is otherwise related to the Veteran’s military service? 7. Request an addendum from the VA examiner who provided the September 2019 VA opinion regarding the Veteran’s claimed eye disability. If the previous examiner is no longer available, then the requested opinion should be rendered by another qualified examiner to determine the nature and etiology of any eye disability, to include right eye twitching. The examiner must opine whether eye disability, to include right eye twitching represents neurological or muscle disability and if so, is such disability is at least as likely as not caused or aggravated by an in-service injury or onset of disease, include the mortar explosion. The examiner must also opine whether any refractive error of the eye was subject to a superimposed disease or injury which created additional disability, to include the mortar explosion. 8. Schedule the Veteran for an examination regarding her claim for service connection for bilateral ingrown toenails and plantar warts. The examiner must opine whether bilateral ingrown toenails and plantar warts disability is at least as likely as not caused or aggravated by an in-service injury or onset of disease. (Continued on the next page)   The examiner is advised the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for all opinions provided. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Trickey 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.