Citation Nr: 21010325 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 19-00 068A DATE: February 24, 2021 ORDER Entitlement to a higher evaluation for hypogeusia has been withdrawn. Entitlement to a higher evaluation for hyposmia has been withdrawn. Entitlement to service connection for bilateral hearing loss has been withdrawn. Entitlement to service connection for erectile dysfunction has been withdrawn. Entitlement to a compensable evaluation for pseudofolliculitis barbae is denied. Entitlement to an evaluation in excess of 10 percent for lumbosacral strain, sacroiliac injury, is denied. REMANDED Whether the Veteran's character of discharge for the period of service of March 23, 2013 through January 13, 2017 serves as a bar to VA benefits, is remanded. Entitlement to service connection for a dental disorder is remanded. Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for chronic fatigue is remanded. Entitlement to service connection for TBI is remanded. Entitlement to service connection for left elbow disorder is remanded. Entitlement to service connection for right elbow lateral disorder is remanded. Entitlement to service connection for right hand disorder is remanded. Entitlement to service connection for left upper peripheral neuropathy is remanded. Entitlement to service connection for right upper peripheral neuropathy is remanded. Entitlement to service connection for hemorrhoids is remanded. Entitlement to service connection for right hip disorder is remanded. Entitlement to a higher evaluation for migraine headaches, is remanded. Entitlement to a higher evaluation for vertigo, is remanded. Entitlement to a higher evaluation for allergic rhinitis, is remanded. Entitlement to an earlier effective date for the granting of service connection for migraine headaches is remanded. Entitlement to an earlier effective date for the granting of service connection for tinnitus is remanded. Entitlement to an earlier effective date for the granting of service connection for allergic rhinitis is remanded. Entitlement to an earlier effective date for the granting of service connection for hyposmia is remanded. Entitlement to an earlier effective date for the granting of service connection for hypogeusia is remanded. Entitlement to an earlier effective date for the granting of service connection for vertigo is remanded. FINDINGS OF FACT 1. In July 2020, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeals for entitlement to increased evaluations for hypogeusia and hyposomia, and entitlement to service connection for erectile dysfunction and bilateral hearing loss. 2. Throughout the entire period on appeal, the Veteran’s pseudofolliculitis barbae covered less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and no more than topical therapy was required during any 12-month period. 3. For the entire period on appeal, the Veteran's low back disability has been manifested by pain, with range of motion, at worse, limited to 80 degrees of flexion, to include during flare-ups. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals of entitlement to increased evaluations for hypogeusia and hyposomia, and entitlement to service connection for erectile dysfunction and bilateral hearing loss, have been met by the Veteran. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for entitlement to an initial compensable rating for pseudofolliculitis barbae have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic code (DC) 7813, 7806. 3. The criteria for an initial evaluation in excess of 10 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.71a, DC 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 23, 2009 to March 22, 2013 and from March 23, 2013 to January 13, 2017, at which time he was discharged under other than honorable conditions (OTH). This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2017, December 2017, January 2018, and January 2019 decisions of a VA Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge (VLJ) in July 2020. Errors in the transcription were identified, and the Veteran and his representative were notified of this issue. The parties were given the option to undergo another hearing, but declined in lieu of submission of a supplemental statement received in January 2021. The Board notes that the issue of whether the Veteran’s character of discharge serves as a bar to the receipt of VA benefits has been recharacterized on the title page. This recharacterization reflects the November 2017 VA Administrative Decision ruling that the Veteran’s period of honorable service extends to March 22, 2013 via conditional discharge. Thus, March 23, 2013 is the proper beginning of the second, currently not honorable for VA purposes, period of the Veteran’s service, contrary to the date of October 26, 2012 as adjudicated in the November 2018 Statement of the Case (SOC). Concerning the claims of entitlement to service connection for treatment purposes only under 38 U.S.C. chapter 17 for the claims of TBI, dental, right ankle, and chronic fatigue disorders, these issues have been recharacterized as claims to entitlement to service connection in light of the above-noted error. Specifically, the November 2017 rating decision which awarded service connection for treatment purposes only under 38 U.S.C. chapter 17 for the claims of TBI, dental, right ankle and chronic fatigue disorders adjudicated these issues utilizing the improper date of October 26, 2012 for the beginning of the Veteran’s second period of service as opposed to the correct date of March 23, 2013 as determined in the November 2017 VA Administrative decision. Thus, upon remand, the claims of entitlement to service connection for TBI, right ankle, dental and chronic fatigue disorders should be readjudicated and an Supplemental SOC (SSOC) issued giving due consideration to the time frame outside of the October 2012 to January 2017 window which was erroneously on appeal. Concerning the claims of entitlement to service connection for an acquired psychiatric disorder, left knee disorder, right knee disorder, eczema, right shoulder disorder, and left shoulder disorder, the Board finds that VA has a responsibility to issue a SOC on these issues so that the Veteran may complete an appeal by filing a substantive appeal. See 38 C.F.R. § 19.9(c). While the Veteran timely challenged entitlement to service connection for these issues in his January 2018 Notice of Disagreement (NOD), to date, the VA has yet to issue an SOC readjudicating the matters. See July 2020 Board hearing transcript (“VA hasn’t done anything with those appeals”). These matters are accordingly REFERRED back to the RO for appropriate action. Withdrawn Claims 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. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn the appeals of entitlement to increased evaluations for hypogeusia and hyposomia, and entitlement to service connection for erectile dysfunction and bilateral hearing loss. See July 2020 Board hearing transcript ("so those four claims are going to be withdrawn…Yes, Sir"). Hence, regarding these issues, there remains no allegation of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these claims, and the appeals are dismissed. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Entitlement to an increased evaluation for pseudofolliculitis barbae. In light of the above grant of an earlier effective date, since the day after his discharge the Veteran’s pseudofolliculitis barbae (PFB) disability has been assigned an initial noncompensable evaluation under DC 7813-7806, throughout the entire period on appeal. Upon review of the record the Board finds that an increased rating is not warranted at any point during the appeal period. The Veteran has a noncompensable rating for PFB under DC 7813-7806. 38 C.F.R. § 4.118. Under DC 7813, dermatophytosis (ringworm: of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium; of inguinal area (jock itch), tinea cruris) is rated for disfigurement of the head, face, or neck under DC 7800; scars under DC 7801, 7802, 7803, 7804, or 7805; or rated for dermatitis under DC 7806, depending upon the predominant disability. In this case, the Board finds that scarring is the predominant disability. The clinical descriptions by the August and October 2017 VA examiners indicate the Veteran's primary PFB symptom is “PFB on chin and neck<5% total and exposed body surface area.” VA recently amended DC 7806, but claims pending on August 13, 2018 may be considered under the pre-amended and amended criteria, whichever is more favorable. 83 Fed. Reg. 32592 (August 13, 2018). In this case, the pre-amended version is more favorable and will be applied. Id.; 38 C.F.R. § 4.118, DC 7806 (2017). Under pre-amended DC 7806, a 10 percent rating requires that at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas be affected, or intermitted systemic therapy such as corticosteroids or other immunosuppressive drugs be required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating requires that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas be affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs be required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating requires that more than 40 percent of the entire body or more than 40 percent of exposed areas be affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs be required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. The Board notes that there have multiple Court rulings on the definition of systemic therapy under DC 7806. However, the record does not indicate that the Veteran takes medication for PFB, and discussion of these rulings is therefore unnecessary. The Veteran underwent a skin diseases VA examination in August 2017 where he was assessed with multiple skin conditions including pseudofolliculitis barbae of the “chin area” resulting in symptoms of “impact when shaving.” No medicinal treatment was reported, only the use of moisturizer. The examiner assessed that “<5%” of the face, neck or hands was exposed to the condition. The Veteran was subsequently examined in October 2017 and assessed with “PFB on chin and neck…no scarring…<5% total and exposed body surface area.” In light of the above, the Board finds that an initial compensable disability rating is not warranted. Overall, there is no lay or medical report suggesting that PFB manifested with additional symptoms, a greater affected area, or use of medication to warrant consideration of a higher rating under DC 7806 or compensable rating under an alternative DC. In coming to this determination, the Board acknowledges that, as testified by the Veteran’s representative during the July 2020 hearing, that in the Remarks section of the August 2017 report there is a statement reflecting “Total Exposed Body Area is 20% to 40%.” However, the predicate to this statement is the notation that “the percentage of Total Body Area affected by Pseudofollicular barbae is <5%.” In light of the explanatory, preceding sentence, coupled with the fact that prior in the report the examiner also identified <5% exposure owing to PFB, the Board finds counsel’s arguments not persuasive as the “20% to 40%” total body area exposed clearly related to the other skin conditions identified in the examination including eczema of the left arm. Moreover, this conclusion is bolstered by the findings reported in the subsequent October 2017 VA examination report. For the foregoing reasons, the preponderance of the evidence is against an initial compensable rating for service-connected PFB, the benefit of the doubt doctrine is not for application and this claim must be denied. 38 U.S.C. § 5107(b). Entitlement to an increased initial evaluation for lumbar spine disability. The Veteran's lumbar disability is currently assigned a 10-percent rating under DC 5237, effective January 14, 2017, the day following the Veteran’s discharge from service. The Board finds that a rating greater than 10 percent is not warranted for the lumbar spine disability at any point during the period on appeal. Under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235-5243), the General Rating Formula provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis or the entire thoracolumbar spine warrants a 40 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. Id. Diagnostic Codes 5003 and 5010 require that arthritis be evaluated on the basis of limitation of motion, if compensably disabling based on the effect of arthritis on the affected joints. 38 C.F.R. § 4.71a. There is also a formula for rating intervertebral disc syndrome (IVDS) based on incapacitating episodes (prescribed bed rest). 38 C.F.R. § 4.71a. In this case, incapacitating episodes requiring prescribed bed rest are not shown. A November 2017 VA examination identified diagnoses of lumbar strain and sacroiliac injury. The Veteran reported an onset of the condition in 2012 and that it “is still bothersome, but better than before.” The Veteran reported intermittent flare-ups which result in “constant, dull ache” occurring during sit-ups, sitting for a long period of time or in an awkward position. The Veteran reported mitigation of symptoms with OTC pain relivers and physical therapy and episiotomy cushion. Physical evaluation revealed “all normal” range of motion (ROM) of flexion to 90 degrees with pain, extension to 30 degrees. No additional loss on repetition and no evidence of pain on weight bearing with localized, moderate tenderness or pain on palpation on lower lumbar region. No muscle spasm, abnormal gait or guarding were identified. Muscle strength was normal. Sensory testing was normal as was strength leg raising test. No radiculopathy or IVDS were identified. The Veteran underwent another VA examination in October 2020 where an assessment of lumbar strain was diagnosed. The Veteran reported an onset of the condition in 2010 with symptoms of aching pain, tenderness and pain with activity alleviated by chiropractor and massage. The Veteran reported severe flare-ups occurring once a week lasting half a day precipitated by sitting on hard surfaces and alleviated by standing. Physical evaluation revealed ROM of flexion to 90 degrees, extension to 30 degrees, right lateral flexion to 30 degrees and left lateral flexion, left and right lateral rotation to 25 degrees limiting the Veteran’s ability to bend, reach, walk, stand and carry and exert himself. No pain or additional loss on repetition was observed. Estimated impact of flare-ups on ROM was flexion to 80 degrees with pain, extension to 25 degrees, right lateral flexion to 30 degrees and left lateral flexion, left and right lateral rotation to 25 degrees. No muscle spasm, abnormal gait or guarding were identified. Muscle strength was normal. Sensory testing was normal as was strength leg raising test. No radiculopathy was identified. No IVDS was identified. The examiner concluded that the Veteran must be allowed a cushion to sit on at work and could benefit from a standing desk. After reviewing the evidence of record as a whole, the Board finds that the assignment of a rating in excess of 10 percent for the Veteran's service-connected lumbar spine disability is not warranted. Notably, flexion of the thoracolumbar spine has been no worse than to 80 degrees, warranting no more than the 10 percent rating currently assigned. The Board notes that the assignment of a disability rating should take into account of limitation of functional ability during flare-ups or when a joint is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Notably, the VA examiners performed the required testing and made the relevant inquiries to determine how pain impacts the Veteran. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiner, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The reports do not suggest that the specific findings on examination, in terms of range of motion, would change for a meaningful duration to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran's lay statements. Significantly, the VA examiners noted that the Veteran's low back was not additionally limited after observed repetitions. In addition to testing, the Veteran has been asked to describe functional loss and impairment in various situations, and she has not identified that she has loss of motion to the degree required for higher ratings. The Board again acknowledges that the Veteran has pain, weakened movement and less movement than normal. This is well documented in the lay and medical evidence. Furthermore, the Board again accepts that she has functional impairment, pain and limited motion as demonstrated at the VA examinations and in her statements. See DeLuca, supra. However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for an evaluation in excess of 10 percent including during a flare-up. Therefore, even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board does not find that the Veteran's functional losses equate to the criteria required for a greater rating under 38 C.F.R. § 4.71a, DC 5237. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.45, 4.71a. As noted above, Diagnostic Code 5243 provides for rating disabilities of the spine under either the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating IVDS, which results in the higher rating. However, there is no evidence of incapacitating episodes as contemplated by the regulation, and neither the lay nor medical evidence suggests that there has been physician prescribed bed rest. In light of the lack of evidence demonstrating any episodes requiring bed rest prescribed by a physician and treatment by a physician for intervertebral disc syndrome, and indeed, in light of the lack of any assertion on the part of the Veteran that the criteria for incapacitating episodes have been met, the Board finds that a higher rating under the formula for rating intervertebral disc syndrome based on incapacitating episodes is not warranted during this period. In conclusion, a preponderance of the evidence is against finding an increased rating in excess of 10 percent for the Veteran's service-connected low back disability. REASONS FOR REMAND Whether the Veteran's character of discharge for the period of service of March 23, 2013 through January 14, 2017 serves as a bar to VA benefits The Veteran, in essence, asserts that he is entitled to an exception to the regulatory bar of VA benefits by way of his discharge misconduct being due to mental-health related insanity pursuant to 38C.F.R. §3.354. See i.e. January 2021 Veteran statement (“Did you experience mental health symptoms during your second period of military service…Yes…after my second tour of Afghanistan I began to experience more frequent episodes of violent and non-violent outbursts…while in service I was referred to behavioral health where I received psychotherapy”) Service treatment records corroborate the Veteran’s claims of psychiatric care while on active duty, and his post-service medical record reflects current psychiatric diagnoses. See i.e. September 2016 Report of Medical History (“psychiatric: current dx includes adjustment disorder D/O, BPD, PTSD, anxiety d/o, MDD needs continued tx”); June 2020 VAMC Mental Health note (“Psychiatry: Bipolar disorder… Other diagnosis: PTSD, Depression, Anxiety, Intermittent Explosive Disorder”). The Board is cognizant that a serviceman applying for an insanity exception has the burden of presenting competent evidence of insanity at the time of commission of the offenses leading to discharge. See Stringham v. Brown, 8 Vet. App. 445, 449 (1995). However, the Board is required to obtain a medical opinion to determine whether a claimant's behavior during the offenses that led to his discharge was due to psychiatric disability. Gardner v. Shinseki, 22 Vet. App. 415 (2009), see also Beck v. West, 13 Vet. App. 535, 2000) (although insanity need not be causally connected to the misconduct that led to the discharge, it must be concurrent with that misconduct and requires competent medical evidence to establish a diagnosis). Accordingly, given the evidence of record reflecting that the Veteran may have had psychiatric impairment in service, especially in light of his current diagnoses, the Board finds that medical development is warranted on the issue of his mental state at the time of the misconduct that led to his unfavorable January 2017 discharge. Additionally, a review of the record indicates that some of the Veteran’s personnel files appear to be outstanding. Specifically, the Veteran’s administrative separation paperwork does not appear to be associated with the claims file, nor any materials associated with his alleged altercation with a fellow service member as recounted in his January 2021 statement. Further, it is not clear from the record if the Veteran has ever applied to the Department of Defense for an upgraded discharge, and if so, an attempt to procure those materials should be undertaken as well. Service connection and effective date claims As the Veteran’s pending service connection and effective date (concerning an application received within one year of the second period of service) claims are inextricably intertwined with the issue of whether his character of discharge from his second period of service is a bar to VA benefits, all of those claims are remanded for contemporaneous adjudication. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board notes that said readjudication must properly consider the determination of the November 2017 VA Administrative decision which identified the beginning of the second period of service as March 23, 2013, not October 26, 2012 as erroneously used in prior adjudications by the RO. Entitlement to a higher evaluations for migraine headaches and vertigo The Board acknowledges that the Veteran was recently afforded VA examinations for his migraine headache and vertigo disabilities in October 2020. However, a review of the reports reveals deficiencies which necessitate further development before they may be relied upon for adjudicative purposes by the Board. Concerning the VA headache examination, the Board finds that an addendum opinion is necessary to clarify the existence, if any, of prostrating attacks. In his July 2020 Board hearing, the Veteran testified as to suffering from prostrating attacks, as assessed during his November 2017 VA examination. However, neither severe nor prostrating attacks were assessed during the October 2020 VA examination, despite the examiner’s finding that the “7-8 severe migraines” a month resulted in a loss of functional capacity. Regarding the VA examination for vertigo, at his July 2020 Board hearing the Veteran testified that his primary symptom of the disability was “staggering.” However, “staggering” was not assessed during the October 2020 VA examination. Therefore, the Board finds that an addendum opinion must be procured which fully addresses the lay statements and testimony of the Veteran and clarifies the existence, if any, of staggering symptomatology. Lastly, the October 2020 VA examiner concluded that the Veteran “may need to miss work once a month” for both his vertigo and headaches, but did not provide further explanation as to whether this opinion was referring to similar or disparate symptomatology amongst the two disabilities. Therefore, the Board finds that a clarifying addendum opinion is necessary to parcel out the specific symptoms associated with each disability, especially in light of the Veteran’s testimony as to the intertwined nature of his headache and vertigo symptoms. See July 2020 Board hearing transcript (“Lots of times the migraines are coupled with nausea, dizziness. And I think that’s in account to my vertigo, I’m not entirely sure. I’m not a doctor, so I can’t say”). Entitlement to a higher evaluation for allergic rhinitis The Board finds that the Veteran's claim for an increased rating for his service-connected rhinitis must be remanded in order to afford him a contemporaneous VA examination in order to assess the current nature and severity. In this regard, the record reflects that the Veteran was most recently afforded a VA examination in November 2017. Since that time, the Veteran has testified as to an increase in the severity of his symptoms such as blockage of his nasal passages from swelling during flare-ups. In light of the allegations of worsening symptoms that were not identified during the prior VA examination, and the amount of time which has passed since the Veteran was last examined, the Board finds that a remand is required in order to afford the Veteran a contemporaneous VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following actions: 1. Attempt to obtain, through all indicated and appropriate sources, the Veteran’s complete service personnel record. Such sources should include: (a.) the National Archives and Records Administration; (b.) the VA Records Management Center; (c.) the National Personnel Records Center; (d.) Joint Services Records Research Center; (e.) the Department of the Navy, to include the Navy Board for Correction of Military Records; and the Naval Discharge Review Board All efforts to obtain these records should be documented. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This determination should be documented in the claims file and the Veteran and his representative must be notified. If the records do not exist, or further efforts to obtain them would be futile, issue a formal finding documenting the efforts undertaken and notify the Veteran and his representative in accordance with 38 C.F.R. § 3.159(e). 2. Following the completion of the above, schedule the appellant for a VA mental health examination to specifically include opinions as to whether the Veteran has a current psychological condition, was suffering from a psychological condition during service, and was insane for VA purposes at the time of the misconduct underlying his January 2017 discharge, including allegations of spousal abuse. The examiner is informed that for VA purposes "[a]n insane person is defined as one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, (1) a more or less prolonged deviation from his normal method of behavior; (2) interferes with the peace of society; or (3) who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. Although insanity need not be causally connected to the misconduct that led to the discharge, it must be concurrent with that misconduct and requires competent medical evidence to establish a diagnosis." After a review of the claims file, to specifically include the Veteran’s lay statements, service treatment records, and private treatment records, the examiner should answer the following: a.) At the time of the misconduct underlying his January 2017 discharge, including allegations of spousal abuse, did the Veteran exhibit a more or less prolonged deviation from his normal method of behavior? b.) At the time of the misconduct underlying his January 2017 discharge, including allegations of spousal abuse, did the Veteran, due to disease, interfere with the peace of society? c.) At the time of the misconduct underlying his January 2017 discharge, including allegations of spousal abuse, was the Veteran, due to disease, so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides? d.) Was the Veteran otherwise insane at the time of the misconduct underlying his January 2017 discharge, including allegations of spousal abuse? A rationale should be provided for the opinion, to include acknowledgement of the Veteran's lay statements, testimony and service treatment record. 3. Obtain supplemental VA opinions (the necessity of additional physical examinations is left to the discretion of the examiner) from the October 2020 VA headache and vertigo examiner, or if unavailable, a competent substitute, to determine - Whether the Veteran’s service-connected headaches result in prostrating attacks, and, if so, their severity; - Whether the Veteran’s service-connected vertigo results in staggering; The examiner is requested to provide an opinion as to whether there is any medical reason to accept or reject the Veteran's testimony and lay contentions that his headaches result in severe prostrating attacks and that his vertigo results in staggering. The examiner is additionally requested to consider the VAMC and private medical evidence of record concerning these conditions, including the opinion of Dr. Kissenberger of the Balance Center of the Pacific, and all prior VA medical opinions. Additionally, all medical opinions are requested to differentiate which symptoms apply to each disability with the greatest detail possible, with an explanation if unable to separate any vertigo/headache symptomatology. 4. A new VA respiratory examination, with an examiner who has reviewed the claims file, is requested to address the Veteran’s service-connected allergic rhinitis. The examiner is requested to provide a full description of the effects, to include all associated limitations, of the Veteran's service-connected rhinitis. A rationale should be provided for the opinion, to include acknowledgement of the Veteran's lay statements and testimony concerning worsening symptoms of flare-ups with swelling. 5. After completing the above actions, and any other development deemed necessary, the claims must be re-adjudicated. All service connection claims must be fully considered on a direct service connection basis. The Board notes that, absent any additional favorable finding afforded to the Veteran, the pertinent dates of service to be utilized in the readjudication of the claims are March 23, 2009 to March 22, 2013 (Honorable) and March 23, 2013 to January 13, 2017 (OTH). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Marcus J. Colicelli 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.