Citation Nr: 21021144 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 20-23 342 DATE: April 9, 2021 ORDER Entitlement to service connection for right ankle complex regional pain syndrome is dismissed. Entitlement to service connection for fibromyalgia is dismissed. REMANDED Entitlement to service connection for hemorrhoids is remanded. Entitlement to service connection for ulcerative colitis is remanded. Entitlement to service connection for left eye corneal abrasion is remanded. Entitlement to service connection for migraines is remanded. Entitlement to service connection for atraumatic brain injury (TBI) is remanded. FINDING OF FACT In an October 2020 Notice of Dismissal, so received prior to the promulgation of a decision in this appeal, the Veteran withdrew her claims for service connection for right ankle complex regional pain syndrome and fibromyalgia. CONCLUSION OF LAW The criteria for dismissal of entitlement to service connection for right ankle complex regional pain syndrome and fibromyalgia have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1986 to January 1988. The Board notes that the Veteran requested a videoconference hearing for her claim of entitlement to service connection for a back condition. See December 2019 VA Form 9. Therefore, this issue will be addressed in a separate legacy Board decision. In addition, the issues of entitlement to an increased rating and earlier effective date for tinnitus and a total disability rating based on individual unemployability (TDIU) are currently pending adjudication under the Appeals Modernization Act (AMA) framework. See October 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). As such, those issues are part of a separate AMA appeal and are not before the Board in this legacy decision. Service Connection 1. Entitlement to service connection for right ankle complex regional pain syndrome 2. Entitlement to service connection for fibromyalgia 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be by the appellant or authorized representative. Id. A written withdrawal must be in writing and include (1) the name of the Veteran or the name of the claimant or appellant if other than the Veteran, (2) the applicable VA file number, and (3) a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issues withdrawn from the appeal. 38 C.F.R. § 19.55(b)(1). In an October 2020 Notice of Dismissal, the Veteran withdrew her appeal for service connection for right ankle complex regional pain syndrome and fibromyalgia. Since the Veteran has withdrawn her appeal of these claims, there remain no allegations of error of fact or law for appellate consideration concerning these claims. Accordingly, the Board does not have jurisdiction to consider these claims and, consequently, they are summarily dismissed. REASONS FOR REMAND At the outset, the Board notes that in December 2020, the Veteran submitted a medical opinion by Dr. M.V.R. in support of her claims for left corneal abrasion, ulcerative colitis, migraines, and TBI. Dr. M.B.V. confirmed the diagnoses and medical history of these claimed conditions and opined that they are more likely than not either directly and/or secondarily service-connected disabilities. However, the Board finds this opinion inadequate as it does not provide a nexus opinion and supporting rationale, which is where most of the probative value of a medical opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). For the reasons stated below, further development is necessary prior to adjudication of the claims. 1. Entitlement to service connection for hemorrhoids is remanded. 2. Entitlement to service connection for ulcerative colitis is remanded. The Veteran has not been afforded a VA examination or medical opinion for her claims of entitlement to service connection for hemorrhoids and ulcerative colitis. VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. In this case, the Veteran has a current diagnosis of hemorrhoids and ulcerative colitis and the Board finds that there is competent evidence that they may be associated with her active duty military service. See e.g., November 2020 Veteran Affidavit; see also January 2021 Appellant’s Board of Veterans Appeals Brief. As such, the Board finds it necessary to remand this issue to obtain a VA examination to determine the etiology of these conditions. McLendon, 20 Vet. App. at 79. 3. Entitlement to service connection for left eye corneal abrasion is remanded. A preliminary review of the record reveals that the Veteran has a current diagnosis of corneal reflux and has sought medical treatment for dry eyes and blood shot eyes, as well as blurred vision. See, e.g., November 2019 Outpatient Medication List. She was afforded a VA examination to determine the etiology of this condition in September 2018; however, the Board finds that a remand for clarification of the September 2018 VA examiner’s findings is warranted. The VA examiner concluded that the Veteran’s current left eye condition was at least as likely not due to her in-service injury, yet provided a negative rationale for her finding, stating that the condition resolved in service. Therefore, the Board finds that supplemental medical comment is needed to reconcile these conflicted findings. 4. Entitlement to service connection for migraines is remanded. The Veteran contends that her migraines are secondary—meaning caused or aggravated by—her service-connected tinnitus and/or her claimed in-service TBI. She was afforded a VA examination in December 2019 to determine the etiology of her migraines; however, the Board finds this examination inadequate for adjudication purposes. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The VA examiner concluded the Veteran’s migraines are less likely than not proximately due to or the result of her service-connected tinnitus because while migraine headaches can increase the symptoms of tinnitus, there is no evidence in current medical literature that confirms a causative relationship between tinnitus and migraines. In addition, because her migraine headaches were not diagnosed until the mid-1990s, it is unlikely that an in-service head injury is the cause of her current symptoms. However, this medical opinion also has failings because the VA examiner did not address whether the Veteran’s service-connected tinnitus and/or claimed TBI, even if not necessarily causing, alternatively is aggravating her migraines. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Two opinions are required for secondary service connection claims: 1) is the claimed disorder “caused by” or “due to” the service-connected disability; and, 2) is the claimed disorder “aggravated by” the service-connected disability (Allen Aggravation). An opinion that something “is not related to” or “is not due to” does not answer the question of aggravation. Allen, 7 Vet. App. at 448; 38 C.F.R. § 3.310(b). Thus, the Board finds the December 2019 VA examination and accompanying opinion inadequate for adjudication purposes. Barr, 21 Vet. App. at 303; Stefl v. Nicholson, 21 Vet. App. 12, 123-125 (2007); 38 C.F.R. § 3.159(c)(4). Supplemental comment thus is needed to address these deficiencies in this examination and opinion. 38 C.F.R. § 4.2. 5. Entitlement to service connection for a TBI is remanded. A January 2019 VA examiner concluded that the Veteran’s current memory and concentration issues are more likely due to her service-connected psychiatric condition, not residuals of a TBI. In support of her conclusion, the VA examiner noted that medical literature on TBI residuals indicate that they should be present only 3-6 months after the head injury. Because the Veteran performed entirely normal on cognitive neuropsychological assessment, no evidence of late effects of head injury could be identified. However, the Veteran averred in her November 2020 affidavit that since being assaulted in 1987, she has experienced difficulty sleeping, auras, migraine headaches. See also January 2021 Appellant’s Board of Veterans Appeals Brief. Therefore, a remand is warranted to obtain an addendum opinion that takes into consideration the Veteran’s lay statements and addresses whether she has residuals of a TBI. The matters are REMANDED for the following action: 1. Contact the Veteran and request authorization to obtain any outstanding records pertinent to her claims, whether from VA and/or private providers. 38 C.F.R. § 3.159(c). Appropriately notify her if unable to obtain identified records that she provides sufficient information concerning. 38 C.F.R. § 3.159(e). 2. After receiving all additional treatment or other relevant records, provide the Veteran VA medical examinations with the appropriate clinicians for opinions concerning the etiology of her claimed hemorrhoids and ulcerative colitis. A copy of this remand and all relevant medical and other records should be made available to the examiner(s). The examiner(s) should review the pertinent evidence, including the Veteran’s lay assertions, and undertake any indicated studies. All testing indicated by the current DBQ format must be addressed. Based on a review of the results of the Veteran’s physical examination, her statements regarding the development and treatment of these conditions, and review of the claims file, the examiner should answer the following questions: (a.) Is it at least as likely as not (a 50 percent probability or greater) the Veteran’s hemorrhoids and/or ulcerative colitis began during her service or are otherwise related to a disease, event, or injury in service? (b.) Alternatively, is it at least as likely as not (a 50 percent probability or greater) the Veteran’s ulcerative colitis was caused OR is aggravated by prescribed medications for her left knee disability? (c.) Regarding the Veteran’s hemorrhoids, it is at least as likely as not (a 50 percent probability or greater) that they were caused OR are aggravated by the Veteran’s ulcerative colitis? If aggravation of either condition is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of hemorrhoids and/or ulcerative colitis by the service-connected disability and/or prescribed medications. Rationale for the opinions provided is essential. The absence of evidence of treatment for hemorrhoids and/or ulcerative colitis in the Veteran’s STRs or even post-service treatment records before initial diagnosis cannot be the sole reason for providing an unfavorable opinion, certainly not in the context of secondary service connection. However, it is permissible to consider this as one of several factors – provided there is explanation of why it is reasonable to expect documentation of specific complaints, etc., in the treatment records. The Veteran is competent to report her symptoms and history, and these reports must be acknowledged and considered in formulating responses. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. It is essential the examiner provide explanatory rationale, whether responding favorably or unfavorably, preferably citing to specific evidence in the file supporting conclusions and/or accepted medical authority. 3. Also obtain a supplemental (addendum) medical opinion regarding the etiology of the Veteran’s left eye corneal abrasion, migraines, and TBI. Aside from being claimed to have started during her service (so direct incurrence in service), the Veteran is additionally claiming that her migraines are secondary to her service-connected tinnitus and/or claimed TBI residuals. So, medical opinions are needed concerning both possibilities (direct and secondary service connection) for this claimed condition. If needed to respond to the questions being asked, schedule him for a VA examination to obtain this needed additional comment concerning the nature and etiology of these claimed disabilities. All relevant medical and other relevant records must be made available to the examiner for review, including a complete copy of this decision and remand. After reviewing the claims file, including this remand, the examiner is asked to answer the following questions: (a.) Is it at least as likely as not that the Veteran’s left eye corneal abrasion began in service or is otherwise related to a disease, event, or injury in service? (b.) Is it at least as likely as not that the Veteran’s TBI began in service or is otherwise related to a disease, event, or injury in service? (c.) Is it at least as likely as not that the Veteran’s migraines began in service or is otherwise related to a disease, event, or injury in service? (d.) Alternatively, is it at least as likely as not (a 50 percent probability or greater) the Veteran’s migraines were caused OR is aggravated by her service-connected tinnitus and/or claimed TBI? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of migraines by the service-connected tinnitus and/or claimed TBI. Rationale for the opinions provided is essential. The absence of evidence of treatment for left eye corneal abrasion, migraines, and a TBI in the Veteran’s service treatment records (STRs) or even post-service treatment records before initial diagnosis cannot be the sole reason for providing an unfavorable opinion, certainly not in the context of secondary service connection. However, it is permissible to consider this as one of several factors – provided there is explanation of why it is reasonable to expect documentation of specific complaints, etc., in the treatment records. The Veteran is competent to report her symptoms and history, and these reports must be acknowledged and considered in formulating responses. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. It is essential the examiner provide explanatory rationale, whether responding favorably or unfavorably, preferably citing to specific evidence in the file supporting conclusions and/or accepted medical authority. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED