Citation Nr: 21023573 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 18-16 776 DATE: April 21, 2021 REMANDED Service connection for a skin disability is remanded. Service connection for hemorrhoids is remanded. Service connection for an undiagnosed illness manifested by fatigue, headaches, muscle pain, joint pain, respiratory symptoms, and sleep disturbances is remanded. REASONS FOR REMAND The Veteran served on active duty in Army from April 1963 to March 1966 and from November 1990 to May 1991, including service in the Persian Gulf War, with additional service in the National Guard.  These matters are on appeal from an October 2015 rating decision. These claims were remanded by the Board in October 2020 to afford the Veteran additional VA medical opinions. The Board will discuss the compliance of the Agency of Original Jurisdiction (AOJ) with its instructions below.  1. Service connection for a skin disability is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in October 2015. The examiner’s opinion that the Veteran’s skin disability was less likely than not related to service was based on his skin disability being commonly seen in the general population and did not address his lay reports regarding onset and continuity of symptoms. This is an inadequate rationale. For this reason, the Board remanded the claim for an additional opinion. The Veteran was afforded an additional VA examination in November 2020. The opinion relied on a lack of a chronic diagnosis until 2005 and a 1996 National Guard treatment record noting that his skin condition had resolved, without addressing the Veteran’s lay reports that his skin condition had been intermittently present since active duty service. This is also an inadequate rationale. For this reason, a remand is again warranted to obtain an additional medical opinion. 1. Service connection for hemorrhoids is remanded. Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disabilities noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111 (2012). If a condition is noted on an entrance examination report, the presumption of soundness never attaches - the only benefits that can be awarded are for aggravation of such condition by application of 38 U.S.C. § 1153 (2012) and 38 C.F.R. § 3.306 (2020). Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). During the Veteran’s February 1963 entrance examination for his first period of active duty service, the examiner noted external hemorrhoid tags. Because his hemorrhoids were noted on entry into service, they are considered a preexisting condition. If a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service incurrence for that disorder, but he may bring a claim for service-connected aggravation of that disorder. Paulson v. Brown, 7 Vet. App. 466, 468 (1995). In that case, the provisions of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 apply. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Service connection is warranted if the preexisting disorder was aggravated by a veteran’s active service. A preexisting injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). The Veteran was afforded a VA examination in October 2015. The Veteran reported that his hemorrhoids did not become problematic for him until after his service in the Persian Gulf War and attributed this worsening to driving for hours on difficult terrain. The examiner noted that the Veteran’s hemorrhoids were preexisting, but the examiner’s finding that his symptoms had not worsened during active duty service was based entirely on silence in treatment records, without addressing the Veteran’s lay report of worsening. This is an inadequate rationale. In addition, despite making findings regarding worsening, the opinion was phrased in terms of whether it is at least as likely as not that the Veteran’s hemorrhoids were incurred in or caused by active duty service, which is not the correct standard for preexisting disabilities. For this reason, the Board remanded the claim for an additional opinion. The Veteran was afforded an additional VA examination in November 2020. The opinion was again phrased in terms of whether it is at least as likely as not that the Veteran’s hemorrhoids were incurred in or caused by active duty service, which is not the correct standard for preexisting disabilities. In addition, the opinion relied on a lack of evidence of chronicity of care, finding the Veteran’s reports of worsening “subjective only.” The opinion also appeared to only consider the Veteran’s first period of active duty in the 1960s, when his reports of aggravation pertain to his second period in the 1990s. For all of these reasons, the opinion’s rationale is inadequate. The Veteran was afforded an additional opinion by a different clinician in January 2021. This opinion was phrased in terms of whether the Veteran’s hemorrhoids clearly and unmistakably existed prior to service and were clearly and unmistakably not aggravated beyond their natural progression by an in-service injury, event, or illness, which is the standard for conditions not noted on the entrance examination. Here, as stated above, the Veteran’s hemorrhoids were noted on his entrance examination report, so a different standard applies. In addition, the opinion relied on the Veteran’s symptoms being “subjective” and his 1966 separation examination being negative for hemorrhoids. The Veteran reports that aggravation took place in his second period of active duty service in the 1990s, not his first in the 1960s. This is therefore also an inadequate rationale. For this reason, a remand is again warranted to obtain an additional medical opinion. 2. Service connection for an undiagnosed illness manifested by fatigue, headaches, muscle pain, joint pain, respiratory symptoms, and sleep disturbances is remanded. The Veteran’s service personnel records reflect that he is a Persian Gulf War veteran, and Congress has created special rules with regard to such veterans establishing entitlement to service connection. Service connection may be granted to a veteran who served in the Southwest Asia theater of operations during the Persian Gulf War who exhibits objective indications of a “qualifying chronic disability.” 38 U.S.C. § 1117 (a)(1) (2012). The Persian Gulf War is defined as the period from August 2, 1990 to a future date prescribed by Presidential proclamation or by law. 38 U.S.C. § 101(33) (2012). A qualifying chronic disability is currently defined as either an undiagnosed illness or a medically unexplained chronic multi symptom illness defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders (excluding structural gastrointestinal diseases). 38 C.F.R. § 3.317 (a)(2) (2020). The symptoms must manifest to a degree of 10 percent or more during the presumptive periods prescribed by the Secretary or by December 31, 2021. 38 C.F.R. § 3.317 (a)(1)(i). By history, physical examination and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1)(ii). Objective indications of chronic disability include both “signs” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(2)(ii)(3). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. 38 C.F.R. § 3.317 (a)(2)(ii)(4). The signs and symptoms which may be manifestations of undiagnosed illness or a chronic multi symptom illness include, but are not limited to, fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, and abnormal weight loss. 38 U.S.C. § 1117 (g). In his October 2014 claim, the Veteran reported his symptoms as fatigue, headaches, muscle pain, joint pain, respiratory symptoms, sleep disturbances, cardiovascular symptoms, gastrointestinal symptoms, and skin conditions. (The Veteran’s skin disability is the subject of a separate claim, as noted above.) The Veteran was afforded a VA examination in October 2015. The examiner’s opinion that the Veteran’s did not have evidence of a medically unexplained multisymptom illness or undiagnosed illness was based on findings that the Veteran’s “claimed disability pattern is composed of (4) diseases with clear and specific etiologies and diagnosis” and that the timing of the Veteran’s reports of his symptoms were “not associated with his time in the military or more specifically with his GW service.” The Veteran has reported more than four categories of symptoms and it is not clear from the examiner’s opinion which four diagnoses were found to account for all reported symptoms or how they would do so. In addition, as stated above, service connection under 38 C.F.R. § 3.317 requires manifestation of symptoms by December 31, 2021, not necessarily during active duty service. The examiner’s opinion also did not address the Veteran’s lay reports of onset during active duty service and continuity thereafter. For these reasons, the examiner’s rationale is inadequate and the Board remanded the claim to obtain an additional medical opinion. The Veteran was afforded an additional VA examination in November 2020. The opinion found no evidence of persistent/recurrent symptoms but did not address the Veteran’s reports of such symptoms other than to dismiss those for which there was a diagnosis as “subjective only and not found as diagnosis in Service Record or on objective exam today.” Even if this rationale were adequate with regard to disabilities present at the moment of the examination, as the Board stated in its remand instructions, the question is what disabilities are present during a period on appeal that began in 2014. In addition, this rationale does not address any reported symptoms for which there has been no diagnosis. This is therefore also an inadequate rationale. For this reason, a remand is again warranted to obtain an additional medical opinion. The matters are REMANDED for the following action: 1. Arrange for an opinion by an appropriate clinician who has not previously examined the Veteran for the purpose of determining the etiology of the Veteran’s skin disability. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician must provide an opinion as to whether it is as likely as not (a probability of 50 percent or greater) that any current skin disability began in service, was caused by service, or is otherwise related to the Veteran’s active service, including as a manifestation of an undiagnosed illness or medically unexplained chronic multi symptom illness. The clinician is advised that a disability is considered “current” for the purposes of this appeal if present at any point after VA received the Veteran’s claim on October 20, 2014. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. A February 1993 National Guard treatment record in which the Veteran reported a recurrent “acne rash” on his legs since his service in the Persian Gulf. b. National Guard treatment records from January 1994, June 1994, May 1994, and December 1995 noting continued treatment for chronic hand dermatitis and rosacea. c. A May 1996 National Guard examination report noting that the Veteran’s skin rash had resolved. d. A June 2010 private treatment record noting that the Veteran’s groin rash had “not responded to long-term use of over the counter antifungals.” e. The Veteran’s reports during the October 2015 and November 2020 VA examinations that his groin and scalp rash had been intermittently present since his service in the Persian Gulf and was not responsive to antifungals. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Arrange for an opinion by an appropriate clinician who has not previously examined the Veteran for the purpose of determining the etiology of the Veteran’s hemorrhoids. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician is advised that the Veteran’s hemorrhoids were noted on his February 1963 entrance examination report. The clinician must provide opinions as to the following: a. whether the Veteran’s hemorrhoids increased in severity during either of the Veteran’s periods of active duty service (April 1963 to March 1966 and November 1990 to May 1991) and, if so, b. whether the increase in severity was clearly and unmistakably due to the natural progress of the disease. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the Veteran’s report during the October 2015 VA examination that his hemorrhoids worsened during his service in the Persian Gulf War as a result of long drives over difficult terrain. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Arrange for an opinion by an appropriate clinician who has not previously examined the Veteran for the purpose of determining the etiology of the Veteran’s fatigue, headaches, muscle pain, joint pain, respiratory symptoms, sleep disturbances, cardiovascular symptoms, and gastrointestinal symptoms. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician must provide an opinion as to whether it is as likely as not (a probability of 50 percent or greater) that any current disability manifested by fatigue, headaches, muscle pain, joint pain, respiratory symptoms, sleep disturbances, cardiovascular symptoms, and gastrointestinal symptoms began in service, was caused by service, or is otherwise related to the Veteran’s active service, including as a manifestation of an undiagnosed illness or medically unexplained chronic multi symptom illness. The clinician is advised that a disability is considered “current” for the purposes of this appeal if present at any point after VA received the Veteran’s claim on October 20, 2014. The clinician is further advised that an opinion that the Veteran’s symptoms are attributable to known diagnoses should explain which symptoms are attributable to which diagnoses. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. A February 1993 National Guard treatment record in which the Veteran reported sore shoulders, muscle cramps, hair loss, headaches, nasal congestion, night sweats, and recurrent blurred vision since his service in the Persian Gulf. b. The Veteran’s reports during the October 2015 VA examination regarding the onset and continuity of his symptoms. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 4. Ensure that the directives specified in this remand have been implemented.  If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). (Continued on the next page)   5. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.