Citation Nr: 21023982 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 10-05 248 DATE: April 21, 2021 REMANDED Entitlement to service connection for a skin disorder, other than fungal infection of the left foot, to include as due to an undiagnosed illness is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic disorder (PTSD), is remanded. Entitlement to service connection for low back disorder is remanded. Entitlement to service connection for bilateral foot disorder, other than degenerative osteoarthritis of left distal and proximal interphalangeal joints, is remanded. Entitlement to service connection for residuals of a left wrist fracture is remanded. Entitlement to service connection for traumatic arthritis to include as due to an undiagnosed illness is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to special monthly compensation (SMC) for aid and attendance and/or housebound is remanded. REASONS FOR REMAND The appellant served on active duty in the United States Army from February 1976 to August 1992 and September 2004 to September 2005, to include service in the Southwest Asia Theater Operations during the Persian Gulf War. He also had additional Reserve service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appellant was scheduled for a Board hearing, but he withdrew his hearing request in an April 2016 statement. 38 C.F.R. § 20.704(e). The Board remanded this matter in December 2016 and September 2019 for additional development. In March 2021, the appellant made a claim of clear and unmistakable error (CUE) in the August 1992 rating decision denying service connection for back pain. The Board is unable to take jurisdiction of the appellant’s CUE claim. The Board is an appellate body with no authority to take original jurisdiction over an issue not adjudicated by the RO, and cannot review in the first instance the request for revision of a RO decision based on CUE. 1. Entitlement to service connection for skin disorder Pursuant to the September 2019 remand directives, the Agency of Original Jurisdiction (AOJ) was directed to obtain an addendum medical opinion, as a previous June 2019 examination found no diagnosis of a skin disorder, other than left great toe onychomycosis, despite previous private treatment records noting diagnoses of facial dermatitis and eczema in November 2015 and rash on the penile shaft, which was noted to be atopic or contact dermatitis, in January 2011. In January 2020, the AOJ obtained an addendum opinion. The examiner again diagnosed left great toe onychomycosis, asymptomatic and found that the appellant’s contact dermatitis of glans penis had resolved with residual hypopigmentation. The examiner indicated that it is less likely as not that the appellant’s hypopigmentation is caused by or a result of March 1980, November 1982 and May 1984 complaints of penile lesions and body rashes and his second period of service separation Medical Board evaluation showing dry skin. However, the rationale provided by the examiner was conclusory and was only supported by a report that the etiology of the hypopigmentation was contact dermatitis diagnosed in 2011. Moreover, the examiner did not discuss the November 2015 diagnosis of facial dermatis and eczema. The Board therefore finds that a new opinion is warranted on remand that addresses whether the appellant’s diagnosed skin disorder is the result of service, to include environmental exposures during service in Southwest Asia during the Persian Gulf War. See Barr v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 2. Entitlement to service connection for psychiatric disorder The AOJ obtained an addendum opinion to determine the etiology of the appellant’s acquired psychiatric disorder in January 2020. The Board finds the VA medical opinion to be inadequate. The Board previously conceded the Veteran’s fear of hostile military or terrorist activities during the appellant’s military service in Southwest Asia during the Persian Gulf War. See September 2019 Board Remand. The January 2020 examiner determined that the appellant’s major depressive disorder is less likely as not related to service, including his conceded fear of hostile military or terrorist activities during his military service in Southwest Asia theater of operations, his March 2005 report of nervous trouble, chronic sleep impairment, and depression or excessive worry, his August 2005 complaint of sleep disturbance, treated with Ambien, and his September 2005 report of feeling down, depressed, or hopeless. The examiner supported his opinion based on the September 2005 post-deployment examination being negative for any complaints or reports of nightmares, avoidance, watchfulness, startle, numbness or detachment. The examiner noted the appellant also “saw no wounded or dead, did not discharge his weapon, and did not feel in danger of being killed.” As previously mentioned, fear of hostile military or terrorist activities was conceded due to the appellant’s verified service in Southwest Asia. Furthermore, the examiner failed to take the appellant’s competent lay statements of symptomatology and history into consideration when providing the medical opinion. As such, remand is required to obtain a new addendum opinion. In support of this claim for service connection, the appellant submitted a letter dated February 16, 2021; however, the Board does not find that this nexus opinion is sufficient to resolve the issue on appeal. The author indicates review of the record; however, factually inaccurate assertions indicate a lack of careful review of the record. The author states that “the Board erred in determining that the medical examinations (e.g. June 25, 2015 Initial PTSD DBQ and January 22, 2020 VA Addendum DBQ Medical Opinions were adequate” and that “the Board provided inadequate statement of reasons or bases to support its denial.” The Board had not determined the adequacy of the 2020 addendum, and, as noted above, the Board has found the January 2020 addendum to be inadequate. The Board has also not issued a decision with regard to this issue. As the opinion does not reflect familiarity with the entire record, a remand for an addendum opinion is necessary. 3. Entitlement to service connection for low back disability With regard to the appellant’s lumbar spondylosis with secondary spinal stenosis, the examiner found it is less likely as not caused by or a result of service or incurred within a year of separation from service. The examiner rationalized that the appellant’s service treatment records (STRs) during the first period of active duty are silent for lumbar spondylosis, which was first diagnosed on x-ray in 2004 prior to entry into second period of active duty. However, the examiner did not discuss whether the condition was aggravated by the second period of service. Thus, an addendum opinion is required on remand. 4. Entitlement to service connection for bilateral foot disorder A Supplemental Statement of the Case (SSOC) was issued in July 2019. The appellant was afforded a contracted foot conditions examination in July 2020. Such was not of record at the time of the July 2019 SSOC. As this evidence was not submitted but rather was created by VA, a remand is warranted for initial AOJ review of this evidence and, if the claim remains denied, issuance of a SSOC to the appellant. 5. Entitlement to service connection for residuals of a left wrist fracture 6. Entitlement to service connection for traumatic arthritis Pursuant to the September 2019 Board directives, the appellant was scheduled for a VA Gulf War examination to determine the nature and etiology of his claimed joint pain, to include his ankles, wrists, shoulders, and neck. The examiner, in pertinent part, diagnosed bilateral ankle strain, left triquetrum fracture and bilateral wrist strain, bilateral shoulder strain, cervical spinal stenosis and cervical radiculopathy, hand strain, back strain, subjective bilateral foot pain, bilateral knee strain, bilateral hip strain and bilateral elbow strain. The examiner found that these conditions are diagnosable chronic multi-symptom illnesses with a partially explained etiology. The examiner also opined that these conditions are less likely than not related to a specific exposure event experienced by the appellant during service in Southwest Asia. The examiner provided the following rationale for each condition: Wrist Rationale: During the Veteran’s time in service there are no records indicating a wrist fracture. Studies show triquetrum fractures occur due to any kind of traumatic injury or forceful impact and neither was noted in his medical records while in service. Fractures of the wrist can cause direct injury to the cartilage or a delayed wearing of the cartilage and result in joint pain months to years later. Ankle Rationale: Veteran medical records show ankle x-rays on 7/20/07 that showed no abnormalities and again in 2/3/2011 resulted in a negative x-ray of the ankles. The veteran pain may be a result of ankle sprain. An ankle sprain may result in damage to the surface of the ankle joint or to structures around the ankle joint and could lead to the development of persistent pain and swelling in the ankle. Shoulder Rationale: The veteran has records of shoulder pain along with neck pain. No clear diagnosis for shoulder pain is documented in medical records during service or his time in the Gulf War. Shoulder strains can result due to overuse, or improper use of the muscle and cause pain with movement. Neck Rationale: Veteran had complaints of neck pain in between the times he served and was later diagnosed with cervical radiculopathy and spinal fusion by Dr. Wiles 5/16/2018. He had no noted injury while in service but had notes document 3/31/2005 that vet carried heavy gear during service, and this can contribute to neck pain. Back Rationale: The veteran reported hurting his back during basic training and having pain ever since. This complaint was not due to the Gulf War but rather an injury. Hand strain, knee strain, hip strain, elbow strain: Regarding the bilateral hand strain, knee strain, hip strain and elbow strain, veteran has several notes in his medical records for complaints of several joint pains with no clear etiology. He was seen by rheumatology 10/29/04 and was negative for fibromyalgia. He was also seen by Neurologist 11/07/02 and was negative for amyotrophic lateral sclerosis. There has been extensive workups done over the years since his time serving. The joint pains and compensating has caused stress and strain on several joints as listed. With regard to wrist, ankle, shoulder and neck disorders, the Board finds these opinions inadequate, as the examiner based the opinions provided on a lack of medical evidence showing no related symptoms and diagnoses in the STRs, and the examiner failed to consider the lay statements of record. The examiner also failed to address whether the appellant’s neck disability was aggravated during his second tour of duty. The examiner’s opinions with regard to back, hand, knee, hip and elbow disorders are wholly conclusory, with no supporting rationale. 7. Entitlement to a TDIU 8. Entitlement to a SMC for aid and attendance and/or housebound As a decision on the service connection claims could significantly impact a decision on the TDIU and SMC claims, these issues are inextricably intertwined; thus, consideration of these matters must be deferred pending resolution of the service claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain a medical opinion regarding the etiology of the appellant’s skin disorder. No additional examination of the appellant is necessary, unless the reviewing examiner deems otherwise. After a review of the claims file, the examiner is requested to address the following: (a) Identify the appellant’s skin disorder diagnosed (other than fungal infection of the left foot), including but not limited to facial dermatitis and eczema, atopic or contact dermatitis of the penile shaft. See January 2011 and November 2015 private treatment records. (b) For each disorder (other than fungal infection, left foot), please opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder was incurred in, oris otherwise related to the appellant’s active service, including environmental exposures during service in Southwest Asia during the Persian Gulf War, his March 1980, November 1982, and May 1984 complaint of penile lesions and body rashes, his second period of service separation Medical Board evaluation showing dry skin? The examiner should address the appellant’s consistent report of intermittent rashes during and since service. A complete rationale for all opinions must be provided. 2. Schedule the Veteran for a VA examination to determine the etiology of his acquired psychiatric disorder. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were reviewed. The examiner should address the following: Is it at least as likely as not (50 percent probability or more) that the appellant’s diagnosed major depressive disorder is related to service, including his conceded fear of hostile military or terrorist activities during his military service in Southwest Asia theater of operations, his March 2005 report of nervous trouble, chronic sleep impairment, and depression or excessive worry, his August 2005 complaint of sleep disturbance, treated with Ambien, and his September 2005 report of feeling down, depressed, or hopeless? The examiner is advised that the appellant is competent to report his symptoms and history, and such reports should be specifically acknowledged and considered in formulating opinions. If the examiner rejects the appellant’s reports of symptomatology, a reason for doing so should be provided. A complete rationale for all opinions must be provided. 3. Undertake appropriate efforts to obtain a medical opinion to address the etiology of the appellant’s back disorder. Following a review of the claims file, the examiner is requested to address the following: (a) For each back disorder diagnosed other than spinal stenosis, please opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorder had its onset in service or is otherwise related to service, to include as a result of the appellant’s documented back pain therein. (b) For any documented arthritis is it at least as likely as not (a 50 percent or greater probability) that this condition manifested within a year of service discharge? In addressing these questions, the examiner must address the appellant’s report of continuous back pain since his basic training injury and the numerous documented in-service complaints and treatment with physical therapy. The examiner is advised that the appellant is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the appellant’s reports, the examiner must provide a reason for doing so. A complete rationale for all opinions must be provided. 4. Undertake appropriate efforts to obtain a medical opinion to determine the etiology of his claimed joint pain, to include his ankles, wrists, shoulders, neck, back, hand, knee, hip and elbow disorders. Following a review of the claims file, the examiner is requested to address the following questions: (a) Please state whether the symptoms of each claimed condition (ankles, wrists, shoulders, and neck) are attributable to a known clinical diagnosis. If so, please opine whether it is at least as likely as not (50 percent probability or greater) that any diagnosed disorder had its onset directly during the Veteran’s service or is otherwise causally related to any event or circumstance of his service? (b) Otherwise, please opine if the Veteran’s disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, or (2) a diagnosable chronic multisymptom illness with a partially explained etiology? The examiner is asked to address the Veteran’s complaint of ankle pain in December 1979, right shoulder pain for one year assessed as questionable muscle strain versus ligament strain in August 1982, and the March 1992 report of swollen or painful joints on awakening in the morning of five years duration. The examiner shoulder should also include consideration of the August 1995 VA examination, where the Veteran complained of multiple achy joints, with swelling of his left hand and the March 2005 separation evaluation findings of reduced range of motion of the shoulder and cervical spine. A complete rationale for all opinions must be provided. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.N., Associate 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.