Citation Nr: 21026195 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 18-11 023 DATE: April 30, 2021 REMANDED Entitlement to service connection for a bilateral eye disability, claimed as the result of chemical exposure, is remanded. Entitlement to service connection for a respiratory disability, to include bronchitis, claimed as the result of chemical exposure, is remanded. Entitlement to service connection for Graves’ disease, claimed as the result of chemical exposure, is remanded. Entitlement to service connection for leukoplakia, claimed as the result of chemical exposure, is remanded. Entitlement to service connection for Raynaud’s disease, claimed as the result of chemical exposure, is remanded. Entitlement to service connection for a skin disability, claimed as the result of chemical exposure, is remanded. Entitlement to service connection for a nail disability to include onychomycosis, claimed as the result of chemical exposure, is remanded. Entitlement to service connection for a laryngeal disability, to include laryngitis, is remanded. Entitlement to service connection for chronic fatigue syndrome, claimed as the result of chemical exposure, is remanded. Entitlement to an initial rating in excess of 30 percent for migraines headaches is remanded. REASONS FOR REMAND The Veteran had active service from July 1973 to July 1976. In November 2015, the Board of Veterans’ Appeals (Board) denied service connection for a headache disability, a psychiatric disability, and sleep apnea. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In March 2017, the United States Court of Appeals for Veterans Claims vacated the November 2015 Board decision and remanded the issues of entitlement to service connection for a headache disability, a psychiatric disability, and sleep apnea to the Board for further action. In September 2017, the Board remanded the issues of entitlement to service connection for a headache disability, a psychiatric disability, and sleep apnea to the Agency of Original Jurisdiction for additional development of the record. In March 2018, the Agency of Original Jurisdiction established service connection for obstructive sleep apnea. In June 2018, the Board granted service connection for a headache disability and remanded the issue of service connection for a psychiatric disability to the Agency of Original Jurisdiction for additional development of the record. In December 2018, the Agency of Original Jurisdiction established service connection for migraine headaches and assigned a 30 percent rating for that disability, effective June 12, 2012. In June 2019, the Board denied service connection for a bilateral eye disability, a respiratory disability to include bronchitis, Graves’ disease, leukoplakia, Raynaud’s disease, a skin disability, and a nail disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In April 2020, the Agency of Original Jurisdiction established service connection for bipolar disorder; granted a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU), effective June 12. 2012, and established basic eligibility to Dependents’ Educational Assistance under 38 U.S.C. Chapter 35, effective June 12. 2012. In November 2020, the United States Court of Appeals for Veterans Claims granted the Parties’ Joint Motion for Partial Remand; vacated those portions of the June 2019 Board decision which denied service connection for a bilateral eye disability, a respiratory disability to include bronchitis, Graves’ disease, leukoplakia, Raynaud’s disease, a skin disability, and a nail disability; and remanded the claims to the Board for additional action consistent with the Joint Motion for Partial Remand. 1. Entitlement to service connection for a bilateral eye disability, a respiratory disability to include bronchitis, Graves’ disease, leukoplakia, Raynaud’s disease, a skin disability, and a nail disability to include onychomycosis, claimed as the result of chemical exposure, is remanded. The Parties’ Joint Motion for Partial Remand directs that the Veteran should be provided further medical evaluation to address the relationship between (1) the Veteran’s conceded exposure to polychlorinated biphenyls (PCBs) while stationed at Fort McClellan, Alabama, and any bilateral eye disability, respiratory disability, Graves’ disease, leukoplakia, Raynaud’s disease, skin disability, and nail disability and (2) the service-connected obstructive sleep apnea and any bilateral eye disability and respiratory disability. The Board has no discretion and must remand the appeal for compliance with the United States Court of Appeals for Veterans Claims’ November 2020 Order granting the Joint Motion for Partial Remand. Stegall v. West, 11 Vet. App. 268 (1998); Forcier v. Nicholson, 19 Vet. App. 414 (2006) (duty to ensure compliance with United States Court of Appeals for Veterans Claims order extends to the terms of agreement struck by Parties that forms basis of Joint Motion for Remand). 2. Entitlement to service connection for a laryngeal disability, to include laryngitis, is remanded. The Veteran asserts that service connection for a laryngeal disability is warranted secondary to the service connected sinus disability. Service connection may be established for disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Service connection shall be established on a secondary basis where it is demonstrated that a service-connected disability has aggravated a nonservice-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Service connection has been established for sinusitis, obstructive sleep apnea, bipolar disorder, migraine headaches, irritable bowel syndrome, lumbar spine degenerative arthritis, septal deviation and rhinoplasty residuals, and hypertension. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In October 2020, the Agency of Original Jurisdiction established service connection for sinusitis. The Veteran has not been provided a VA examination which addresses any relationship between any laryngeal disability and service-connected sinusitis. 3. Entitlement to service connection for chronic fatigue syndrome, claimed as the result of chemical exposure, is remanded. The report of a January 2020 chronic fatigue syndrome examination conducted for VA states that the Veteran was diagnosed with chronic fatigue syndrome. The report of a March 2020 chronic fatigue syndrome examination conducted for VA states that the “claimant does not have a diagnosis of chronic fatigue syndrome” and “no opinion is rendered because there is no pathology.” Because of the apparent conflict in the record as to whether the Veteran has chronic fatigue syndrome, the Board finds that further VA evaluation is necessary. 4. Entitlement to an initial rating in excess of 30 percent for migraine headaches is remanded. The Veteran contends that an initial rating in excess of 30 percent for migraine headaches is warranted. In April 2021, additional relevant VA clinical records pertaining to treatment of the service-connected migraine headaches were incorporated into the record. The Veteran has not waived Agency of Jurisdiction review of the additional VA records. The Board may not consider additional evidence without prior Agency of Original Jurisdiction review in the absence of a waiver of that review by the Veteran. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated any eye, respiratory, Graves’ disease, leukoplakia, Raynaud’s disease, skin, nail, laryngeal, and chronic fatigue syndrome disabilities and service-connected migraine headaches. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA clinical documentation not already of record, including that dated after April 5, 2021. 3. Schedule the Veteran for a VA eye examination conducted by a physician who has not previously examined the Veteran, to assist in determining the nature and etiology of any bilateral eye disability and any relationship to active service and the service-connected disabilities. The examiner must review the record, including the medical articles submitted by the Veteran in support of the claim, and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all eye disabilities found or shown by the record. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified eye disability had its onset during active service or is related to any incident of service, including the Veteran’s conceded exposure to PCBs at Fort McClellan, Alabama. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified eye disability is due to or the result of obstructive sleep apnea and the other service-connected disabilities. The examiner must specifically discuss the medical articles submitted by the Veteran in support of the claim. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified eye disability has been aggravated (increased in severity beyond the natural progress of the disorder) by obstructive sleep apnea and the other service-connected disabilities. The examiner must specifically discuss the medical articles submitted by the Veteran in support of the claim. 4. Schedule the Veteran for a VA respiratory examination conducted by a physician who has not previously examined the Veteran, to assist in determining the nature and etiology of any respiratory disability, to include bronchitis, and any relationship to active service and the service-connected disabilities. The examiner must review the record, including the medical articles submitted by the Veteran in support of her claim, and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all respiratory disabilities found or shown by the record, to specifically include any bronchitis. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified respiratory disability had its onset during active service or is related to any incident of service, including the Veteran’s conceded exposure to PCBs at Fort McClellan, Alabama. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified respiratory disability is due to or the result of obstructive sleep apnea and the other service-connected disabilities. The examiner must specifically discuss the medical articles submitted by the Veteran in support of the claim. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified respiratory disability has been aggravated (increased in severity beyond the natural progress of the disorder) by obstructive sleep apnea and the other service-connected disabilities. The examiner must specifically discuss the medical articles submitted by the Veteran in support of the claim. 5. Schedule the Veteran for a VA examination conducted by the appropriate physician who has not previously examined the Veteran, to assist in determining the nature and etiology of any Graves’ disease and any relationship to active service and the service-connected disabilities. The examiner must review the record, including the medical articles submitted by the Veteran in support of the claim, and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Specifically state whether Graves’ disease is found or shown by the record. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified Graves’ disease had its onset during active service or is related to any incident of service, including the Veteran’s conceded exposure to PCBs at Fort McClellan, Alabama. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified Graves’ disease is due to or the result of the service-connected disabilities. The examiner must specifically discuss the medical articles submitted by the Veteran in support of the claim. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified Graves’ disease has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities. The examiner must specifically discuss the medical articles submitted by the Veteran in support of the claim. 6. Schedule the Veteran for a VA examination conducted by the appropriate physician who has not previously examined the Veteran, to assist in determining the nature and etiology of any leukoplakia and any relationship to active service and the service-connected disabilities. The examiner must review the record, including the medical articles submitted by the Veteran in support of the claim, and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Specifically state whether leukoplakia is found or shown by the record. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified leukoplakia had its onset during active service or is related to any incident of service, including the Veteran’s conceded exposure to PCBs at Fort McClellan, Alabama. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified leukoplakia is due to or the result of the service-connected disabilities. The examiner must specifically discuss the medical articles submitted by the Veteran in support of the claim. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified leukoplakia has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities. The examiner must specifically discuss the medical articles submitted by the Veteran in support of the claim. 7. Schedule the Veteran for a VA examination conducted by the appropriate physician who has not previously examined the Veteran, to assist in determining the nature and etiology of any Raynaud’s disease and any relationship to active service and the service connected disabilities. The examiner must review the record, including the medical articles submitted by the Veteran in support of the claim, and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Specifically state whether Raynaud’s disease is found or shown by the record. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified Raynaud’s disease had its onset during active service or is related to any incident of service, including the Veteran’s conceded exposure to PCBs at Fort McClellan, Alabama. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified Raynaud’s disease is due to or the result of the service-connected disabilities. The examiner must specifically discuss the medical articles submitted by the Veteran in support of the claim. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified Raynaud’s disease has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities. The examiner must specifically discuss the medical articles submitted by the Veteran in support of the claim. 8. Schedule the Veteran for a VA examination conducted by an appropriate physician who has not previously examined the Veteran, to assist in determining the nature and etiology of any skin and nail disabilities and any relationship to active service and the service-connected disabilities. The examiner must review the record, including the medical articles submitted by the Veteran in support of her claim, and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all skin and nail disabilities found or shown by the record. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified skin and nail disabilities had their onset during active service or are related to any incident of service, including the Veteran’s conceded exposure to PCBs at Fort McClellan, Alabama. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified skin and nail disabilities are due to or the service-connected disabilities. The examiner must specifically discuss the medical articles submitted by the Veteran in support of the claim. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified skin and nail disabilities have been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities. The examiner must specifically discuss the medical articles submitted by the Veteran in support of the claim. 9. Schedule the Veteran for a VA examination conducted by an appropriate physician who has not previously examined the Veteran, to assist in determining the nature and etiology of any laryngeal disability and any relationship to active service and the service-connected disabilities. The examiner must review the record, including the medical articles submitted by the Veteran in support of her claim, and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all laryngeal disabilities found or shown by the record. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified laryngeal disability had its onset during active service or is related to any incident of service, including the Veteran’s conceded exposure to PCBs at Fort McClellan, Alabama. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified laryngeal disability is due to or the result of sinusitis and the other service-connected disabilities. The examiner must specifically discuss the medical articles submitted by the Veteran in support of the claim. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified laryngeal disability has been aggravated (increased in severity beyond the natural progress of the disorder) by sinusitis and the other service-connected disabilities. The examiner must specifically discuss the medical articles submitted by the Veteran in support of the claim. 10. Schedule the Veteran for a VA chronic fatigue syndrome examination conducted by a physician who has not previously examined the Veteran, to assist in determining the nature and etiology of any chronic fatigue syndrome and any relationship to active service and the service-connected disabilities. The examiner must review the record, including the medical articles submitted by the Veteran in support of her claim, and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all chronic fatigue disabilities found or shown by the record. If chronic fatigue syndrome is not identified, the examiner should specifically state that fact. The examiner should discuss the criteria for a diagnosis of chronic fatigue syndrome and state whether or not they are met. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified chronic fatigue disability had its onset during active service or is related to any incident of service, including the Veteran’s conceded exposure to PCBs at Fort McClellan, Alabama. Reconcile the opinion with the other opinions of record. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified chronic fatigue disability is due to or the service-connected disabilities. The examiner must specifically discuss the medical articles submitted by the Veteran in support of the claim. Reconcile the opinion with the other opinions of record. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified eye disability has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities. The examiner must specifically discuss the medical articles submitted by the Veteran in support of the claim. Reconcile the opinion with the other opinions of record. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Hutcheson, 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.