Citation Nr: 21029399 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-02 065 DATE: May 13, 2021 REMANDED The issue of entitlement to service connection for a skin condition, to include tinea corporis, is remanded. The issue of entitlement to a higher initial rating for migraine headaches, evaluated as noncompensably disabling from to September 1, 2011, to December 15, 2015, and as 30 percent disabling thereafter, is remanded The issue of entitlement to a higher initial rating for reflex sympathetic dystrophy (RSD), left external popliteal and musculocutaneous nerves (left lower extremity), evaluated as 10 percent disabling from April 11, 2011, to January 16, 2020, and as 20 percent disabling thereafter, is remanded. The issue of entitlement to a higher rating for service-connected RSD, right external popliteal and musculocutaneous nerves (right lower extremity), evaluated as 10 percent disabling prior to January 16, 2020, and as 20 percent disabling from that date, save for the periods in which a temporary total rating is in place, is remanded. The issue of entitlement to special monthly compensation (SMC) based on loss of use of a creative organ is remanded. The issue of entitlement to SMC based on the need for aid and attendance and/or on account of being housebound is remanded. The issue of entitlement to an effective date prior to September 1, 2011, for the assignment of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The issue of entitlement to an effective date prior to September 1, 2011, for the establishment of basic eligibility for Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2000 to December 2003. This appeal to the Board of Veterans' Appeals (Board) arose from September 2012, January 2013, February 2014, and March 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) In the September 2012 rating decision, the RO, inter alia, granted service connection for RSD of the left leg and assigned a noncompensable evaluation (zero percent), effective April 11, 2011. The RO also denied service connection for a skin disability, to include tinea corporis. The Veteran disagreed with the denial of service connection and assignment of a noncompensable evaluation and subsequently perfected appeals of those issues to the Board. In the January 2013 rating decision, the RO, inter alia, assigned a temporary total rating for the Veteran's service-connected right leg RSD for the period from September 19, 2011 to December 1, 2011; a rating of 10 percent was assigned thereafter. The Veteran disagreed with the continued 10 percent evaluation, and subsequently perfected an appeal of that issue to the Board. (Parenthetically, the Board notes that, with respect to the Veteran's RSD of the right lower extremity, the Board previously characterized the claim as entitlement to an initial rating greater than 10 percent for that disability, save for periods in which the Veteran was assigned a temporary 100 percent evaluation. However, the Veteran was initially awarded service connection for RSD of the right lower extremity via rating decision dated in January 2010. The Veteran did not disagree with that decision, to include the initial 10 percent rating assigned. Rather, in September 2011, the Veteran sought a temporary total rating, the increased rating matter currently before the Board stems from her disagreement with the 10 percent rating assigned upon expiration of the temporary total rating.) In the March 2016 rating decision, the RO, inter alia, granted service for migraine headaches, evaluated as noncompensably disabling, effective from September 1, 2011, to December 9, 2015, and as 30 percent disabling thereafter. The RO also granted entitlement to a TDIU, effective September 1, 2011; basic eligibility for DEA benefits was also established from that date. The Veteran disagreed with rating assigned for her migraine headaches, as well as the effective dates assigned in connection with award of a TDIU and establishment of basic eligibility for DEA benefits, and subsequently perfected an appeal of those issues to the Board. Regarding the issue of entitlement to SMC based on the need for aid and attendance and/or on account of being housebound, in a September 2016 action, the Board determined that that issue had been raised by the Veteran in the context of the increased-rating matters then on appeal. The Board thus took jurisdiction over that matter. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (observing that entitlement to SMC is an "inferred issue" in the context of an increased rating claim that must be considered when the record indicates that it may be available, even if the claimant does not place eligibility for this ancillary benefit at issue). The procedural history of this case is a lengthy one that involves multiple actions by the Board and an appeal to and remand from the United Stated Court of Appeals for Veterans Claims (Court). As the procedural history has been detailed at length in the prior actions in the appeal, it will only be repeated herein as needed to explain the state of the matters currently before the Board. In a January 2019 decision, the Board, inter alia, denied service connection a skin disability, denied higher ratings for the Veteran's RSD of the right and left lower extremities and for migraine headaches, denied effective dates earlier than September 1, 2011, for the award of a TDIU and for the establishment of basic eligibility for DEA benefits, and denied SMC based on the need for aid and attendance and/or on account of being housebound. The Board also noted that the Veteran had raised the issue of entitlement to SMC for loss of use of a creative organ in an August 2017 VA Form 9. The Board determined that it did not have jurisdiction over this matter, as it had not yet been adjudicated by the RO, and thus referred it to the RO. In a separate action dated in April 2019, the Board remanded the issues of entitlement to earlier effective dates for the award of TDIU and the establishment of basic eligibility for DEA benefits. After issuance of the January 2019 Board decision, the Veteran filed an appeal to the Court and in June 2019, the Court granted a Joint Motion for Partial Remand (Joint Motion) filed by the Veteran's attorney and VA's General Counsel. In order to comply with the terms of the parties' Joint Motion, the Board, in October 2019, remanded, for further development, the issues of entitlement to service connection for a skin disability and entitlement to increased ratings for RSD of the bilateral lower extremities and for migraine headaches. The Board also remanded the issue of entitlement to SMC for loss of use of a creative organ for adjudication by the RO in the first instance, noting that the parties, in their Joint Motion, had agreed that the Board erred in referring, rather than remanding, that matter to the RO. The issue of entitlement to SMC based on the need for aid and attendance and/or on account of being housebound was also remanded as it was found to be inextricably intertwined with the other remanded matters. Upon completion of the requested development, the RO issued a rating decision in April 2020 in which it increased the ratings assigned for the Veteran's RSD of the right and left lower extremities to 20 percent, each effective January 16, 2020. The RO also granted entitlement to SMC on account of being housebound for the period from September 19, 2011, to November 30, 2011. That same month, the RO issued a supplemental statement of the case (SSOC) in which it continued to deny ratings greater than 10 percent for RSD of the right and left lower extremities prior to January 16, 2020, and ratings greater than 20 percent from that date, and a higher initial rating for migraine headaches; service connection for a skin disability; and SMC based on the need for aid and attendance and/or on account of being housebound for any period other than September 19, 2011, to November 30, 2011. In the SSOC, the RO also denied SMC for loss of use of a creative organ. In a separate SSOC issued that same month, the RO continued to deny effective dates earlier than September 1, 2011, for the award of a TDIU and establishment of basic eligibility for DEA benefits. All matters were thereafter returned to the Board for further appellate consideration. Unfortunately, the Board finds that another remand is warranted, even though such will, regrettably, further delay an appellate decisions on the claims on appeal. Under 38 U.S.C. § 5103A, VA must "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary." 38 U.S.C. § 5103A(a)(1); 38 C.F.R. § 3.159(c) (obligating VA to obtain relevant records from Federal department or agency). This duty to assist includes making reasonable efforts to obtain relevant records, including private records, as long as the claimant "adequately identifies" those records and authorizes the Secretary to obtain them. 38 U.S.C. § 5103A(b)(1); Loving v. Nicholson, 19 Vet. App. 96, 101-02 (2005). A review of the record shows that in February 2017, VA received from the Veteran's attorney a fax containing a VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs, and a VA Form 21-4142a, General release for Medical Provider Information to the Department of Veterans Affairs, in which the Veteran identified having received treatment from Dr. S. at the Carolina Pain Center from 2015 to the present and from Dr. S. at the Naval Hospital Camp Lejeune from 2013 to the present. In April 2017, a decision review officer (DRO) issued a deferred rating decision, noting that "a partial form was scanned" on February 17, 2017, but not developed. The DRO stated that "[d]evelopment of those records are required prior to scheduling remand exam." In response to the deferred rating decision, the RO sent to the Veteran a letter requesting that she "complete and sign the enclosed forms" in order for VA to obtain records from Dr. S. and Dr. S.. Enclosed were VA Forms 21-4142a and 21-4142. Comparing the enclosed forms with the forms submitted by the Veteran's attorney, the Board cannot discern why VA required the Veteran to again submit the VA Forms 21-4142a and 21-4142, as all of the information requested on those forms was previously provided to VA in February 2017. Indeed, the Veteran's completed forms contained her name, address, social security number, date of birth, and signature. The Veteran also provided the name and address of the providers/facilities, as well as the dates of treatment. Thus, it is unclear to the Board why the RO did not attempt to obtain the identified treatment records. Further, although the Veteran did not respond to the April 2017 letter, again the Board points out that it is not clear why she was required to again provide completed VA Forms 21-4142a and 21-4142. Thus, the Board will not hold against the Veteran the fact that she did not respond to the RO's April 2017 request for information, as it would appear that the RO erred in requesting her to do so in the first place. Accordingly, because the Veteran identified potentially relevant treatment records that have yet to be obtained, the Board finds that the service connection and increased rating matters must again be remanded for the agency of original jurisdiction (AOJ) to attempt to obtain these treatment records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (2010) ("[I]f there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records"). Indeed, as the Board has no way of knowing the contents of the private treatment records, to include whether they may contain information relevant to individual claims, the Board has no choice but to remand each of the service connection and increased rating matters. The Board further points out that given the deficiencies in certain VA examination reports, as discussed in the prior actions in this appeal, records related to treatment of the Veteran's RSD during the relevant time period are especially important in determining the severity of the Veteran's disabilities throughout the appeal period. The Board notes also that a review of the record reveals that prior to being seen by Dr. S. for pain management, she was seen at Johnston Pain Management, and that she also had treatment at George Washington University Hospital. Although medical records furnished by the Social Security Administration contain the Veteran's initial consultation record from Johnston Pain Management in Jacksonville, North Carolina, dated in December 2013, no other records from that facility have been obtained. Additionally, the claims file contains no records from George Washington University Hospital. On remand, the AOJ should seek to obtain records from these facilities as well, to include requesting that the Veteran provide any necessary authorizations to allow VA to do so. With regard to the Veteran's claim for service connection for a skin disability, the Board finds that that matter must also be remanded for the AOJ to obtain an addendum medical opinion addressing the likelihood that the Veteran has a skin disability, to include tinea corporis, that is related to service. In the October 2019 remand, the Board instructed that the Veteran was to be scheduled for a VA skin examination and that an opinion was to be provided as to whether it is at least as likely as not that any skin disability had its clinical onset in service or is otherwise etiologically related to the Veteran's active military service. In January 2020, the Veteran underwent a VA skin examination. A review of the report reveals that the Veteran was not diagnosed as having a skin condition at that time. The examiner did, however, note that the Veteran was previously diagnosed with tinea corporis, but that she was last seen for this condition in 2003. The examiner also noted the Veteran's report that she had been suffering from itchy skin two to three times a year since 2009, but stated that it was unlikely that the Veteran gets tinea corporis multiple time per year and there is no objective evidence of reoccurrence. The examiner then opined that the Veteran's claimed skin condition was less likely than not incurred in or caused by service. As rationale for that opinion, the examiner noted that the Veteran had an acute episode of tinea corporis in service and that there is no evidence of chronicity of care, noting that the Veteran has not been evaluated for that condition since separation from service. Here, although the VA clinician provided the requested opinion, the Board finds the stated rationale to be lacking in detail. Indeed, it is unclear to what extent the examiner considered the competent and credible lay evidence of record regarding reoccurrence of skin symptoms after service. Rather, the rationale provided seemingly relies only on the absence of records documenting treatment after service. However, as discussed in the prior actions in this appeal, post-service treatment records include tinea corporis amongst the Veteran's chronic problems. Notably, a July 2010 treatment record shows that at that time, she presented for treatment for, among other things, skin symptoms. Tinea corporis is also noted as a chronic problem in April 2009 and a December 2012 treatment record shows that the Veteran was at that time diagnosed with an unspecified skin infection. Additionally, more recent VA treatment records dated in March 2020 include "[i]tching of skin" under the Veteran's problem list. This evidence undermines the examiner's reasoning as it, along with the Veteran's lay statements, suggest that the Veteran has suffered from skin symptomatology since service. Overall, without specific discussion of the Veteran's lay statements regarding onset and continuity of symptoms or consideration of the post-service medical evidence showing complaints or and treatment for skin symptoms, the Board cannot rely on the VA examiner's opinion that it is less likely than not that the Veteran has a skin condition that is related to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (providing that a "medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"). Another remand of the Veteran's claim for service connection for a skin condition, to include tinea corporis, is therefore required for a new opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stegall v. West, 11 Vet. App. 268, 270 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA "a concomitant duty to ensure compliance with the terms of the remand"); 38 C.F.R. § 3.159(c)(4). As to the issue of entitlement to SMC for loss of use of a creative organ, the Board notes that in denying entitlement to such, the RO simply stated that the evidence does not show entitlement to SMC for loss of use of a creative organ. Here, the evidence shows that the Veteran's is service-connected for painful intercourse and decreased libido with hypesthesia, associated with RSD of the right lower extremity. It is not clear, however, from the evidence currently of record whether the Veteran's service-connected disability prevents her from having sexual intercourse, resulting in the loss of use of a creative organ. Indeed, the Veteran has not been afforded a VA gynecological examination since December 2015, at which time she reported pain with sex. It was not indicated at that time whether the Veteran's sexual symptoms result in loss of use. Thus, the Board finds it necessary to remand the issue of entitlement to SMC for loss of use of a creative organ for the AOJ to afford the Veteran a medical examination to determine the current severity of her sexual symptoms, to include obtaining a medical opinion regarding whether the Veteran's sexual symptoms result in loss of use. 38 U.S.C. § 5103A(d) (VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim). Lastly, with regard to the issues of entitlement to SMC based on the need for aid and attendance and/or on account of being housebound and to effective dates earlier than September 1, 2011, for the award of a TDIU and basic establishment of DEA benefits, the Board finds it necessary to remand those matters as they are inextricably intertwined with the remanded service connection and increased rating claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). The matters are REMANDED for the following action: 1. Review the VA Forms 21-4142a and 21-4142 received in February 2017 and contact Dr. S. at the Carolina Pain Center and Dr. S. from the Naval Medical Center Camp Lejeune with a request that copies of all records of treatment or evaluation of the Veteran be provided to the AOJ. If new authorizations are necessary, request that the Veteran sign the necessary authorizations for release of such private medical records to VA. The Veteran should also be requested to provide the full name and address for Johnston Pain Clinic and George Washington Hospital, where she is noted to have received treatment. Following receipt of that information, contact the physicians/facilities in question, with a request that copies of all records of treatment or evaluation of the Veteran be provided to the AOJ. The Veteran should be requested to sign the necessary authorizations for release of such private medical records to VA. (The Veteran is reminded that "the duty to assist is not always a one-way street," Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), and that it is she who is ultimately responsible for submitting any private medical evidence.) 2. After all records and/or responses received from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, arrange to obtain a medical opinion from an appropriate clinician, based on claims file review, addressing the etiology of any diagnosed skin condition present at any time since September 2011, even if now resolved. (Only arrange for the Veteran to undergo VA examination, by an appropriate clinician, if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion.) The contents of the entire, electronic claims file must be made available to the designated clinician. Upon review of the claims file, the clinician should provide an opinion to whether the Veteran has a diagnosed skin condition that is at least as likely as not related to the Veteran's period of military service. The clinician is directed to consider that post-service treatment records dated in April 2009 and July 2010 include tinea corporis amongst the Veteran's chronic problems, that a December 2012 treatment record shows that the Veteran was at that time diagnosed with an unspecified skin infection, and that VA treatment records dated in March 2020 include "[i]tching of skin" under the Veteran's problem list. For the sake of completeness, and in consideration of the Veteran's lay statements, the clinician should assume that the Veteran has had tinea corporis during the relevant time period, even if treatment for such is not documented in the record. Complete, clearly-stated rationale for the conclusions reached must be provided. In rendering the opinion, the clinician is reminded that the absence of documented evidence of a specific diagnosed disability in service should not, alone, serve as the sole basis for any negative opinion. The clinician must consider and discuss all medical and other objective evidence of record, as well as all lay assertions, to specifically include the Veteran's statements regarding the onset and continuity of skin symptomatology, which assertions should be presumed credible. 3. Arrange for the Veteran to undergo a VA gynecological examination by an appropriate medical professional. The examiner should identify all symptoms related to the Veteran's service-connected painful intercourse and decreased libido with hypesthesia and should provide an opinion as to whether it is at least as likely as not the symptoms result in loss of use of a creative organ. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.