Citation Nr: 21030465 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-43 576 DATE: May 19, 2021 ORDER Entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is dismissed. REMANDED Entitlement to service connection for gastroesophageal reflux disorder (GERD) is remanded. Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. Entitlement to service connection for tinea corporis (skin condition) is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for a neurological condition (dizziness) is remanded. Entitlement to service connection for tuberculosis is remanded. Entitlement to service connection for chronic fatigue syndrome (CFS) is denied. Entitlement to a compensable rating for pseudofolliculitis barbae (PFB) is remanded. FINDING OF FACT In May 2020, prior to the promulgation of a decision in the appeal, the Board received notification of the Veteran's request to withdraw his appeal of the claim of increased rating for his PTSD. CONCLUSION OF LAW The criteria for withdrawal of entitlement to an increased rating for PTSD by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1990 to April 1996. 1. Entitlement to an increased rating in excess of 70 percent for PTSD The Board may dismiss any appeal which 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. In the present case, the Veteran noted his wish to withdraw the appeal for entitlement to an increased rating for PTSD in a May 2020 letter. In addition, the Veteran's attorney specifically requested the withdrawal and the Veteran agreed, during his hearing before the undersigned Veterans' Law Judge (VLJ), and the withdrawal was reduced to writing in the hearing transcript. As such, there remain no allegations of errors of fact or law for appellate consideration with respect to this issue, and the claim is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for GERD is remanded. 2. Entitlement to service connection for IBS is remanded. 3. Entitlement to service connection for tinea corporis (skin condition) is remanded. 4. Entitlement to service connection for fibromyalgia is remanded. With regard to the Veteran's claims for service connection for GERD, IBS, a skin condition, and fibromyalgia, the Board finds that the opinions obtained by the RO are inadequate, and remand is required to obtain additional opinion for the VA to fulfill the duty to assist the Veteran. The Board notes that the VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). The Veteran was afforded a VA examination in April 2016 to assess the nature and etiology of his GERD and IBS. To this end, the VA examiner ultimately found that the Veteran's conditions were less likely than not related to this active service. The VA examiner's rationale was based on a lack of any evidence of treatment for these condition during service, and that such conditions of IBS and GERD, were common among the general population. The Board finds that such opinion is inadequate, as it fails to address, regardless of the commonality of these conditions, if the Veteran's IBS and/or GERD arose during service and had continued until the present. Further, and most significant, the Veteran has since submitted an August 2020 opinion letter from his treating physician that explicitly found that his GERD and stomach condition all arose during the Veteran's active service. The Board finds that such opinion is corroborated by lay evidence, to include testimony presented during the Veteran's hearing before the undersigned, noting that he experienced symptoms such as cramps and diarrhea during service. However, as the private opinion fails to provide any rationale to its finding or reconcile the positive opinion with the VA examination, the Board also finds that this opinion cannot be dispositive of the claims for service connection. Therefore, as both the private positive opinion and the earlier April 2016 VA opinion are inadequate, a remand is required to acquire an addendum opinion to reconcile the evidence of record. Likewise, with regards to the Veteran's claim for a skin condition, in the August 2020 private opinion letter, the Veteran's treating physician Dr. B.W. explicitly found that the Veteran's tinea corporis arose during the Veteran's active service and has progressed until the present. Again, as no rationale is provided, the Board must find that such opinion cannot be considered dispositive, but does trigger the VA's duty to afford the Veteran a VA examination to assess the nature and etiology of the Veteran's claimed skin disability, to include his claimed tinea corporis. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, with regards to the Veteran's claim for fibromyalgia, the Board again finds that the VA and private examinations of record to be inadequate. With regards to the VA examination, the Veteran was afforded a VA examination in April 2016 for fibromyalgia. A close review of this VA examination report, however, reveals that the report is self-contradictory, as the examiner initially determines that the Veteran did not have a diagnosis of fibromyalgia, but in the remarks at the end, ultimately determines that the Veteran met the criteria for fibromyalgia. The Board finds that such inconsistency renders such opinion inadequate. The Board notes that to this end, the Veteran's private August 2020 private opinion letter explicitly notes a finding of fibromyalgia, and that such condition arose during service. However, as noted above, no rationale was provided for such positive opinion. Therefore, as both the VA and private opinions regarding the Veteran's claimed fibromyalgia are inadequate, remand is required to obtain an addendum opinion for this condition. 5. Entitlement to service connection for a neurological condition (dizziness) is remanded. The Board also finds that the VA examination afforded to the Veteran to determine the nature and etiology of his claimed dizziness is inadequate. Here, during the Veteran's hearing before the undersigned, the Veteran's representative explicitly asserted a new theory of entitlement, to include claiming that the Veteran's dizziness was secondary to his service-connected tinnitus or hypertension. The Board finds that as such secondary nexus was not discussed in the April 2016 VA examination and opinion afforded to the Veteran, such examination and opinion is considered inadequate, and remand is required. 6. Entitlement to service connection for tuberculosis is remanded. The Board finds that sufficient evidence is of record to invoke the VA's duty to provide the Veteran a VA examination to determine the nature and etiology of his claimed tuberculosis. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Robinette v. Brown, 8 Vet. App. 69 (1995). Here, the Veteran, during his hearing before the undersigned, explicitly claimed that he incurred tuberculosis, or some type of respiratory disability, during active service, and that such disability has continued until the present. To this end, the Veteran has submitted a private examination, completed on a VA medical examination form for tuberculosis, that expressly notes that the Veteran's tuberculosis was diagnosed, and arose in 1996, during this active service. The Board finds that such evidence is sufficient to at least trigger the duty to afford the Veteran a VA examination on remand. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 7. Entitlement to service connection for chronic fatigue syndrome (CFS) With regards to the Veteran's claim for CFS, the Board finds that again, the VA examinations afforded to the Veteran to determine the nature and etiology of this claimed disease is inadequate. The Veteran was afforded a VA examination in April 2017, and in this report the examiner noted no diagnosis for a condition of CFS; however, during the course of the report, the examiner noted affirmative in finding symptoms and manifestations 'attributable to' CFS, to include impairment thereof. While the VA examiner noted in the remarks that the Veteran's feeling of fatigue was more likely than not the result of his PTSD and sleep apnea, both of which are service-connected, that opinion is silent on how there can be symptoms and manifestations of CFS when no condition is diagnosed. Furthermore, in another VA examination for Gulf War Syndrome, conducted on the same day in April 2017, by a different VA examiner, the Veteran was explicitly noted to have had a history of chronic fatigue syndrome. The Board finds that the disparity in these VA examinations in determining whether the Veteran actually has a condition of CFS is inadequate, and remand is required so the VA may fulfill its duty to the Veteran. 8. Entitlement to a compensable rating for PFB is remanded. The Veteran last underwent a VA examination for his PFB in April 2017, over 4 years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, claims of a worsening condition regarding this condition since that examination has been set forth by the Veteran. Specifically, during testimony before the undersigned, the Veteran explicitly expressed that his condition had become worse. When available evidence is too old for an adequate evaluation of the current condition, VA's duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only is the last examination remote, but the examination appears to no longer indicate the Veteran's current level of disability. Consequently, after all outstanding medical records are associated with the claims file, a more contemporaneous examination is needed to rate the Veteran's claim for increased ratings for his PFB. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran that are not already of record. 3. Obtain a new VA opinion based upon file review. The VA examiner should review the evidence associated with the record. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided that explicitly demonstrates the Veteran's lay assertions regarding inservice symptoms. The VA examiner should offer the following opinions: Is it at least as likely as not (50 percent probability or greater) that the GERD had its onset in service, or is otherwise related to service? The examiner must reconcile opinion with those already of record, to include the positive opinion presented by the Veteran's treating physician Dr. B. W. 4. Obtain a new VA opinion based upon file review. The VA examiner should review the evidence associated with the record. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided that explicitly demonstrates the Veteran's lay assertions regarding inservice symptoms. The VA examiner should offer the following opinions: Is it at least as likely as not (50 percent probability or greater) that the IBS had its onset in, or is otherwise related to, service? The examiner must reconcile opinion with those already of record, to include the positive opinion presented by the Veteran's treating physician Dr. B. W. 5. Thereafter, afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature and etiology of the Veteran's skin disorder, to include tinea corporis. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. The examiner must identify all skin disorders present during the period of the claim. Following the examination and a review of the relevant records and lay statements, the examiner must state an opinion with respect to the following: (a) With respect to tinea corporis, whether it at least as likely as not (50 percent probability or greater) that it originated during service or is otherwise related to service, to include his service in the Gulf region. The rationale for all opinions expressed must also be provided and must explicitly show consideration of the Veteran's claim that such condition arose during his active service, as asserted during his hearing testimony at the Board; and all opinions must be reconciled with those other nexus determinations already of record, to explicitly include from Dr. B. W. 6. Schedule the Veteran for an examination to determine the nature and etiology of his symptoms claimed as fibromyalgia. The claims folder must be made available to and be reviewed by the examiner. The examiner should address the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's symptoms claimed as fibromyalgia, manifested during or are otherwise related to the Veteran's period of service, to include due to environmental exposure while stationed in the Southwest Asia theater of operations; (b) State whether the reported symptoms are attributable to (i) an undiagnosed illness; (ii) a diagnosable but without conclusive pathophysiology or etiology; (iii) a diagnosable chronic multi-symptom illness with a partially explained etiology or pathophysiology; or (iv) a disease with a clear and specific etiology and diagnosis; (c) whether such condition is cause/aggravated by the Veteran's other service-connected disabilities. In providing the requested opinion, the examiner should consider and discuss all pertinent medical and lay evidence of record, to include the Veteran's competent assertions as to the nature, onset, and continuity of such problems since service, and the Veteran's treating physician's, Dr. B. W.'s diagnosis and positive nexus opinion of record. 7. After the above has been completed, schedule the Veteran for an appropriate VA examination with an appropriate specialist, to determine what if any imbalance condition he has, or dizziness. The entire claims file must be made available to the examiner in conjunction with the examination. All indicated evaluations, tests and studies are to be performed. After reviewing all pertinent records associated with the claims file and conducting an evaluation of the Veteran, the examiner is requested to opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any such imbalance condition, to include dizziness and vertigo, is either directly related to active military service or is proximately due to or chronically aggravated by, the Veteran's already service-connected disabilities, to explicitly include tinnitus. 8. Schedule the Veteran for an appropriate VA respiratory examination to determine the existence and etiology of his claimed tuberculosis, to include providing a diagnosis. The claims folder and a copy of this remand should be made available to the examiner for review before the examination; the examiners must indicate that the claims folder was reviewed. The examiner is asked to determine whether the Veteran currently has a diagnosis of tuberculosis. If a disability is shown, indicate whether it is at least as likely as not (a 50 percent probability or greater) that such disability had its onset in service, or is otherwise related to service. The examiner must explicitly not consideration of the Veteran's lay statement regarding onset of symptoms. 9. Schedule the Veteran for a VA examination to determine the nature and etiology of his fatigue. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a) Provide a diagnosis for any disability related to the Veteran's fatigue demonstrated since service, found on current examination or in the record. (b) For each fatigue disability, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during the Veteran's service or is otherwise etiologically related to the Veteran's service, to include his service in Southwest Asia. (c) The clinician should also characterize the Veteran's claimed fatigue as belonging to one of the following four disability patterns: an undiagnosed illness; a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology; a diagnosable chronic multi-symptom illness with partially explained etiology/pathophysiology; or a disease with a clear and specific etiology. All appropriate medical testing should be conducted to rule out a diagnosis. 10. The RO should afford the Veteran an appropriate VA skin examination to ascertain the current severity and manifestations of the Veteran's service-connected pseudofolliculitis barbae disability. Access to the Veteran's electronic claims files must be made available to the examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examination should include a statement as the effect of the Veteran's service-connected pseudofolliculitis barbae disability on the Veteran's occupational functioning and daily activities. The appropriate DBQ for the service-connected pseudofolliculitis barbae disability should be utilized. The explanation for all opinions expressed must be provided. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.