Citation Nr: 21032302 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-46 707 DATE: May 26, 2021 ORDER Entitlement to service connection for bilateral breast calcification with history of bilateral reduction mammoplasty, claimed as fibrocystic breast, is granted. REMANDED The issue of entitlement to service connection for hypertension is remanded. The issue of entitlement to service connection for a urinary hesitancy disability is remanded. The issue of entitlement to service connection for an ovarian cyst disability is remanded. The issue of entitlement to service connection for hypothyroidism is remanded. The issue of entitlement to service connection for a temporomandibular joint (TMJ) disability is remanded. The issue of entitlement to an initial rating in excess of 20 percent for degenerative disc disease of the cervical spine is remanded. The issue of entitlement to an initial rating in excess of 20 percent for cervical radiculopathy of the right upper extremity is remanded. The issue of entitlement to an initial rating in excess of 20 percent for partial rotator cuff tear of the right shoulder is remanded. The issue of entitlement to an initial rating in excess of 30 percent for depressive disorder NOS is remanded. The issue of entitlement to an initial rating in excess of 20 percent for lumbar strain with degenerative arthritis of the lumbar spine is remanded. The issue of entitlement to an initial compensable rating for bilateral dry eyes is remanded. The issue of entitlement to an initial rating in excess of 20 percent for internal and external hemorrhoids is remanded. The issue of entitlement to an initial compensable rating for eczema is remanded. The issue of entitlement to an initial compensable rating for bilateral toenail onychomycosis is remanded. The issue of entitlement to an initial rating in excess of 30 percent for migraine headaches is remanded. The issue of entitlement to an initial compensable rating for cervical spine residual scar is remanded. The issue of entitlement to an initial compensable rating for right arm second degree burn scars is remanded. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, her bilateral breast calcification, claimed as bilateral fibrocystic breast disability, is at least as likely as not related to in-service mammoplasty. CONCLUSION OF LAW The criteria for service connection for bilateral breast calcification are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2006 to April 2014. The Board previously remanded the issue for further development in September 2019. The case has now been returned to the Board for appellate review. Attorney Woods withdrew his representation in December 2020. In Mach 2021, the Board sent a letter notifying the Veteran of the situation and asked if she wished to appoint new representation and provided instruction as to how to appoint a new representative. The Veteran has not responded to this letter, and she is currently unrepresented. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service connection for bilateral breast calcification, claimed as bilateral fibrocystic breast disability A March 2020 VA examiner found that the Veteran has a current diagnosis of benign bilateral breast calcification with history of bilateral reduction mammoplasty, but found no evidence of fibrocystic breast. A review of the Veteran's service treatment record indicates that the Veteran was treated for breast fibrocystic disease while in service. A September 2013 C&P Examination indicates that the Veteran had fibrocystic breast, stable. At the March 2020 VA examination, the Veteran reported that she had felt a lump in the right breast and that ultrasound she underwent then showed fibrocystic breast. The examiner reviewed the 2006 ultrasound of record, which was negative for cystic or solid mass. Although the examiner did not find fibrocystic breast, the examiner found that the Veteran has a diagnosis of benign bilateral breast calcification with history of in-service bilateral reduction mammoplasty and determined that this diagnosed condition is at least as likely as not incurred or caused by the in-service event. With resolution of reasonable doubt in the Veteran's favor, service connection for bilateral breast calcification, claimed as fibrocystic breast disability, is granted. REASONS FOR REMAND In the September 2019 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated her for her claimed disabilities at any time since her discharge from service. A review of the records indicates that the Veteran and her representative at that time submitted a filled-out VA Form 21-4142 with a signature page, in which she listed at least 19 providers, multiple times in April and May 2020. It appears that these documents were rejected for "incomplete request." Yet, it appears that the AOJ failed to contact the Veteran to help her rectify the deficiency in the form despite her multiple submission of the form. Due to lack of communication with the Veteran on this matter, it is not clear if she knew that the form she had submitted was deemed "incomplete" and why the private treatment records she permitted for VA to obtain have not been obtained. Upon remand, the AOJ must contact the Veteran and obtain a complete release authorization from her, and then, it must obtain the private treatment records per the release authorization. As a result, the AOJ has not complied with the remand directive (#2) and consequently the directives pertaining for examinations (#4). Stegall v. West, 11 Vet. App. 268, 271 (1998)(where remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). As such, the September 2019 remand text, though the Board does not repeat it in its entirety here, is still relevant to the issues on appeal. Moreover, some of the examinations conducted during the remand development subsequent to the September 2019 remand call for further questions as noted below. 1. The issue of entitlement to service connection for a urinary hesitancy disability is remanded. A March 2020 examiner provided a negative nexus opinion for urinary hesitancy because medical evidence does not show urinary disability and only one treatment noted for urinary tract infection while in service. The examiner missed the Veteran's reported symptoms of urinary hesitancy and delay in January 2008 and February 2013 in her service treatment records. See also September 2019 Board Remand. Moreover, the Veteran is now service-connected for pelvic pain syndrome. As such, after obtaining the private treatment records, a new VA examination must be scheduled and a medical opinion concerning its etiology, to include secondary service connection, must be obtained. 2. The issue of entitlement to service connection for hypothyroidism is remanded. A March 2020 VA examiner found that the Veteran has hyperthyroidism, but not hypothyroidism. However, the examiner did not provide an etiology opinion for hyperthyroidism. Upon remand, after obtaining the private treatment records, the AOJ must schedule a VA examination to ascertain if the Veteran has hypo- or hyper-thyroidism and obtain an etiological opinion for a diagnosed condition. 3. The issue of entitlement to service connection for a TMJ disability is remanded. A February 2020 VA examiner provided a negative nexus opinion, finding that the Veteran has no TMJ disability on examination. Although the examiner focused on reviewing dental service treatment records, a review of the claims file indicates that she was assessed with arthralgia of TMJ, related to her neck disability. A VA treatment record notes a TMJ disorder as a problem as of September 2019. Upon remand, after obtaining the private treatment records, the AOJ must schedule a VA examination to ascertain if the Veteran has a TMJ disorder and, if so, obtain an etiological opinion, to include an opinion on secondary service connection. All findings must be reconciled. 4. The issue of entitlement to an initial compensable rating for bilateral dry eyes is remanded. A March 2020 VA examiner specifically states that the Veteran's decrease in visual acuity or other visual impairment is attributable to mild dry eye syndrome. However, the examiner found corrected distance visual acuity was 20/20 or better in both eyes, no visual field defect, and no muscle dysfunction such as diplopia. It is not clear what visual impairment the examiner refers to. Upon remand, an addendum opinion must be obtained addressing this issue. 5. The issue of entitlement to an initial compensable rating for eczema is remanded. 6. The issue of entitlement to an initial compensable rating for bilateral toenail onychomycosis is remanded. A March 2020 VA examiner found that the Veteran has chronic and recurrent urticaria with date of diagnosis 2008, in addition to a diagnosis of atopic eczema and tinea unguium of toenails. Then, the examiner reported that recurrence of the generalized itchy urticaria interfered with her ability to work. However, there is no etiology opinion for urticaria. Moreover, the Veteran reported that she has been treated for skin conditions, and the nature of treatment during the appeal period is pertinent to evaluate her skin conditions under pertinent rating criteria. Thus, upon remand, after obtaining private treatment records, the AOJ must schedule a VA examination to ascertain etiology of urticaria and current severity of skin disabilities. 7. The issue of entitlement to service connection for hypertension is remanded. 8. The issue of entitlement to service connection for an ovarian cyst disability is remanded. These two issues were denied due to lack of evidence for current diagnosis. Upon remand, after obtaining private treatment records, the AOJ may need to schedule a VA examination to ascertain if the Veteran has a current diagnosis for these conditions and obtain an etiology opinion. 9. The issue of entitlement to an initial rating in excess of 20 percent for degenerative disc disease of the cervical spine is remanded. 10. The issue of entitlement to an initial rating in excess of 20 percent for cervical radiculopathy of the right upper extremity is remanded. 11. The issue of entitlement to an initial rating in excess of 20 percent for partial rotator cuff tear of the right shoulder is remanded. 12. The issue of entitlement to an initial rating in excess of 30 percent for depressive disorder NOS is remanded. 13. The issue of entitlement to an initial rating in excess of 20 percent for lumbar strain with degenerative arthritis of the lumbar spine is remanded. 14. The issue of entitlement to an initial rating in excess of 20 percent for internal and external hemorrhoids is remanded. 15. The issue of entitlement to an initial rating in excess of 30 percent for migraine headaches is remanded. 16. The issue of entitlement to an initial compensable rating for cervical spine residual scar is remanded. 17. The issue of entitlement to an initial compensable rating for right arm second degree burn scars is remanded. All of the increased rating claims are remanded, for private treatment records are pertinent in ensuring that VA provides accurate rating evaluation for the disabilities for the entire appeal period. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 again. If the form submitted by the Veteran is incomplete for any reason, contact the Veteran to rectify any deficiencies. Make two requests for the authorized records from all the providers listed in the form unless it is clear after the first request that a second request would be futile. 2. Obtain outstanding VA treatment records. All attempts to obtain records should be documented in the claims folder. 3. After all requested records have been associated with the claims file, schedule the Veteran for examinations by appropriate clinicians to determine the nature and etiology of urinary hesitancy, thyroid disability, and TMJ disability. The examiner must opine whether any currently diagnosed disability is at least as likely as not related to her service and whether any currently diagnosed disability is proximately due to or aggravated beyond natural progression by a service-connected disability. All service-connected disabilities must be considered in providing the opinion on secondary service connection. 4. After all requested records have been associated with the claims file and if the records indicate that the Veteran has a diagnosis of hypertension or ovarian disability, schedule the Veteran for examinations by appropriate clinicians to determine the nature and etiology of hypertension and ovarian disability. The examiner must opine whether any currently diagnosed disability is at least as likely as not related to her service and whether any currently diagnosed disability is proximately due to or aggravated beyond natural progression by a service-connected disability. All service-connected disabilities must be considered in providing the opinion on secondary service connection. 5. After all requested records have been associated with the claims file, obtain an addendum opinion from the March 2020 eye examiner, or appropriate clinician if the examiner is not available, clarifying whether the Veteran's dry eye syndrome cause visual impairment and if so, what it is. 6. After all requested records have been associated with the claims file, schedule the Veteran for a skin examination to determine the current severity of her skin disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In addition, the examiner must provide an etiology opinion for chronic urticaria as to whether it is related to her service and/or proximately due to or aggravated beyond natural progression by a service-connected disability. All service-connected disabilities must be considered when providing the opinion on secondary service connection. A complete rationale for all opinions must be provided. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Taylor 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.