Citation Nr: 21040392 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 18-32 044 DATE: July 3, 2021 REMANDED Entitlement to an initial compensable rating for right lower extremity scar/skin disability is remanded. Entitlement to an initial compensable rating for anterior trunk scar/skin disability is remanded. Entitlement to an initial compensable rating for posterior trunk scar/skin disability is remanded. Entitlement to an initial compensable rating for left lower extremity scar/skin disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a heart disability, to include congestive heart failure and atrial fibrillation, to include as due to exposure to herbicide agents, jet engine exhaust and cold weather in Korea, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1951 to February 1955. This matter came before the Board of Veterans Appeals (Board) on appeal from September 2017, January 2018, February 2018, and May 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). An October 2018 Board decision remanded the issues on appeal for further development. The Veteran submitted an October 2019 VA Form 9 requesting a hearing before a Veteran's Law Judge. However, in an April 2021 statement the Veteran withdrew his hearing request and asked to continue his appeal without a hearing. The Board therefore deems his hearing request withdrawn and will proceed to adjudicate the issues on appeal based on the evidence of record. 1. Entitlement to an initial compensable rating for right lower extremity scar/skin disability 2. Entitlement to an initial compensable rating for anterior trunk scar/skin disability 3. Entitlement to an initial compensable rating for posterior trunk scar/skin disability 4. Entitlement to an initial compensable rating for left lower extremity scar/skin disability The October 2018 Board decision requested a VA examination regarding the nature and severity of the Veteran's scar/skin disabilities, specifically asking for an opinion regarding whether the Veteran met the criteria for having scars and whether any skin disabilities other than urticaria were present. The examiner was also asked to identify any associated functional impairments. The record shows that a VA dermatology examination was requested in August 2019 but was cancelled in September 2019 as the Veteran was unavailable. The Veteran then submitted an October 2019 statement asking to be rescheduled and indicating that he was willing to attend an examination. The record then shows that a VA skin examination was performed in December 2019. The examiner noted the Veteran's reports of being doused with fuel and having waxing and waning pain and hives since that time, especially on his back. In addition to the Veteran's service-connected urticaria, the examiner diagnosed hemosiderin, which he described as bluish, shiny, flaky dry skin, on the Veteran's bilateral lower extremities. However, the examiner did not indicate whether hemosiderin was associated with the Veteran's lower extremity service-connected scar/skin disabilities or specifically address whether the service-connected scar/skin disabilities met the criteria for scars, as requested. A January 2020 deferred rating decision then noted that the December 2019 VA examination pertained to the Veteran's service-connected urticaria but not to the remanded issues of increased ratings for the bilateral lower extremities, posterior trunk, and anterior trunk. An additional examination request was then made, but the record indicates that the examination was cancelled at the Veteran's request. While the record indicates that the Veteran cancelled the VA examination scheduled for February 2020, the record is silent for any notice or other explanation provided to the Veteran regarding the reason for scheduling a new VA skin examination only 2 months after he attended the December 2019 skin examination. Thus, there is no indication that the Veteran was advised that the information needed to decide his increased rating claims had not been obtained despite his having undergone a complete skin examination. The Board therefore cannot be certain that the Veteran understood the impact of cancelling the February 2020 examination upon his pending increased rating claim. Therefore, another attempt should be made to schedule the Veteran for a VA dermatological examination so that there is a complete record upon which to decide the Veteran's claim and he is afforded every possible consideration. 38 U.S.C. § 5103A (2018); 38 C.F.R. § 3.159 (2020). 5. Entitlement to service connection for a right ankle disability The Veteran contends that his right ankle disability is due to a right ankle injury in service. January 1955 service treatment records noted a sprained ankle one and a half months prior, with ongoing pain, and the January 1955 separation examination noted a sprained ankle and a torn ligament. A September 2017 VA examination did not diagnose a current ankle disability as there was no pathology to render a diagnosis. However, the examiner found an abnormal range of motion, with plantar flexion limited to 35 degrees. The Veteran also reported noted the Veteran's reports of ankle pain, weakness. and tenderness. The record therefore indicates that the Veteran may have functional impairment associated with his reported right ankle symptoms. The Board notes the Federal Circuit's holding in Saunders v. Wilkie, which stated that even in the absence of a presently-diagnosed condition, pain can cause functional impairment, and that in that situation, "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability." Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). While the September 2017 examiner found that the plantar flexion limitation was due to age, he did not clearly address whether the reported symptoms of pain and weakness had functional impairments. Significantly, the portion of the report that pertains to functional impact was not completed. Remand is therefore required to clarify whether the Veteran has a current right ankle disability, to include whether his reported symptoms of pain and weakness result in functional impairment. The September 2017 examiner also opined that the Veteran's ankle disability was not likely due to his in-service injury as the separation examination did not document complications or sequalae for the right ankle sprain and there was no continuity of symptoms. The Board notes however, that this opinion only addressed the in-service diagnosis of ankle sprain and did not address the torn ligament which was also noted in service. In addition, the examiner did not explain the basis of finding that there was no continuity of symptoms after service. The rationale for disregarding the Veteran's lay statements regarding chronic right ankle pain since the in-service injury is therefore unclear. As the examiner did not address the in-service ligament tear and did not provide a basis for disregarding the competent lay evidence of record, the opinion is inadequate and remand for a new opinion is required. The Board also notes that the Veteran is service-connected for pes planus, and the record contains an August 2010 VA examination noting that pes planus was associated with the in-service ankle injury and that the Veteran reported foot, ankle and leg pain since service. The examiner also found altered biomechanics and limitations on standing and walking associated with the pes planus. The Board finds that this examination, specifically the noted association between pes planus and the Veteran's ankle injury as well as a finding of altered biomechanics affecting ambulation, raises the question of whether the Veteran's ankle disability was caused or aggravated by the service-connected pes planus. An opinion regarding secondary service connection should therefore be obtained upon remand. 6. Entitlement to service connection for a heart disability, to include congestive heart failure and atrial fibrillation, to include as due to exposure to herbicide agents, jet engine exhaust and cold weather in Korea An April 2018 VA examination found that the Veteran's heart disability was not likely due to service, including herbicide agent exposure. As a rationale, the examiner stated that the Veteran's atrial fibrillation was not ischemic heart disease, which was the condition associated with herbicide agent exposure. The examiner also stated that the Veteran had never been diagnosed or treated for congestive heart failure. The Board notes, however, that subsequent VA treatment records show treatment for heart failure. January 2020 VA treatment records show a prescription to treat heart failure and the planned treatment included continuing current medication for heart failure. Remand for a new VA examination is therefore required to determine whether the Veteran now has a current disability of congestive heart failure that is related to his active service. In addition, in his August 2018 Notice of Disagreement (NOD), the Veteran contended that his heart disability was due to exposure to jet engine exhaust and cold weather in Korea. These exposures were not addressed by the April 2018 opinion and should be addressed upon remand. The record contains a February 2018 formal finding that herbicide agent exposure could not be corroborated which specifically stated that the Veteran had not provided sufficient information regarding his claimed exposure. The Veteran then submitted an October 2019 statement asking VA to contact the 35th Airbase Group in Japan, Johnson Air Base, for information regarding his service, including his reported herbicide agent exposure. The Board notes that the Veteran's military personnel records have not been associated with the claim file and that a January 2012 response from the National Personnel Records Center (NPRC), indicated that the Veteran's records were unavailable and likely fire-related. While the Board's review indicates that some records from the 35th Airbase Group have already been added to the record, the record is silent for any indication that the AOJ conducted additional development after receiving the October 2019 statement from the Veteran identifying the source of the records he contends will show herbicide exposure. Mindful of the heightened duty to assist in fire-related cases, the Board finds that an additional attempt should be made to obtain any outstanding records from the 35th Airbase Group at Johnson Air Base should be obtained. Upon completion of that development, a formal finding regarding herbicide agent exposure should also be made and associated with the claim file. 7. Entitlement to service connection for a back disability The AOJ last adjudicated the issue of service connection for a back disability in a September 2019 Statement of the Case (SOC). Since that time, additional medical records, including VA treatment records, have been added to the claim file. A waiver of AOJ review was not submitted for those records. Accordingly, remand is necessary for the AOJ to consider the new evidence of record and issue a Supplemental Statement of the Case (SSOC). The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service personnel records and service treatment records, including any outstanding records from the 35th Airbase Group, Johnson Air Base in Japan. 2. After the development in (1), the AOJ should determine whether the Veteran would have been exposed to herbicide agents, based upon his service. A determination should be entered into the record. 3. Schedule the Veteran for a VA examination from a dermatologist, or if a dermatologist is not available, from an appropriate provider, to determine the current level of severity of his service-connected posterior and anterior trunk and bilateral lower extremity scar/skin disabilities. The examiner should review the file and provide a complete rationale for all opinions expressed. For each of the Veteran's posterior and anterior trunk and bilateral lower extremity scar/skin disabilities, the examiner should provide a full description of the disability, including diagnosis, signs and symptoms, and specifically indicate whether the Veteran's disability meets the criteria for having scars. The examiner should also address the December 2019 VA examiner's diagnosis of hemosiderin and indicate whether it is associated with any of the Veteran's posterior and anterior trunk and bilateral lower extremity scar/skin disabilities. To the extent possible, the examiner should identify any symptoms and functional impairments due to a skin disability alone. 4. Schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any current right ankle disability. The examiner should review the file and provide a complete rationale for all opinions expressed. In providing the requested opinions, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. The following opinions are requested: a) Does the Veteran have a current right ankle disability? The examiner is advised that pain with functional impairment, without an accompanying diagnosis of a present disease, can qualify as a disability. b) For any current right ankle disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service, to include his in-service ankle sprain and ligament tear, or whether it was caused or aggravated by the Veteran's service-connected pes planus. 5. Schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any current cardiac disability, to include congestive heart failure and atrial fibrillation. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current heart disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service, to include exposure to jet engine exhaust and cold weather while serving in Korea as well as any conceded exposure to herbicide agents. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 6. If upon completion of the above actions the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures, including issuance of an SSOC. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold 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.