Citation Nr: 21040428 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-65 136 DATE: July 3, 2021 ORDER Entitlement to service connection for folliculitis is granted REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to a rating higher than 10 percent for back disability is remanded. Entitlement to service connection for psoriasis is remanded. Entitlement to service connection for migraines, to include as due to undiagnosed illness or as secondary to tinnitus, is remanded. Entitlement to service connection for gastrointestinal (GI) disabilities, to include as due to undiagnosed illness, is remanded. Entitlement to service connection for hemorrhoids, to include as due to undiagnosed illness, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his folliculitis had its onset in service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for folliculitis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 2004 to June 2005 and May 2006 to May 2007, including deployment to Iraq. The claims were appealed from a July 2017 rating decision. The Veteran filed a notice of disagreement (NOD) in August 2017, which resulted in a November 2017 statement of the case (SOC). Thereafter, the Veteran filed a substantive appeal and requested a videoconference hearing. The hearing was conducted in September 2020, and transcript of the hearing is of record. In his NOD, the Veteran asserted that his migraines are secondary to his tinnitus. In addition, the Veteran has Gulf War service. For these reasons, the Board of Veterans' Appeals (Board) has expanded the claims for migraine, GI disability, and hemorrhoids as reflected above. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). 1. Entitlement to service connection for folliculitis is granted. The Veteran contends that he has folliculitis that started in service. Resolving reasonable doubt in the Veteran's favor, the Board of Veterans' Appeals (Board) concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A May 2017 VA skin examination shows that the Veteran has a current diagnosis of folliculitis. The Veteran testified that his skin rash began in service. Review of his service treatment records show that he reported skin disease or rash after deployment in May 2008. The Veteran is competent to testify that the skin rash symptoms he had in service match with the symptoms that are now diagnosed as folliculitis. The Board finds no reason to doubt his credibility. The record has two opinions from May and June 2017, where the examiners opined that the Veteran's folliculitis is less likely than not related to his military service. According to the May 2017 opinion, the Veteran's folliculitis is a condition with clear and specific etiology, and it is less likely than not related to the Veteran's service in Southwest Asia. The June 2017 examiner reasoned that "there is no confirmation that a skin disease or rash existed at post-deployment screenings and/or at post-deployment [h]ealth [r]eassessment." Both opinions, however, disregard the Veteran's report of skin disease or skin rash on the head and chest during his post-deployment screening. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate or incomplete factual premise is not probative). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current folliculitis arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for folliculitis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. 3. Entitlement to an initial rating higher than 10 percent for back disability is remanded. VA's duty to assist includes providing an examination that accurately captures the severity of a veteran's disability picture. Here, the Veteran underwent VA hearing loss and VA back examinations in April and May 2017, respectively. Since that time, he testified that the severity of his hearing loss and back disability has worsened. Accordingly, the most recent examinations of record may not reflect the current severity of his bilateral hearing loss and back disability and a remand is necessary before the claims can be adjudicated. 4. Entitlement to service connection for psoriasis is remanded. The claim for service connection for psoriasis was denied because the medical evidence of record did not reflect a current diagnosis. During the hearing, the Veteran testified that there are outstanding relevant private treatment records. See hearing transcript at 10. Therefore, the Board finds a remand to obtain the outstanding private treatment records is necessary before the claim can be adjudicated. 5. Entitlement to service connection for migraines, to include as due to undiagnosed illness or as secondary to tinnitus is remanded. The Veteran claims that he has migraines/headaches that are secondary to his tinnitus. See August 2017 NOD. The Veteran was provided a Gulf War General Medical Examination in May 2017, where the examiner concluded that the Veteran's migraine is a condition with clear and specific etiology. The examiner, however, did not provide an opinion as to whether the Veteran's condition is secondary to his tinnitus. Therefore, a remand to obtain an addendum opinion is necessary before the claim can be adjudicated. 6. Entitlement to service connection for GI disability, to include as due to undiagnosed illness, is remanded. As noted above, the Veteran is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). He underwent a VA examination in May 2017, where the examiner found that he does not meet the criteria for diagnosis of irritable bowel syndrome. The Veteran symptoms include urgent need to use the bathroom and cramps. See hearing transcript at 18; NOD. During the Gulf War General Medical Examination in May 2017, the examiner stated that irritable bowel syndrome is a disease with clear and specific etiology and the Veteran did not meet the criteria for a diagnosis of irritable bowel syndrome. The examiner did not specifically discuss his symptoms and no examiner has opined on any undiagnosed illness-related questions. The Veteran stated that these symptoms have been present since service, but VA treatment records do not reflect complaint or treatment, and in one instance in 2016 the Veteran denied any GI symptoms. Thus, it is unclear whether the symptoms have been present for six months or longer to qualify as a chronic disability. The pathophysiology and etiology of his condition, and whether it is chronic, is unclear. Accordingly, on remand, a medical opinion must be obtained to discuss these matters. 7. Entitlement to service connection for hemorrhoids, to include as due to undiagnosed illness, is remanded. Similarly, the Veteran claims that he has hemorrhoids that started during his 2007 deployment. See August 2017 NOD. The May 2017 Gulf War General Medical Examination did not specifically address the pathophysiology and etiology of this condition. VA treatment records dated in 2016 show the Veteran denied any rectal bleeding or hemorrhoids. Moreover, the Veteran has testified there are outstanding private treatment records that are relevant to the claim. Therefore, the Board finds that a remand is necessary before the claim can be adjudicated. 8. Entitlement to a TDIU is remanded. During the hearing, the Veteran testified that his back disability significantly limits his ability to perform his job and the only reason that he can maintain employment is because other employees cover for him. See hearing transcript at 15. Reviewing this evidence in light most favorable to the Veteran, the Board finds that the claim for TDIU is raised as part and parcel of the claim for increased rating for back disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Because a decision on the claim for increased rating for back disability could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. 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. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected back disability. 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. 3. Take the necessary steps to allow the Veteran to identify and provide releases for outstanding private treatment records. Make attempt to obtain any identified records. 4. After completion of directive #3, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of any migraines. The Veteran's claims file must be made available to the examiner for review in connection with the examination. The examiner must take a complete history from the Veteran. All indicated tests and studies should be completed. Following the completion of the examination, the examiner must provide an opinion answering the following questions: (a) Are the Veteran's migraines at least as likely as not (a 50 percent or greater probability) caused by tinnitus? And (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's migraines are aggravated (worsened beyond their natural progression) by tinnitus? Explanations for all opinions must be provided. In providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran's statements regarding the onset of his symptoms. 5. After completion of directive # 3, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of any GI disability. The Veteran's claims file must be made available to the examiner for review. The examiner must take a complete history from the Veteran. All indicated diagnostic tests and studies should be completed. The examiner should then record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. The examiner is asked to provide responses to the following: (a.) Identify the Veteran's objective indications of a disability. "Objective indications" of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). (b.) By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. (c.) If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. (d.) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. (e.) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. (f.) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's diagnosed condition was incurred in, or is otherwise related to, his active service? A complete rationale must be provided for all opinions expressed. 6. After completion of directive # 3, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of any hemorrhoids. The Veteran's claims file must be made available to the examiner for review. The examiner must take a complete history from the Veteran. All indicated diagnostic tests and studies should be completed. The examiner should then record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. The examiner is asked to provide responses to the following: (a.) Identify the Veteran's objective indications of a disability. "Objective indications" of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). (b.) By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. (c.) If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. (d.) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. (e.) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. (f.) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's diagnosed condition was incurred in, or is otherwise related to, his active service? A complete rationale must be provided for all opinions expressed. 8. Develop and adjudicate the issue of entitlement to a TDIU in the first instance. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Solomon 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.