Citation Nr: 21042196 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 15-38 077 DATE: July 12, 2021 REMANDED Entitlement to service connection for a disability of the eyes, to include conjunctivitis is remanded. Entitlement to service connection for a disability claimed as residuals of heat exhaustion is remanded. Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), to include somatization disorder is remanded. Entitlement to service connection for frost bite (claimed as frost nip) is remanded. Entitlement to service connection for traumatic brain injury (TBI), to include concussion is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ADT) from January 2003 to May 2003, on active duty from December 2004 to October 2005 and June 2009 to April 2010. The Veteran's service included assignment to the Persian Gulf (also known as the Southwest Asia Theater of Operations), specifically Kuwait. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Veteran appeared at a hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is in the record. In April 2021, the Veteran was notified that the VLJ who conducted the October 2016 hearing was no longer employed by the Board. She was offered the opportunity for a new hearing. She was advised that if she did not respond within 30-days the Board would assume that she did not want an additional hearing. To date, the Veteran has not responded. This matter was remanded in November 2018 for further development. While pending return to the Board, in June 2020, the RO granted service connection for bilateral plantar fasciitis, a back disability, cervical spine disability, residuals of a right medial tibial plateau stress fracture, left and right leg shin splints, and left and right fifth toe disabilities. The Board considers this to be a full grant of the benefits sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). In addition, the RO granted service connection for posttraumatic stress disorder (PTSD) with panic attacks and unspecified depressive disorder. This issue is no longer on appeal. Id. However, as will be discussed below, the issue of entitlement to service connection for an acquired psychiatric disorder, other than PTSD and unspecified depressive disorder, remains on appeal as the Veteran's somatization disorder remains on appeal. The Board is expanding the scope of the Veteran's claims to encompass any medical or psychiatric diagnosis raised by the record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). REASONS FOR REMAND 1. Entitlement to service connection for a disability of the eyes. The Veteran seeks service connection for an eye disability. She was afforded a December 2019 VA examination. A clarifying opinion is required as the VA examiner opined that the Veteran did not suffer from a current eye disability, but also indicated that the Veteran suffers from blurred vision. The U.S. Court of Appeals for the Federal Circuit recently held that symptomatology may constitute a disability for service connection purposes where the evidence shows the symptomatology causes functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Given the holding of Saunders and the Veteran's reports of ongoing symptomatology on Board hearing, a remand is required. Additionally, as the Veteran is already service connected for diplopia and opinion needs to be obtained addressing the relationship, if any, between this condition and her noted blurred vision. The examiner should also address whether the Veteran's service-connected migraine headaches aggravate her blurred vision. 2. Entitlement to service connection for a disability claimed as residuals of heat exhaustion. 3. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include somatization disorder. A September 2020 VA examiner opined that the Veteran did not suffer from residuals of heat exhaustion. Instead, "most of" the Veteran's reported symptomatology was due to her known somatization disorder and "other conditions." A remand is required for clarification and nexus. The examiner failed to specify the nature or etiology of the "other conditions" causing the Veteran's symptoms. An addendum is required. In addition, the examiner, an OBGYN, opined that the Veteran suffered from somatization disorder, but stated that assessment of this condition was outside of the scope of the examination. Importantly, somatization disorder, which is considered to be an acquired psychiatric disorder, was not diagnosed or addressed on November 2019 PTSD examination. Given the findings of the 2020 examiner, a mental health examination opinion as to somatization disorder must be obtained. 4. Entitlement to service connection for frost bite (claimed as frost nip). The Veteran was afforded a November 2019 VA examination. The examiner opined that the Veteran's in-service frost nip had resolved and that she did not suffer from current symptomatology. In rendering this opinion, the examiner failed to address the Veteran's contentions on Board hearing, or VA examination of on-going symptomatology in and since service. Specifically, the Veteran reported still suffering from swelling of the hands, and discoloration with her skin turning purple and blue. The examiner also did not address the Veteran's report of needing to take ibuprofen to treat her condition. Given the Veteran's on-going symptomatology, an addendum opinion, which addresses the holding of Saunders, is required. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). 5. Entitlement to service connection for TBI, to include concussion. The Veteran was afforded a TBI VA examination in November 2019. The examiner opined that the Veteran's TBI resolved with no symptoms. However, in rendering this opinion examiner indicated that the Veteran did not report suffering from memory or concentration issues. Such an opinion fails to address the Veteran's reports throughout the record, to include on Board hearing, that she has suffered from memory loss, forgetfulness, and concentration issues. Of note, the Veteran's reported history of these symptoms on November 2019 VA psychiatric examination, but none were associated with her psychiatric disabilities. Finally, on Board hearing the Veteran reported suffering from stuttering since her head injury, this also was not addressed on TBI examination and must be on remand. 6. Entitlement to service connection for a left ankle disability. 7. Entitlement to service connection for a right ankle disability. As indicated in the introduction, the Veteran was afforded service connection for leg, shin, toe, and foot disabilities. An opinion should be obtained addressing whether these conditions either individually or when combined caused or aggravated the Veteran's ankle disabilities. Such an opinion is warranted as VA examinations reflect the Veteran's service-connected disabilities impact her mobility and stance. The matters are REMANDED for the following action: 1. Forward the Veteran's claims file to a medical professional qualified to provide an opinion regarding the nature and etiology of her blurred vision. If the examiner determines an additional examination is needed, such an examination should be scheduled. (a.) Following a review of the relevant records and lay statements, and an additional examination if indicated, the examiner should identify all diagnoses applicable to the Veteran's blurred vision. If the examiner determines there is no diagnosis, s/he should state whether the Veteran's blurred vision rises to the level of functional impairment of earning capacity. (b.) Then, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that: (c.) Any condition manifesting as blurred vision originated during or is otherwise etiologically related to the Veteran's active service. (d.) In providing his or her opinion, the examiner should address the service medical records showing in-service complaints of blurred vision, and the Veteran's statements that her blurred vision has persisted ever since service. (e.) is it at least as likely as not (that is, a probability of 50 percent or greater) that the Veteran's blurred vision (and/or the diagnosed disability causing the blurred vision) was aggravated, regardless of its permanence, due to the Veteran's service-connected diplopia and/or migraines disorder. (f.) The examiner should accept the history of symptoms provided by the Veteran as true unless the examiner provides a rationale as to why the Veteran's recollection is affirmatively contradicted by the medical evidence. A complete rationale should be provided for all opinions 2. Obtain an addendum opinion, by the September 2020 examiner, or if unavailable, an appropriate clinician, to determine the nature and etiology of her claimed residuals of heat exhaustion. Reexamination is left up to the discretion of the examiner. (a.) The examiner must provide an opinion addressing the findings of the September 2020 VA examiner. The 2020 examiner opined that the Veteran did not suffer from residuals of heat exhaustion. Instead, "most of" the Veteran's reported symptomatology was due to her somatization disorder and "other conditions." The examiner did not specify which "other conditions," beyond her psychiatric disability, caused her claimed symptoms. A clarifying opinion is required. (b.) Once clarified, examiner must opine whether any of these identified "conditions" are due to an in-service injury, event, or disease. (c.) The examiner must also opine whether it is at least as likely as not (that is, a probability of 50 percent or greater) that any diagnosed " other conditions" were caused or aggravated, regardless of its permanence, due to the Veteran's service-connected disabilities. 3. Obtain an addendum opinion, by an appropriate mental health clinician, to determine the nature and etiology of her somatization disorder. Reexamination is left up to the discretion of the examiner. The examiner must opine whether: (a.) The Veteran suffers from somatization disorder. (b.) Whether it is at least as likely as not due to an in-service injury, event, or disease. (c.) It at least as likely as not that the Veteran's somatization disorder was caused by and/or aggravated by, regardless of its permanence, due to the Veteran's service-connected disabilities of the PTSD, panic attacks, unspecified depressive disorder, and/or any other service-connected disability. The examiner should accept the history of symptoms provided by the Veteran as true unless the examiner provides a rationale as to why the Veteran's recollection is affirmatively contradicted by the medical evidence. A complete rationale should be provided for all opinions. 4. Forward the Veteran's claims file to an appropriate examiner for an opinion addressing the Veteran's claimed residuals of frostbite. The need for reexamination is left up to the discretion of the VA examiner. The examiner should answer the following questions: (a.) Does the Veteran currently or at any time during the appeal manifested residuals of frostbite? If the examiner determines there is no diagnosis, s/he should state whether the Veteran's purported symptoms rise to the level of functional impairment of earning capacity. In answering this question, the examiner must specifically address VA examination reports, and the Veteran's testimony/assertions of suffering from swelling of the hands, numbness, and discoloration with her skin turning purple and blue. The examiner also did not address the Veteran's report of needing to take ibuprofen to treat her condition. (b.) Does any condition manifesting as hand swelling, numbness, and discoloration originated during or is otherwise etiologically related to the Veteran's active service? The examiner should accept the history of symptoms provided by the Veteran as true unless the examiner provides a rationale as to why the Veteran's recollection is affirmatively contradicted by the medical evidence. A complete rationale should be provided for all opinions. 5. Forward the Veteran's claims file to an appropriate examiner for an opinion addressing the Veteran's claimed residuals of TBI. The need for reexamination is left up to the discretion of the VA examiner. The examiner should answer the following questions: (a.) Does the Veteran currently or at any time during the course of the appeal manifested residuals of TBI? In answering this question, the examiner must specifically address treatment medical records, VA psychiatric examination reports, and the Veteran's lay assertions of suffering from cognitive impairment, stuttering, memory loss and forgetfulness. Note, if the examiner determines there is no diagnosis, s/he should state whether the Veteran's reported symptoms of memory loss, decreased concentration, forgetfulness, and stuttering rise to the level of functional impairment of earning capacity. (b.) If the answer to (a) is yes, is it at least as likely as not that any diagnosed residuals of TBI, and/or any condition manifesting as memory loss, decreased concentration, forgetfulness, and stuttering is etiologically related to the Veteran's service? Is it at least as likely as not (that is, a probability of 50 percent or greater) that the Veteran's TBI residuals and/or or any condition manifesting as memory loss, decreased concentration, forgetfulness, and stuttering was aggravated, regardless of its permanence, due to the Veteran's service-connected disabilities, to include, migraine headaches, PTSD, panic attacks, and/or unspecified depressive disorder. The examiner should accept the history of symptoms provided by the Veteran as true unless the examiner provides a rationale as to why the Veteran's recollection is affirmatively contradicted by the medical evidence. A complete rationale should be provided for all opinions. 6. Obtain an addendum opinion, by an appropriate examiner, to determine the nature and etiology of her ankle disabilities. Reexamination is left up to the discretion of the examiner. The examiner must opine whether: (a.) Is it at least as likely as not (that is, a probability of 50 percent or greater) that the Veteran's right and/or left ankle disabilities were caused and/or aggravated by, regardless of its permanence, due to the Veteran's service-connected disabilities of fibromyalgia, plantar fasciitis, right medial tibial plateau stress fracture, left and/or right leg shin splints, and/or right/left big toe disabilities (either individually or in combination). Note, VA examination reports reflect that the Veteran's service-connected disabilities impact her mobility and stance. (Continued on the next page) (b.) The examiner should accept the history of symptoms provided by the Veteran as true unless the examiner provides a rationale as to why the Veteran's recollection is affirmatively contradicted by the medical evidence. A complete rationale should be provided for all opinions. A. Yaffe Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. L. Burroughs, 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.