Citation Nr: 22005705 Decision Date: 02/02/22 Archive Date: 02/02/22 DOCKET NO. 18-18 845A DATE: February 2, 2022 REMANDED Entitlement to service connection for a right shoulder condition is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with depression and anxiety, insomnia disorder, and posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for skeletal arthritis is remanded. Entitlement to service connection for a skin condition is remanded. Entitlement to an initial increased rating in excess of 10 percent for the left ankle condition is remanded. Entitlement to an increased rating in excess of 10 percent for the left knee condition is remanded. Entitlement to an increased rating in excess of 10 percent for the right knee condition is remanded. Entitlement to an increased rating in excess of 20 percent for the left shoulder condition is remanded. Entitlement to an increased rating in excess of 10 percent for the thoracolumbar spine condition is remanded. REASONS FOR REMAND The Veteran served on active duty with the Army from June 1999 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2015 and December 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing in September 2021. A transcript of the proceeding has been associated with the claims file. While the Veteran has expressly filed claims of service connection for PTSD and mood swings, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board finds that it is appropriate to recharacterize the claim more broadly as one of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, adjustment disorder with depression and anxiety, and insomnia disorder. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for a right shoulder condition is remanded. In September 2021, the Veteran testified that his right shoulder arthritis is attributable to wear and tear from log warrior competitions and playing sports in service. He also testified that his doctor told him his right shoulder condition is due to high impact training in the military. The Veteran was afforded a VA examination for his right shoulder condition in December 2015. The examiner opined that the Veteran's condition is less likely than not due to his service and most likely due to the aging process. The examiner did not specifically consider whether his right shoulder condition is related to the wear and tear of his military service or high impact training completed during his service. Accordingly, the Board finds that a new VA examination is necessary to determine whether the Veteran's right shoulder condition is related to his service. 2. Entitlement to service connection for bilateral hearing loss is remanded. 3. Entitlement to service connection for tinnitus is remanded. During the September 2021 Board hearing, the Veteran testified that he first noticed ringing in his ears during his first deployment to Saudi Arabia. He stated that prior to deployment, he went to the range frequently where he used a machine gun. He stated that the ringing in his ears never stopped. The Veteran also testified that he worked in logistics at a warehouse while in service. When deployed to Kuwait and Saudi Arabia, the Veteran stated that the warehouses were noisy due to forklifts, five-ton trucks, and heavy equipment, and he experienced decreased hearing. The Veteran was afforded a VA examination in December 2015. Audiometric testing revealed normal hearing, and the VA examiner opined that the Veteran's tinnitus is less likely than not related to in-service noise injury. However, as new evidence has been added since the last VA examination, the Board finds that a remand is necessary for an updated VA examination regarding the Veteran's claimed bilateral hearing loss and tinnitus. Additionally, the Veteran testified that he had an examination at the El Paso VA Medical Center (VAMC) immediately after service and informed the examiners about the ringing in his ears. The Veteran's available VA treatment records do not appear to include any records from the El Paso VAMC. Thus, a remand is necessary to obtain these records and associate them with the claims file. See 38 U.S.C. § 5103A (b), (c); 38 C.F.R. § 3.159 (b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). 4. Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with depression and anxiety, insomnia disorder, and PTSD is remanded. The Veteran contends that he is diagnosed with anger, insomnia, and mood swings, and the Vet Center in Jefferson County diagnosed him with PTSD, mood swings, and insomnia. He also testified that he is currently being treated for depression. The Veteran believes his diagnoses are related to his service, specifically, his overseas deployments. The Veteran's most recent VA examination was completed in December 2015 and the examiner opined that the Veteran did not have a mental disorder that conformed with DSM-5 criteria. However, since that examination, recent VA treatment records added to the claims file indicate that the Veteran has been diagnosed with adjustment disorder with depression and anxiety and insomnia disorder. Additionally, a September 2021 VA treatment note states that the Veteran's pain could be worsening his insomnia. Accordingly, the Board finds that a remand is necessary to obtain an updated VA examination to determine if the Veteran's diagnoses of adjustment disorder and insomnia disorder are related to his service and/or whether his insomnia disorder is secondary to the pain associated with his service-connected conditions. Finally, the Board notes that the Veteran's claims file does not include any records from the Vet Center of Jefferson County. Thus, a remand is necessary to obtain these records and associate them with the claims file. See 38 U.S.C. § 5103A (b), (c); 38 C.F.R. § 3.159 (b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). 5. Entitlement to service connection for skeletal arthritis is remanded. In September 2021, the Veteran testified that his joints, including his shoulders, elbows, wrist, knees, and ankles, ache due to wear and tear of his joints due to his duties in service such as physical training, log warrior competitions, and playing sports. The Veteran was afforded a VA examination for fibromyalgia in December 2015. However, the examiner opined that the Veteran did not have a diagnosis of fibromyalgia and that his diagnoses of degenerative disc disease and degenerative joint disease are less likely than not due to Gulf War syndrome. The examiner did not consider whether the Veteran's arthritis is related to the circumstances of his service, including the wear and tear of his joints from physical training, log warrior competitions, and playing sports. Accordingly, the Board finds it is necessary to remand the Veteran's claim for a VA examination to determine whether his claimed arthritis of his joints is related to wear and tear of his joints and his physical activities in service. 6. Entitlement to service connection for a skin condition is remanded. During the September 2021 Board hearing, the Veteran testified that he has a current skin condition that he believes is related to sleeping in a warehouse in Kuwait and using shower shoes. He further testified that he had ringworm and rashes in service, and he has continued to experience the same problems since service. Private medical treatment records provided by the Veteran show that he was diagnosed with pityriasis rosea in March 2011 and he was prescribed Allegra and triamcinolone acetonide cream for treatment. Also, an April 2020 VA treatment record notes a diagnosis of folliculitis on the right cheek. The Board finds that the Veteran is entitled to a VA examination to determine whether his skin conditions are related to his service, including his service in Kuwait and his in-service complaints of ringworm and rashes. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (recognizing that 38 C.F.R. § 3.159 (c)(4) presents a low threshold for the requirement of a VA examination). Accordingly, a remand is necessary to obtain a VA examination. 7. Entitlement to an initial increased rating in excess of 10 percent for the left ankle condition is remanded. 8. Entitlement to an increased rating in excess of 10 percent for the left knee condition is remanded. 9. Entitlement to an increased rating in excess of 10 percent for the right knee condition is remanded. 10. Entitlement to an increased rating in excess of 20 percent for the left shoulder condition is remanded. 11. Entitlement to an increased rating in excess of 10 percent for the thoracolumbar spine condition is remanded. During the September 2021 Board hearing, the Veteran testified that his service-connected conditions have worsened since his last VA examinations in March 2015. Additionally, he provided private treatment records suggesting worsening of his service-connected conditions. The Board notes that the VA's duty to assist requires VA to provide a contemporaneous medical examination when the Veteran asserts or the evidence indicates that the disability has worsened since the last VA examination or the record does not adequately reveal the current state of the disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Accordingly, the Board finds that a remand is necessary to obtain contemporaneous VA examinations to properly evaluate the severity of his service-connected conditions. Additionally, the Board notes that the most recent VA treatment records that have been associated with the claims file are dated in May 2018. All relevant VA treatment records created since that time should be obtained and associated with the claims file. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from May 2018 to the Present. 2. Obtain the Veteran's records from the El Paso VA Medical Center beginning September 2004 to the Present. 3. Obtain the Veteran's treatment records from the Vet Center in Jefferson County, Texas for the period from September 2004 to Present. 4. After the above-mentioned development is completed, schedule the Veteran for a VA examination with an appropriate clinician for his claimed right shoulder condition. The examiner must review the claims file. The examiner is asked to opine whether it is at least as likely as not that the Veteran's right shoulder condition is related to his service, to include the wear and tear from activities such as log warrior competitions, playing sports, or high impact physical training. Any opinion expressed should be accompanied by a complete rationale. 5. Schedule the Veteran for a VA examination with an appropriate clinician for his claimed bilateral hearing loss and tinnitus conditions. The examiner must review the claims file. (a) The examiner is asked to opine whether it is at least as likely as not that the Veteran's bilateral hearing loss and/or tinnitus are related to his service, to include his exposure to machine guns while at the firing range and/or his exposure to noises in the warehouse including forklifts, five-ton trucks, and heavy equipment. (b) The examiner is also asked to opine as to whether his bilateral hearing loss and/or tinnitus at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? When rendering an opinion, the examiner is asked to consider the Veteran's September 2021 testimony where he stated that he first noticed tinnitus and hearing loss during service and the conditions continued after his separation from service. Any opinions expressed should be accompanied by a complete rationale. 6. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorders including posttraumatic stress disorder (PTSD), adjustment disorder, and insomnia disorder. (a) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. (b) If any other acquired psychiatric disorders are diagnosed, including adjustment disorder with depression and anxiety and insomnia disorder, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include his service in Saudi Arabia and Kuwait were he was exposed to scud missiles being fired and warning alarms causing him stress. (c) The examiner must also offer an opinion as to whether the Veteran's diagnosed insomnia disorder is at least as likely as not (1) proximately due to pain associated with his service-connected disabilities; and/or (2) aggravated, i.e., worsened beyond its natural progression, by pain associated with his service-connected disabilities. Any opinions expressed should be accompanied by a complete rationale. 7. Schedule the Veteran for a VA examination with an appropriate clinician for his claimed skeletal arthritis condition. The examiner must review the claims file. The examiner is asked to opine whether it is at least as likely as not that the Veteran's skeletal arthritis condition is related to his service, to include the wear and tear from activities such as log warrior competitions, playing sports, or high impact physical training. Any opinion expressed should be accompanied by a complete rationale. 8. Schedule the Veteran for a VA examination with an appropriate clinician for his claimed skin condition. The examiner must review the claims file. The examiner is asked to opine whether it is at least as likely as not that the Veteran has a diagnosed skin condition, to include pityriasis rosea and folliculitis that is related to his service, specifically his service in Kuwait. When rendering an opinion, the examiner must consider the Veteran's September 2021 testimony that he slept in a warehouse in Kuwait where he experienced rashes and ringworm that continued after service. Any opinion expressed should be accompanied by a complete rationale. 9. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left ankle, left knee, right knee, left shoulder, and thoracolumbar spine conditions. 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 so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, Associate 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.