Citation Nr: 22011900 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 16-58 660A DATE: March 2, 2022 ORDER Entitlement to service connection for a psychiatric disability, to include adjustment disorder with mixed anxiety and depressed mood, is granted. Entitlement to service connection for bilateral tinea pedis is granted. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a bilateral lung condition is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a low back disorder is remanded. FINDINGS OF FACT 1. The Veteran's adjustment disorder with mixed anxiety and depressed mood is related to service. 2. The Veteran's bilateral tinea pedis began during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for adjustment disorder with mixed anxiety and depressed mood are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral tinea pedis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes before the Board of Veterans' Appeals (Board) on an appeal from an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ). The Veteran requested a hearing before the Board in his substantive appeal in December 2016. The Veteran did not appear for a scheduled Board Hearing in December 2021. As such, a request for a Board hearing is withdrawn. Service Connection Claims Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Adjustment Disorder with Mixed Anxiety and Depressed Mood The Veteran has a current psychiatric disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A VA examiner who conducted a VA examination in September 2014 found that the Veteran had only one mental disorder, diagnosed as adjustment disorder with mixed anxiety and depressed mood. As the Veteran has a current diagnosis of a psychiatric disorder, the question then becomes whether the current disability is related to service. The VA examiner opined that, while the Veteran did not suffer from PTSD, the impact of events that occurred while he was at boot camp had a traumatic impact on him and that he experienced trauma-like symptoms relating to service. The Veteran reported that being a Marine had been a life-long dream, but that he was discharged medically during boot camp because of chronic pneumonia. While the examiner did not specifically attribute the Veteran's diagnosed adjustment disorder with mixed anxiety and depressed mood to service, it was clear that the "trauma-like symptoms" the examiner related to service were part of his diagnosed psychiatric disability. The examiner listed several symptoms attributable to the psychiatric diagnosis, including anxiety, suspiciousness, and panic attacks that occur weekly or less often, and opined that the Veteran did not have any other symptoms attributable to any other mental disorders. In other words, the Veteran's psychiatric symptoms were associated with his single diagnosed disability. As such, it is clear that the examiner attributed the Veteran's "trauma-like symptoms" to his diagnosed adjustment disorder with mixed anxiety and depressed mood. The September 2014 VA examiner's opinion is highly probative and persuasive, as it is based on a review of the evidence of record and supported by a medical explanation that is consistent with the Veteran's treatment history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). As the evidence of record persuasively supports a finding that the Veteran has a current psychiatric disability that is related to service, service connection is granted for adjustment disorder with mixed anxiety and depressed mood. Bilateral Tinea Pedis The Veteran contends that he began experiencing irritation of the skin on his feet while an active duty. See September 2014 VA skin examination report. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran was diagnosed with bilateral tinea pedis at the September 2014 VA examination, meeting the criteria for a current diagnosis. The Veteran's service treatment records do not reflect treatment for or reports of a bilateral disorder of the skin on his feet; however, as noted by the examiner in his September 2014 VA examination report, the Veteran reported the condition started in January 2014 and had been mild and stable. The Veteran is competent to report his symptoms of itching and dry skin. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994) Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence in service treatment records. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder. Id. As to whether the Veteran's bilateral tinea pedis began during service, while the service treatment records do not reflect that he reported his skin symptoms in service, the condition was mild and may not have ordinarily been reported. The weight of the lay and medical evidence is therefore in 'approximate balance' regarding whether the Veteran's symptoms of tinea pedis were present during service. Therefore, the Board resolves the benefit of the doubt in favor of the Veteran and finds that the Veteran's current tinea pedis began during service. As such, service connection is warranted for bilateral tinea pedis. REASONS FOR REMAND Records The record indicates that there may be outstanding relevant VA treatment records. The most recent VA medical records in the claims file are dated in October 2016. These records show that the Veteran was receiving ongoing treatment. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. In addition, the Veteran should be asked to identify any private providers who have treated him for his claimed disabilities. VA should then obtain authorization and request any identified records. Bilateral Lung Condition The Veteran contends that he has a current bilateral lung condition that began during or is attributed to service. Service treatment records show that the Veteran was discharged during basic training due to repeated bouts of pneumonia. The Veteran was provided with a VA examination in September 2014. He reported having frequent shortness of breath and chest pain since having pneumonia in November 2013. The examiner opined that there was no objective evidence to support a respiratory condition and that it was likely that the Veteran had pneumonia that had resolved. However, the examiner did not address the Veteran's reports of respiratory symptoms and chest pain. In addition, the Veteran underwent pulmonary function testing which was to be interpreted by a pulmonologist; however, it is unclear whether these results were ever interpreted. As such, on remand, the Veteran should be provided with another VA examination which addresses his contentions that he has current symptoms of a respiratory disorder. In addition, the results of the testing performed at his September 2014 VA examination should be interpreted and such interpretation should be added to the claims file. Sleep Apnea The Veteran contends that he has sleep apnea that is related to or began during service. The Veteran was scheduled for an examination in September 2014; however, the examiner found that an examination to determine whether the Veteran's sleep apnea was related to service was not possible as he had not yet undergone a sleep study. The claims file includes a sleep study performed in March 2015 which reflects moderate sleep apnea. As such, the Veteran should be provided with a VA examination to determine whether his current sleep apnea began during or is attributable to service. Back Disability The Veteran contends that he has a current back disability that is related to lifting a fellow service member while on active duty. Service treatment records show that the Veteran injured his back in service in January 2014 and was assessed with back strain. The Veteran was provided with a VA examination in September 2014. He reported having a back injury in January 2014 when he was carrying another person and that, since the injury he has had near constant back pain that occasionally radiated to the left leg. The examiner diagnosed lumbar spine strain with minimal scoliosis and left leg radiculopathy. The examiner found that there was no medical record evidence to indicate the in-service lumbar spine injury was not acute and that it did not resolve without residuals. He further found that there was no medical record evidence to indicate treatment for chronic/ongoing back pain/condition. However, the examiner did not address the Veteran's reports that he had back pain since the in-service back injury. As such, on remand, the Veteran should be provided with another VA examination to determine whether his currently diagnosed back disability had its onset, or is attributable to, active duty. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records beginning in October 2016. 2. Ask the Veteran to complete a VA Form 21-4142 for any private provider who have treated him for his claimed disabilities. Make two requests for the authorized records from each identified provider unless it is clear after the first request that a second request would be futile. 3. The results of the September 2014 pulmonary functioning tests must be interpreted by a pulmonologist. The interpreted results should be added to the claims file. 4. Schedule the Veteran for a VA examination for his bilateral lung condition. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. The examiner is asked to provide an opinion as to whether the Veteran has a bilateral lung disability that is related or attributable to service. In rendering this opinion, the examiner must address the Veteran's reports of shortness of breath and chest pain. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 5. Schedule the Veteran for a VA examination for his sleep apnea. The examiner must review the claims file. The examiner is asked to provide an opinion as to whether the Veteran's sleep apnea is related or attributable to service. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 6. Schedule the Veteran for a VA examination for his back disability. The examiner must review the claims file. The examiner is asked to provide an opinion as to whether the Veteran's back disability is related or attributable to a back injury sustained in January 2014 while in service. (Continued on the next page) Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Harrigan Smith 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.