Citation Nr: 22014845 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 17-14 069 DATE: March 15, 2022 ORDER Entitlement to service connection for Fordyce's granules of the lips (claimed as lip papules) is granted. Entitlement to service connection for a joint disability manifested by pain in the bilateral shoulders is denied. REMANDED Entitlement to a disability rating in excess of 30 percent prior to April 3, 2020, and in excess 70 percent, thereafter, for PTSD is remanded. Entitlement to service connection for sleep apnea, as secondary to service-connected PTSD is remanded. Entitlement to service connection for a joint disability manifested by pain in the bilateral hands and fingers is remanded. Entitlement to service connection for a joint disability manifested by pain in the bilateral elbows is remanded. Entitlement to service connection for a joint disability manifested by pain in the bilateral knees is remanded. Entitlement to service connection for a respiratory disability, to include pneumonia, sinusitis and bronchitis, is remanded. FINDINGS OF FACT 1. The evidence of record demonstrates that the Veteran has a current diagnosis of Fordyce's granules that had onset during his period of active duty service. 2. The evidence of record weighs persuasively against a finding that the Veteran has a current disability of the shoulders, for VA purposes. CONCLUSIONS OF LAW 1. The criteria for the award of service connection for Fordyce's granules (claimed as lip papules) have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for the award of service connection for a joint disability manifested by pain in the bilateral shoulders have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1988 to June 1992. He testified at a Board videoconference hearing before the undersigned in May 2019. A transcript of the hearing is of record. These issues were previously before the Board in February 2020, at which time they were remanded for further development. As discussed in the remand section below, additional treatment records were added ot the claims file after the agency of original jurisdiction (AOJ) last adjudicated the appeal. These records, however, do not contain relevant information pertaining to the two issues decided hereinnamely the Fordyce's Granules and shoulder condition service-connection claims. As such, there is no prejudice in proceeding with adjudicating these two issues at this time. Service Connection Fordyce's Granules Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303(d). In this case, the Veteran contends that he developed lip papules that first manifested on his lips while serving on active duty, upon return from service in the Persian Gulf. The evidence confirms that the Veteran has a diagnosis of Fordyce's granules affecting his lips, and this is indeed the same condition that was noted in service records, on May 14, 1992 (small white bumps on inside of upper lip of unknown etiology). See the September 2020 examiner's report (diagnosing Fordyce's granules with onset during service). Although September 2020 examiner opined against a relationship between the development of this condition and any in-service injury or exposure, the examiner did place the onset of the condition during service. As such, regardless of the cause, in-service onset is shown by the record, and service-connection may be awarded on that basis. The benefit sought on appeal is accordingly granted. Service Connection Joint Pain of Bilateral Shoulders At his hearing before the Board, the Veteran testified that at times he experiences pain in various joints, to include specifically the shoulders, and asserts that such may be manifestations of a disability that is related to service. Additional evidentiary development is required before an informed decision can be made as to whether service connection may be awarded for disabilities manifesting in joint pain of the hands, fingers, elbows and knees, and such is discussed in more detail in the Remand section below. However, there is sufficient evidence at this time to adjudicate the claim as it pertains to the bilateral shoulders. Following the Board hearing, the Board remanded the Veteran's appeal so that a shoulder examination could be scheduled, and so the nature and etiology of any current shoulder disability may be explored. In April 2020, the Veteran appeared for a shoulder and arm examination. The examiner reviewed the Veteran's file and performed an examination, specifically noting that the Veteran had a normal evaluation of the shoulders. In addition, the examiner relayed that the Veteran denied any shoulder pain symptoms, or any functional loss or functional impairment of either shoulder joint. Range of motion testing was full, without pain. The Veteran stated he did not have shoulder symptoms or a condition, and also denied any history of shoulder injury or symptoms. No objective evidence of disability was shown on examination either. In this case, even when considering that a disability exists for VA purposes where pain causes functional impairment of earning capacity (see Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018)), the evidence weighs against a finding that any current disability of the shoulders exists. Indeed, while the Veteran recalled experiencing shoulder pain at times during the Board hearing, he specifically denied a history of symptoms or impairments at the April 2020 examination. Crucially, there was no indication that, even if pain was present, it was so severe as to cause functional impairment of either joint. For this reason, the Board concludes that the evidence is against a finding that a current bilateral shoulder disability exists for VA purposes. Without a disability, service-connection may not be granted on either a direct or presumptive basis. To this extent, the appeal is denied. (Continued on Next Page) REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 30 percent prior to April 3, 2020, and in excess 70 percent, thereafter, for PTSD is remanded. 2. Entitlement to service connection for sleep apnea, as secondary to service-connected PTSD, is remanded. VA treatment records relevant to the Veteran's mental health symptoms (and in turn, his sleep apnea claimed as secondary to mental health symptoms) dated through March 2021 were associated with the claims file after issuance of the April 2021 Supplemental Statement of the Case (SSOC). In September 2021, the Board sent the Veteran correspondence asking whether he would like to have issues on appeal remanded to the AOJ for review of this evidence in the first instance, or whether he wished to waive AOJ initial review. He was provided 45 days to respond, and if no response was received, then it would be assumed that the Veteran would like this evidence reviewed by the AOJ in the first instance. Thus, as the Veteran did not provide a response to the September 2021 correspondence, a remand of his PTSD and sleep apnea claim is required so that an SSOC may be issued after review of all the evidence of record. 3. Entitlement to service connection for a joint disability manifested by pain in the bilateral hands and fingers is remanded. 4. Entitlement to service connection for a joint disability manifested by pain in the bilateral elbows is remanded. 5. Entitlement to service connection for a joint disability manifested by pain in the bilateral knees is remanded. In its February 2020 decision, the Board directed the AOJ to schedule the Veteran for an examination to address the nature and etiology of the Veteran's claimed joint pain disabilities. The examiner was asked to identify all disabilities manifesting in joint pain particularly in the elbows, knees, and fingers and reminded that a disability exists for VA purposes even if pain symptoms cannot be attributed to an actual diagnosis, when such pain symptoms manifest in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment.) For each disability identified, the examiner was asked to provide an opinion as to whether the disability had onset in or was otherwise related to the Veteran's period of active service, to include rigors of exercise/training as well as Gulf War service/hazardous exposures. Hands, Fingers, and Elbows In April 2020, the Veteran underwent examination. He reported pain, numbness and tingling in his bilateral hands and fingers, as well as his bilateral elbows. The Veteran endorsed muscle spasms of the left hand and popping and locking of his elbows. Upon examination, the examiner indicated that imaging revealed normal joints and extremities with no objective pain or symptoms. The examiner opined that the Veteran's bilateral hands and fingers, as well as his bilateral elbow condition were less likely than not incurred in or related to service. The examiner noted that the Veteran's reports of numbness and tingling were consistent with a possible peripheral nerve condition rather than the joints themselves and that the Veteran's post-service work as an aircraft mechanic predisposed him to peripheral nerve conditions such as carpal tunnel. However, the examiner did not address the Veteran's reports of muscle spasms and popping and locking of the joints nor did he indicate whether the nerve condition had onset in or is otherwise related to his active-duty service, including the rigors of exercise/training and Gulf War hazardous exposure. On remand, the Veteran should be afforded another examination and an opinion should be obtained that adequately identifies all disabilities of the hands, fingers, and elbows and whether the identified disabilities had onset in or is otherwise related to his active-duty service, including the rigors of exercise/training and Gulf War hazardous exposure. Knees Upon VA examination in April 2020, the Veteran was diagnosed with bilateral patellofemoral pain syndrome, and the examiner opined that such was less likely than not due to the Veteran's active-duty service. The examiner stated that there was no objective evidence of a bilateral knee condition or symptoms during active service and that the history of onset during service was subjective only. Further, the examiner stated that there was no evidence of chronicity of care during or post service. The Board finds this opinion inadequate, as the examiner appeared to rely largely on a lack of documented contemporaneous treatment, and did not adequately discuss the Veteran's lay statements concerning the onset and continuity of pain. Further, the examiner did not provide any explanation as to the significance of the lack of documented treatment and how it may impact consideration of the Veteran's lay statements. On remand, the Veteran should be afforded another VA examination and an opinion should be obtained that adequately addresses whether the Veteran's bilateral patellofemoral pain syndrome had onset in or is otherwise related to his active-duty service, including the rigors of exercise/training and Gulf War hazardous exposure 6. Entitlement to service connection for a respiratory disability, to include pneumonia, sinusitis, and bronchitis, is remanded. The Board notes that VA has amended its regulations to establish presumptive service connection for three chronic respiratory conditions (i.e., asthma, rhinitis, and sinusitis, to include rhinosinusitis) in association with presumed in-service exposures to fine, particulate matter. Presumptive service connection shall be granted if the chronic respiratory condition becomes manifest to any degree within 10 years from the date of separation from a qualifying period of service. These presumptions would apply to veterans with qualifying service in the Southwest Asia theater of operations beginning August 2, 1990 to present, as well as Afghanistan, Syria, Djibouti, or Uzbekistan on or after September 19, 2001. See 38 C.F.R. § 3.320; see also 38 C.F.R. §§ 3.2(i), 3.317(e)(2). During the May 2019 hearing, the Veteran identified relevant outstanding private treatment records from Dr. M.C. regarding treatment of his respiratory disabilities. The Veteran was afforded an opportunity after the February 2020 Board decision to authorize VA to obtain these records; however, he did not respond to the AOJ's February 2020 correspondence. On remand, the Veteran should be afforded another opportunity to submit these records, or to provide VA with the authorization to obtain these records. The Veteran was variously diagnosed with upper respiratory infection, pneumonia, bronchitis, sinusitis and allergic rhinitis during active duty. See April 2020 VA Medical Opinion; see also May 1992 Report of Medical History. VA treatment records indicate that the Veteran has been diagnosed with sinusitis, bronchitis, pneumonia, and seasonal allergic rhinitis post service. See id. In its February 2020 decision, the Board directed the AOJ to afford the Veteran another examination so that the nature and etiology of any current respiratory disability could be explored. Upon examination in April 2020, the examiner offered contradictory findings, noting at first that the Veteran did not have, nor did he ever have a respiratory condition. However, other parts of the report and in the medical opinion, references were made to prior assessments of bronchitis and other conditions deemed "acute." He also indicated that the Veteran had "other pulmonary condition" but did not complete the parts of the examination report form to identify this condition. PFT testing was unable to be completed due to Covid-19 procedures. He concluded that, based upon examination, there was no evidence of a chronic respiratory condition. Contrastingly however, the examiner also stated that given the history of the Veteran's symptoms which began in-service, that the Veteran's acute respiratory conditions were at least as likely as not an undiagnosed illness. Following the April 2020 examination, the AOJ sought another medical opinion as it determined the April 2020 medical opinion to be contradictory and confusing. The Veteran again underwent examination in April 2021. Upon examination, the examiner indicated that the Veteran had an "other pulmonary condition" but again did not complete the parts of the examination report form to identify this condition. PFT testing was also unable to be completed due to Covid-19 procedures. The VA examiner opined that the Veteran's claimed respiratory disability was less likely than not incurred in or caused by service. By way of rationale, the examiner indicated that the Veteran only had acute respiratory disabilities during service but that since separation he has not had any diagnosis of or treatment for a chronic respiratory condition. She stated that there was no evidence of chronicity of care and that the Veteran's symptoms were subjective only. However, the VA examiner failed to acknowledge or discuss the Veteran's numerous respiratory diagnoses, acute or otherwise, post-service, nor did she discuss the April 2020 VA examiner's findings that the Veteran's acute respiratory conditions were at least as likely as not manifestations of an undiagnosed illness. She also relied on the fact that the Veteran was not currently exhibiting symptoms of a respiratory disability to conclude that no respiratory condition existed. Based on the foregoing, the Board finds both the April 2020 and April 2021 examinations inadequate for adjudication purposes. Remand is warranted so that an adequate opinion, with all necessary testing, may be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to submit, or authorize VA to obtain on his behalf, any relevant private treatment records pertaining to the disabilities discussed above, including records from Dr M.C. All appropriate efforts should be taken to secure identified records. 2. Schedule the Veteran for an appropriate examination or examinations to address the nature and etiology of the Veteran's claimed bilateral hand and finger, bilateral elbow, and bilateral knees joint pain disabilities. The examiner should review the Veteran's medical history, and also take a history from the Veteran as to the progression of his joint pain symptoms. After review of the record, interview, and examination of the Veteran, the examiner should respond to each of the following: (a.) Please identify all disabilities manifesting in joint pain particularly in the elbows, knees, fingers and hands, including those identified by the April 2020 VA Examiner (a possible peripheral nerve disability and bilateral patellofemoral pain syndrome.) The examiner should note that a disability exists for VA purposes even if pain symptoms cannot be attributed to an actual diagnosis, when such pain symptoms manifest in functional impairment. (b.) For each orthopedic or neurological disability identified, is it at least as likely as not (approximately 50 percent or greater probability) that such had onset in, or is otherwise related to the Veteran's period of active duty service, to include rigors of exercise/training as well as Gulf War service/hazardous exposures? (c.) The examiner should discuss whether the Veteran has symptoms that are manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness, to include fibromyalgia. The examiner's opinions must reflect consideration of the Veteran's lay statements regarding onset of symptomatology. All opinions should be supported by a medical explanation or rationale. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any respiratory disability. The examiner should review the Veteran's medical history, and also take a history from the Veteran as to the progression of his respiratory symptoms. If the Veteran is not currently exhibiting respiratory symptoms, the examiner should discuss prior historical symptoms during the appellate period. After review of the record, interview, and examination of the Veteran, the examiner should respond to each of the following: (a.) Please identify all current respiratory disabilities, to include those that may have resolved during the period under review from 2011 to the present. If no disability exists, please reconcile this finding with other evidence of record showing treatment for respiratory symptoms. (b.) For each identified respiratory disability, please indicate whether it at least as likely as not (approximately 50 percent or greater probability) that such had onset in, or is otherwise related to the Veteran's period of active duty service, to include due to Gulf War service/hazardous exposures? (c.) In particular, does the Veteran have a diagnosis of rhinitis, sinusitis or asthma that had onset within 10 years of discharge in June 1992? (d.) The examiner should also discuss whether the Veteran has symptoms that are manifestations of an undiagnosed illness or medically unexplained chronic multi-symptom illness. All opinions should be supported by a medical explanation or rationale. (Continued on Next Page) 4. After the above development has been completed, readjudicate all issues on appeal following review of the complete record. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bristow Williams, 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.