Citation Nr: 22016243 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 20-25 326 DATE: March 21, 2022 ORDER Entitlement to service connection for a right shoulder condition has been withdrawn; this issue is dismissed. REMANDED Entitlement to service connection for bilateral lower extremity weakness is remanded. Entitlement to service connection for a respiratory condition is remanded. Entitlement to service connection for a right wrist condition is remanded. Entitlement to service connection for a skin condition is remanded. Entitlement to service connection for an acquired psychiatric condition is remanded. FINDING OF FACT In November 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of the claim for a right shoulder condition is requested. CONCLUSION OF LAW The criteria for withdrawal of entitlement to service connection for a right shoulder condition by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1979 to June 1984, from August 1990 to November 1990, and from January 1991 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in November 2020. A transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900. 38 U.S.C. § 7107 (a)(2). 1. Entitlement to service connection for a right shoulder condition The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant, through his/her authorized representative, has withdrawn the claim for a right shoulder condition and, hence, there remain no allegations of errors of fact or law for appellate consideration. The Veteran requested to withdraw his appeal as to the issue of entitlement to service connection for a right shoulder condition at the November 2020 hearing. The Board finds that the statements made at the Board hearing satisfy the Acree and DeLisio criteria as they were explicit, unambiguous and done with a full understanding of the consequences of the withdrawal. DeLisio v. Shinseki, 25 Vet. App. 45, 47 (2011). Thus, there remains no allegations of errors of fact or law for appellate consideration as it relates to this issue. REASONS FOR REMAND 1. Entitlement to service connection for bilateral lower extremity weakness is remanded. The Veteran seeks service connection for bilateral lower extremity weakness. He contends his disability is related to exposure to hazards during the Gulf War. The Veteran was afforded a VA examination in May 2017. The Veteran reported bilateral numbness since 2015. The examiner diagnosed lateral femoral cutaneous nerve compression. The examiner opined the Veteran's conditions were less likely related to Gulf War environmental exposures, because the symptoms developed many years after his return from service. However, the examiner did not provide an explanation for why this was so. Therefore, an addendum opinion is needed. Additionally, the Veteran submitted an April 2021 private medical opinion from Dr. F.G. in support of his claim. Dr. F.G. opined that the Veteran's conditions, to include bilateral lower extremity weakness, could be a part of Gulf War illness. The Board finds this private opinion speculative, as it merely suggests a possibility of a causal relationship and does not provide the degree of certainty required for medical nexus evidence. However, an addendum opinion to address this private opinion is merited. Finally, the Board notes that the June 2021 brief challenged the competency of the May 2017 VA examiner and requested that VA provide the curriculum vitae and other information about qualifications of the examiner. As the Veteran's representative has raised a challenge to the competency of the May 2017 VA examiner, a remand is necessary to obtain information regarding the examiner's qualifications. See Francway v. Wilkie, 930 F.3d 1377 (2019) (holding that once a challenge to an examiner's competency is raised, the presumption of competency is rebutted, and VA must satisfy its burden of persuasion as to the examiner's qualifications and respond to the challenge by providing information about the qualifications of a medical examiner to the veteran). 2. Entitlement to service connection for a respiratory condition is remanded. The Veteran seeks service connection for a respiratory condition. He contends that his respiratory condition is related to environmental exposures in the Persian Gulf during his active duty. The Veteran was afforded a VA examination in May 2017. The Veteran reported rhinorrhea beginning in 2004, which had progressed to asthma. A pulmonary function test (PFT) was ordered, but the Veteran refused testing. The examiner diagnosed asthma. The examiner opined the Veteran's conditions were less likely related to Gulf War environmental exposures, because the symptoms developed many years after his return from service. However, the examiner did not provide an explanation for why this was so. Therefore, an addendum opinion is needed. Additionally, the Veteran submitted an April 2021 private medical opinion from Dr. F.G. in support of his claim. Dr. F.G. diagnosed chronic bronchitis and COPD with a PFT confirming COPD. He opined that the Veteran's conditions, to include a respiratory disability, could be a part of Gulf War illness. He indicated the Veteran was exposed to burning oil fields and burn pits which both produce powerful toxicants through incomplete combustion. The Board finds this private opinion speculative, as it merely suggests a possibility of a causal relationship and does not provide the degree of certainty required for medical nexus evidence. However, an addendum opinion to address this private opinion is merited. Finally, the Board notes that the June 2021 brief challenged the competency of the May 2017 VA examiner and requested that VA provide the curriculum vitae and other information about qualifications of the examiner. As the Veteran's representative has raised a challenge to the competency of the May 2017 VA examiner, a remand is necessary to obtain information regarding the examiner's qualifications. See Francway v. Wilkie, 930 F.3d 1377 (2019) (holding that once a challenge to an examiner's competency is raised, the presumption of competency is rebutted, and VA must satisfy its burden of persuasion as to the examiner's qualifications and respond to the challenge by providing information about the qualifications of a medical examiner to the veteran). 3. Entitlement to service connection for a right wrist condition is remanded. The Veteran seeks service connection for a right wrist condition. He contends that his right wrist condition is related to active service. The Veteran was afforded a VA examination in May 2017. The Veteran reported right wrist pain, which he related to Shigella virus during active service. The examiner diagnosed right wrist sprain. The examiner opined the Veteran's conditions were less likely related to Gulf War environmental exposures, because the symptoms developed many years after his return from service. However, the examiner did not provide an explanation for why this was so. Therefore, an addendum opinion is needed. Additionally, the Veteran submitted an April 2021 private medical opinion from Dr. F.G. in support of his claim. Dr. F.G. opined that the Veteran's conditions, to include a right wrist disability, could be a part of Gulf War illness. He stated that additional orthopedic conditions were present by reason of mechanical trauma and repetitive motion exposure during military service, and that the chronic wrist pain was also present with peripheral neuropathy that again could be related to toxic exposures. The Board finds this private opinion speculative, as it merely suggests a possibility of a causal relationship and does not provide the degree of certainty required for medical nexus evidence. However, an addendum opinion to address this private opinion is merited. Finally, the Board notes that the June 2021 brief challenged the competency of the May 2017 VA examiner and requested that VA provide the curriculum vitae and other information about qualifications of the examiner. As the Veteran's representative has raised a challenge to the competency of the May 2017 VA examiner, a remand is necessary to obtain information regarding the examiner's qualifications. See Francway v. Wilkie, 930 F.3d 1377 (2019) (holding that once a challenge to an examiner's competency is raised, the presumption of competency is rebutted, and VA must satisfy its burden of persuasion as to the examiner's qualifications and respond to the challenge by providing information about the qualifications of a medical examiner to the veteran). 4. Entitlement to service connection for a skin condition is remanded. The Veteran seeks service connection for a skin condition. The Veteran was afforded a VA examination in May 2017. The Veteran reported a rash, which he related to mold exposure at his current and prior homes. He stated the rash was only present while at home. The examiner did not provide a clinical diagnosis. The examiner opined the Veteran's conditions were less likely related to Gulf War environmental exposures, because the symptoms developed many years after his return from service. However, the examiner did not provide an explanation for why this was so. Therefore, an addendum opinion is needed. Additionally, the Veteran submitted an April 2021 private medical opinion from Dr. F.G. in support of his claim. Dr. F.G. diagnosed chronic bronchitis and COPD with a PFT confirming COPD. He opined that the Veteran's conditions, to include a skin disability, could be a part of Gulf War illness. He indicated the Veteran had also self-treated his other service-connected conditions with colloidal silver and developed a systemic skin reaction, which the Board notes is diagnosed in the underlying VA treatment records as argyria. The Board finds this private opinion speculative, as it merely suggests a possibility of a causal relationship and does not provide the degree of certainty required for medical nexus evidence. However, an addendum opinion to address this private opinion is merited. Additionally, the Board notes that the June 2021 brief challenged the competency of the May 2017 VA examiner and requested that VA provide the curriculum vitae and other information about qualifications of the examiner. As the Veteran's representative has raised a challenge to the competency of the May 2017 VA examiner, a remand is necessary to obtain information regarding the examiner's qualifications. See Francway v. Wilkie, 930 F.3d 1377 (2019) (holding that once a challenge to an examiner's competency is raised, the presumption of competency is rebutted, and VA must satisfy its burden of persuasion as to the examiner's qualifications and respond to the challenge by providing information about the qualifications of a medical examiner to the veteran). 5. Entitlement to service connection for an acquired psychiatric condition is remanded. The Veteran seeks service connection for an acquired psychiatric disorder. He contends that his psychiatric disorder is related to dealing with stressful military experiences. He reports nightmares about plane crashes since returning home from the Gulf War. The Veteran was afforded a VA examination in May 2017. The examiner opined the Veteran's psychiatric disorder is less likely related to service. He explained that the Veteran's financial, housing and mold issues, and marital problems were likely triggering or maintaining his current anxiety. The Veteran was afforded a VA examination in November 2019. The examiner diagnosed PTSD. He opined that the Veteran's symptoms appeared to originate from his traumas of joining a cult in 2003 and losing a child. The Veteran submitted a June 2021 medical opinion from Dr. R.W. in support of his claim. He noted that the Veteran marked "yes" for a history of depression and excess worry in September 1978 and January 1980. Dr. R.W. opined that the Veteran's psychiatric disorder, diagnosed as major depressive disorder with anxious distress and psychotic features and posttraumatic stress disorder (PTSD) at least as likely as not began in military service and continued to persist in severity and symptoms through the present. The November 2019 favorable private opinion is somewhat conclusory in nature, and does not clearly discuss or address the noted intervening stressors in the record identified by the VA examiners. However, an addendum opinion to address this private opinion is merited. Finally, because a decision on the remanded issues of bilateral lower extremity weakness, a respiratory condition, a right wrist condition, and a skin condition, as potentially undiagnosed illnesses or medically unexplained chronic multisymptom illnesses, could significantly impact a decision on the issue of an acquired psychiatric disorder, the issues are inextricably intertwined. A remand of the claims for an acquired psychiatric disorder is required. The matters are REMANDED for the following action: 1. Contact the examiner who performed the May 2017 VA examination that evaluated lower extremity weakness, a respiratory condition, skin condition, and right wrist condition, and request that they provide a copy of their resume/CV and any other available information regarding his qualifications, in particular as they relate to the Veteran's disabilities. Upon receipt, associate the documents with the record and provide the Veteran and his representative with a copy. If the requested resume/CV is not obtainable, the Veteran and his representative should be notified and the reasons for such should be documented in the record. 2. Obtain an addendum opinion from the May 2017 examiner, or another appropriate clinician if the examiner is unavailable, regarding the Veteran's claimed lower extremity weakness. The claims file, and a copy of this Remand, must be reviewed by the examiner. The examiner must opine whether the Veteran's previous reports of lower leg weakness and/or numbness were attributable to a known clinical diagnosis, and if so, whether it is at least as likely as not that the diagnosis is related to service. If the Veteran's previous reports of lower leg weakness were not attributable to a known clinical diagnosis, the examiner must opine whether it is at least as likely as not that the reported symptoms were manifestations of an undiagnosed illness or part of a medically unexplained multi-symptom illness under 38 C.F.R. § 3.317. A complete rationale for all opinions must be provided. The examiner should address the private medical opinion offered by Dr. F.G. 3. Obtain an addendum opinion from the May 2017 examiner, or another appropriate clinician if the examiner is unavailable, regarding the Veteran's claimed respiratory condition. The claims file, and a copy of this Remand, must be reviewed by the examiner. The examiner must opine whether the Veteran's previous reports of shortness of breath were attributable to a known clinical diagnosis, and if so, whether it is at least as likely as not that the diagnosis is related to service. If the Veteran's previous reports of shortness of breath were not attributable to a known clinical diagnosis, the examiner must opine whether it is at least as likely as not that the reported symptoms were manifestations of an undiagnosed illness or part of a medically unexplained multi-symptom illness under 38 C.F.R. § 3.317. A complete rationale for all opinions must be provided. The examiner should address the private medical opinion offered by Dr. F.G. 4. Obtain an addendum opinion from the May 2017 examiner, or another appropriate clinician if the examiner is unavailable, regarding the Veteran's claimed respiratory condition. The claims file, and a copy of this Remand, must be reviewed by the examiner. The examiner must opine whether the Veteran's previous reports of right wrist pain were attributable to a known clinical diagnosis, and if so, whether it is at least as likely as not that the diagnosis is related to service. If the Veteran's previous reports of wrist pain were not attributable to a known clinical diagnosis, the examiner must opine whether it is at least as likely as not that the reported symptoms were manifestations of an undiagnosed illness or part of a medically unexplained multi-symptom illness under 38 C.F.R. § 3.317. A complete rationale for all opinions must be provided. The examiner should address the private medical opinion offered by Dr. F.G. 5. Obtain an addendum opinion from the May 2017 examiner, or another appropriate clinician if the examiner is unavailable, regarding the Veteran's claimed respiratory condition. The claims file, and a copy of this Remand, must be reviewed by the examiner. The examiner must opine whether the Veteran's previous reports of a skin rash were attributable to a known clinical diagnosis, and if so, whether it is at least as likely as not that the diagnosis is related to service. If the Veteran's previous reports of a skin rash were not attributable to a known clinical diagnosis, the examiner must opine whether it is at least as likely as not that the reported symptoms were manifestations of an undiagnosed illness or part of a medically unexplained multi-symptom illness under 38 C.F.R. § 3.317. A complete rationale for all opinions must be provided. The examiner should address the private medical opinion offered by Dr. F.G. 6. Obtain an addendum opinion from the November 2019 examiner, or another appropriate clinician if the examiner is unavailable, regarding the Veteran's claimed acquired psychiatric condition. The claims file, and a copy of this Remand, must be reviewed by the examiner. The examiner must opine whether the Veteran's psychiatric symptoms attributable to a known clinical diagnosis, and if so, whether it is at least as likely as not that the diagnosis is related to service. (Continued on the next page) If the Veteran's previous reports were not attributable to a known clinical diagnosis, the examiner must opine whether it is at least as likely as not that the reported symptoms were manifestations of an undiagnosed illness or part of a medically unexplained multi-symptom illness under 38 C.F.R. § 3.317. A complete rationale for all opinions must be provided. The examiner should address the private medical opinion offered by Dr. R.W. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Lauritzen, 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.