Citation Nr: 24006167 Decision Date: 02/05/24 Archive Date: 02/05/24 DOCKET NO. 20-15 943 DATE: February 5, 2024 ORDER The claim for entitlement to service connection for a psychiatric disability, to include personality disorder, is dismissed as moot. REMANDED Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for a urinary tract infection (UTI) is remanded. Entitlement to service connection for a lymph node disease is remanded. Entitlement to service connection for granulomatous disease is remanded. Entitlement to service connection for an eye disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to a compensable rating for sinusitis prior to April 25, 2018, and in excess of a 10 percent rating thereafter, is remanded. Entitlement to a rating in excess of 30 percent for allergic rhinitis is remanded. Entitlement to a rating in excess of 20 percent for left knee instability is remanded. Entitlement to a rating in excess of 10 percent for left knee anterior cruciate ligament (ACL) tear with osteoarthritis is remanded. Entitlement to service connection for a compensable rating for headaches is remanded. FINDING OF FACT The Veteran sought service connection for a psychiatric disorder, to include, inter alia, posttraumatic stress disorder (PTSD) and a personality disorder; an October 2023 rating decision granted service connection for PTSD with unspecified personality disorder with paranoid traits; therefore, as the benefit sought on appeal has been granted in full by the October 2023 rating decision, there remains no controversy on appeal for the Board's consideration. CONCLUSION OF LAW As there are no remaining questions of law or fact following, claim for service connection for a psychiatric disorder, to include PTSD and a personality disorder, is moot. 38 U.S.C. § 7105(d); 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1986 to May 1999, to include service in the Southwest Asia theater of operations. VA has conceded the Veteran participated in a Toxic Exposure Risk Activity (TERA). These matters come before the Board of Veterans' Appeals (Board) on appeal of March 2018 and September 2018 rating decisions issued by a Department of Veterans Affairs (VA) regional office (RO), an agency of original jurisdiction (AOJ). The Board notes that in a September 2017 rating decision, the Veteran was awarded a total disability evaluation based on individual unemployability due to her service-connected disabilities (TDIU) and determined to be permanently and totally disabled effective December 23, 2015. It is further noted that the Veteran initially filed a claim for entitlement to service connection for a low back disability in December 2015 and service connection for lumbosacral strain was denied in a July 2016 rating decision. Subsequently, in April 2017, the Veteran filed a claim for entitlement to service connection for a back disability, to include scoliosis, and the claim was denied in June 2017. The claim for service connection for low back strain (claimed as back condition to include scoliosis) was also denied in rating decisions issued in March 2018 and September 2018. The Board finds that the June 2017, March 2018, and September 2018 rating decisions had not become final because evidence was received within the one-year period relating back to the date of the prior claim. As such, the rating decisions as to service connection for a low back disability, to include the claim for a back condition, were reconsiderations of the prior determinations rather than reopening; thus, new and material evidence is not required in this instance and the issue is one of direct service connection for a lumbar spine disability. 38 C.F.R. § 3.156(b). During the pendency of the appeal, in a September 2018 rating decision, the AOJ increased the Veteran's sinusitis to 10 percent disabling effective April 25, 2018. Therefore, the issue of entitlement to an increased rating for sinusitis has been reframed to reflect a staged rating as reflected on the cover page of this decision. Lastly, while the appeal was pending at the Board, the Veteran filed a VA Form 20-0995 Supplemental Claim Application in August 2023, requesting AOJ review of the March 2018 rating decision on appeal, which, in relevant part, denied service connection for hypertension. In connection with the supplemental claim, VA obtained a hypertension examination and medical opinion in September 2023 (signed October 2023), to include whether the Veteran's diagnosed hypertension is etiologically related to her in-service toxic exposure risk activities (TERA). The claim for entitlement to service connection for hypertension was denied in a spurious November 2023 rating decision wherein the AOJ found that new and relevant evidence had been received to reconsider the claim and denied the claim based on the negative nexus opinion rendered by the September 2023 VA examiner. Upon review, the Veteran has not expressed any desire to withdraw her appeal for hypertension, which is properly before the Board. Accordingly, the issue of entitlement to service connection for hypertension is properly before the Board. See 38 C.F.R. § 3.2500(e). Moreover, with respect to the September 2023 VA-obtained hypertension examination report, when relevant evidence is submitted to the AOJ after a Statement of the Case (SOC) is issued, but prior to certification to the Board, a Supplemental Statement of the Case (SSOC) is required to address the evidence. 38 C.F.R. § 19.31(b). After certification to the Board, such evidence must be referred back to the AOJ for initial review, unless the veteran or her representative waives this right, or when the benefit being sought is allowed in full by the Board. 38 C.F.R. § 20.1305. In this case, although no waiver was obtained or submitted by the Veteran or her representative, the AOJ will have the opportunity to review the additional, relevant evidence on remand. In April 2022, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). The Veteran was unrepresented at the proceeding. A transcript of the hearing is associated with the record. Dismissal Entitlement to service connection for a personality disorder is dismissed. The Board has jurisdiction in all matters where there is a question of law or fact necessary for a decision by the Secretary of Veterans Affairs under a law that affects the provision of benefits by the Secretary to veterans or their dependents or survivors. 38 U.S.C. § 7105(d); 38 C.F.R. § 19.44. The Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. Personality disorders are considered congenital or developmental defects for which service connection cannot be granted. However, service connection can still be granted for additional disability that was superimposed over the personality disorder during service. Service connection may be granted for an additional disability that results from the personality disorder being subject to, or aggravated by, a superimposed injury or disease during service. Winn v. Brown, 8 Vet. App. 510, 516 (1996); Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004); 38 C.F.R. §§ 3.303 (c), 4.9, 4.127. During the pendency of the appeal, a special review under the direction of the Office of the Inspector General was conducted. Based on the results of this review, an October 2023 rating decision granted service connection for PTSD with unspecified personality disorder with paranoid traits and assigned an initial 30 percent evaluation from December 23, 2015, and a 50 percent evaluation from October 9, 2023. Generally, a claim for service connection may be expanded beyond a veteran's lay description of a disability to include any disability "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Upon close review of the competent evidence of record, the Board concludes that the October 2023 AOJ rating decision represents a full grant of the benefit sought on appeal and there remains no controversy for the Board to consider. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Here, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Therefore, the Board finds that the October 2023 rating decision's grant of service connection for PTSD with unspecified personality disorder with paranoid traits contemplates the scope of the claim received by VA in this appeal, including the issue of entitlement to service connection for a personality disorder, and there are no other signs or symptoms of psychiatric disability that remain pending for appellate consideration. Accordingly, the appeal is dismissed. REASONS FOR REMAND In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (the duty to assist requires an examiner to "address the veteran's lay statements to provide the Board with an adequate opinion," in part because "medical opinions can inform credibility findings"); and Smith v. Wilkie, 32 Vet. App. 332 (2020) ("medical opinions can inform credibility findings" and VA's duty to assist may require a "medical examination before assessing the credibility of lay evidence."). Additionally, during the pendency of the appeal, the Sergeant First Class (SFC) Heath Robinson Honoring our Promise to Address Comprehensive Toxins (PACT) Act was signed into law on August 10, 2022. The PACT Act created new VA examination requirements where toxic exposure risk activities are implicated. See 38 U.S.C. § 1168(a). Here, the Veteran's claims file contains an August 2023 VA TERA Memorandum confirming toxic exposure in the Southwest Asia theater of operations. See 38 U.S.C. § 1119; 38 C.F.R. § 3.317(e)(2). Accordingly, the Board finds that on remand, TERA opinions should be obtained for the issues of service connection for a heart disability, UTI, lymph node disability, granulomatous disease and eye disability. See 38 U.S.C. § 1168(a). Entitlement to service connection for a heart disability is remanded. The Veteran contends that her heart disability is related to service. The Veteran's service treatment records (STRs) include a September 1994 Report of Medical History (ROMH) for retention purposes reflect the Veteran checked off that she did not know whether she had or has had high blood pressure and checked off that she had experienced pain in her chest. STRs also show the Veteran complained of shortness of breath on exertion in October 1988 and a chest x-ray revealed normal appearance of the heart, great vessels, hilar structures, lung fields and bony thorax. In October 1994, the Veteran reported experiencing an increased heart rate on occasion. A September 2017 VA heart catheterization report reveals the Veteran has nonobstructive coronary artery disease (CAD). The Veteran has not been afforded a VA examination in connection with her claim. Remand is warranted to determine whether the Veteran has a heart disability that is related to service. McLendon v. Nicholson, 20 Vet. App. 79 (2006) (a VA examination and/or opinion is warranted when there is an indication in the record that a current disability is related to military service). The Board also finds that a TERA specific opinion should be obtained on remand in compliance with 38 U.S.C. § 1168(a). Entitlement to service connection for UTI is remanded. The Veteran contends that she developed UTIs during service. The Veteran's STRs show the Veteran was assessed with an abnormal pap smear/yeast infection/vaginitis in August 1996. A September 1994 Desert Storm Evaluation includes a urinalysis which showed abundant squamous epithelial cells, light mucus, trace bacteria. An April 2023 VA treatment record shows the Veteran complained of stomach pain, dehydration and gross hematuria. The Veteran has not been afforded a VA examination in connection with her claim. Remand is warranted to determine whether the Veteran has a urinary tract disorder that had its onset in service or is otherwise related to service, including a TERA. Entitlement to service connection for lymph node disease is remanded. The Veteran contends that she has disease of the lymph nodes that began during service. The Veteran testified that she was found to have swollen, painful lymph nodes underneath her arm on examination after she returned from her deployment from the Southwest Asia in 1991. The Veteran's STRs show that in June 1991, she was seen for complaints of soreness under her right arm pit for seven months. The Veteran reported she had a small lump that moved and was painful to the touch. In October 1998, she sought medical treatment for a round, hard mass, measuring 4cm in diameter, located in her right armpit. The Veteran stated that she had soreness in her right underarm area for 13 years, but the mass grew in size over the previous week. The Veteran was prescribed Keflex and hot compresses. The Veteran has not been afforded a VA examination in connection with her claim. Remand is warranted to determine whether the Veteran has a lymph node disorder that had its onset in service or is otherwise related to service, including a TERA. Entitlement to service connection for granulomatous disease is remanded. The Veteran claims service connection for granulomatous disease. The Veteran's STRs include a Desert Storm Evaluation, dated September 1994, with complete blood count showing low neutrophils, low white blood cell count, low red blood cell count, high left shift, high monocytes, and high erythrocyte sedimentation rate (ESR). An August 2017 VA chest x-ray revealed densely calcified mediastinal and hilar nodes related to old granulomatous disease. A February 2020 VA treatment record indicated old granulomatous disease in 1999. The clinician described it as "something in lungs and sinuses similar to aspergillosis." The Veteran has not been afforded a VA examination in connection with her claim. Remand is warranted to determine whether the Veteran has granulomatous disease that had its onset in service or is otherwise related to service, including a TERA. Entitlement to service connection for an eye disability is remanded. The Veteran contends that she has current eye disability stemming from a personal in-service assault. The Veteran testified that she was told by a private physician (Dr. R.R.) that her current right eye condition was related to having been punched in that eye over 20 years ago. The Veteran's STRs show that in November 1985, the Veteran received emergency care after she was punched in the right eye by a man. The Veteran was also seen for complaints of blurry vision. The Veteran was afforded a VA eye examination in April 2017 and was diagnosed with retinal pigment epithelial detachment, non-cystic, right eye. The associated medical opinion concluded the Veteran's eye disability was not due to a thyroid condition, including Graves disease and was less likely than not proximately due to or the result of service-connected allergic rhinitis. The Board notes that there is no opinion of record addressing the Veteran's contention that her eye disability is related to the November 1985 right eye injury stemming from a personal assault. The Veteran has not been afforded a VA examination in connection with her claim based on the above contention. Remand is warranted to determine whether the Veteran has any eye disability that had its onset in service or is otherwise related to service, including a TERA. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran contends that her low back disability is due to the long hours of standing required to perform her occupational duties as a food service specialist. At her hearing, she testified that her back pain began in the 1990s as a result of working in a dining facility, standing for 10-12 hours, along with running and marching. The Veteran's STRs include a September 1994 Report of Medical History (ROMH) for retention purposes reflecting the Veteran checked off recurrent back pain and reported recent onset of backaches without a known cause. The Veteran was afforded a VA lumbar spine examination in June 2016 and was diagnosed with lumbosacral strain. The Veteran reported that her low back pain began while working as a food service cook and indicated that although she was not treated in service for the pain, it continued after service separation. The associated medical opinion concluded that the current low back disability was less likely than not incurred in service because there was an absence of medical evidence documenting ongoing back problems in the many years since service discharge. The opinion included a caveat that if the Veteran were to submit such evidence, the opinion could be revisited. Private medical records, dated after the VA examination, include a September 2017 lumbar spine CT report showing findings of lumbar disc degeneration, stenosis, bulging discs, and degenerative changes. During an October 2016 VA clinic visit, the Veteran reported a history of low back pain since 1996 when she was standing for 15 to 16 hours per day for work. Similarly, a February 2020 VA treatment record shows the Veteran reported back pain onset in the 1990s that has persisted for the last 20 years. The Board finds the June 2016 VA medical opinion is inadequate for adjudicative purposes for a number of reasons. The negative opinion is predicated on the absence of documented medical treatment after service separation without consideration of the Veteran's reported history of onset of low back symptoms due to her military occupational duties as a food specialist, and does not take into account the Veteran's complaints of ongoing low back pain since service. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate."). As to the rationale's reliance on the lack of medical evidence establishing post-service treatment for a low back condition, the opinion improperly relied on the absence of "treatment" for the claimed condition in the years after service. However, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. The relevant inquiry involves the continuity of symptoms, not treatment. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). Accordingly, the Board finds that remand is necessary to obtain a new examination and opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Entitlement to service connection for hypertension is remanded. The Board finds that remand is warranted as entitlement to service connection for hypertension is inextricably intertwined with the claim for entitlement to service connection for a heart disability; the resolution of that claim could have a significant impact on a determination of whether the Veteran is entitled to service connection for hypertension. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Entitlement to a rating in excess of 30 percent for allergic rhinitis is remanded. Entitlement to a compensable rating for sinusitis prior to April 25, 2018, and in excess of 10 percent thereafter, is remanded. Entitlement to a rating in excess of 20 percent for left knee instability is remanded. Entitlement to a rating in excess of 10 percent for left knee ACL tear with osteoarthritis is remanded. Entitlement to a compensable rating for headaches is remanded. The Veteran contends she is entitled to higher evaluations for her service-connected allergic rhinitis, sinusitis, left knee disabilities, and headaches. The Board finds that the Veteran's hearing testimony suggests that her service-connected disabilities may have worsened since her most recent VA examinations. The Veteran was last afforded a VA sinusitis and rhinitis examination in August 2018. She testified that she has problems breathing, and experiences incapacitating episodes related to her sinus condition, including a serious sinus infection about once per month for which she has been prescribed antibiotics and prednisone in the past. The Veteran was last afforded a VA knee examination in February 2018. She testified that she wears a VA prescribed brace on her left knee and sleeps with an icepack on her left knee. Her functional limitations/impairment include an inability to stand, and difficulty with sitting and walking for long periods of time. The Veteran was last afforded a VA headaches examination in February 2018. At the hearing, she testified that she experiences severe, incapacitating headaches approximately once per month which necessitate laying down in a dark room. She indicated the headaches were triggered by stress, anger and lack of sleep and she was unable to do anything else when they occurred. Given the foregoing, on remand, new VA examinations should be obtained which provide full descriptions of the disabilities and report all signs, symptoms and manifestations necessary for evaluating the Veteran's disabilities under the rating criteria. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for her claimed disabilities. Make two requests for the authorized records from identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records dated from November 2023 to the Present. 3. Schedule the Veteran for examinations to determine the nature and etiology of her claimed heart disability, UTI, lymph node disability, granulomatous disease, eye disabilities and lumbar spine disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the examiner(s). NOTE (1): The examiner must be advised that VA has determined the Veteran participated in a Toxic Exposure Risk Activity (TERA) during her service in the Southwest Asia theater of operations. See August 2023 VA TERA Memorandum. As such, in providing the TERA specific opinions for the heart, UTI, lymph node, granulomatous, and eye disabilities, the examiner must consider: (a) the total potential exposure through all applicable deployments and (b) the synergistic, combined effect of all toxic exposure risk activities of the Veteran. NOTE (2): A negative medical opinion may not be predicated solely on the absence of in-service documented complaints, findings, or treatment. NOTE (3): A negative medical opinion may not rely solely on the absence of continuity of treatment or care, and must consider any reports of onset of symptoms and continuity of symptoms. The clinician is not required to accept the Veteran's history of onset, continuity of symptoms, etc., however, he or she must provide an explanation for rejecting such. NOTE (4): If another etiology is the more likely cause of a disability, then identify that etiology and fully explain. The conclusions must be supported with data (e.g., history, findings, etc.) along with a reasoned medical explanation connecting the two. The examiner must opine on the following: Heart Whether any heart disability, including coronary artery disease, (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is related to an in-service injury, event, or disease, including the Veteran's confirmed participation in a TERA. Explain. Urinary Tract Infection Whether any UTI is related to an in-service injury, event, or disease, including a September 1994 urinalysis showing abundant squamous epithelial cells, light mucus, and trace bacteria, and/or the Veteran's confirmed participation in a TERA. Explain. Lymph Node Disease Whether any lymph node disease is related to an in-service injury, event, or disease, including small masses noted in the Veteran's right armpit in June 1991 and October 1998, and/or the Veteran's confirmed participation in a TERA. Explain. Granulomatous Disease Whether any granulomatous disease is related to an in-service injury, event, or disease, including complaints of shortness of breath upon exertion in October 1988, the Veteran's report of experiencing pain in her chest on the September 1994 Report of Medical History (ROMH), and/or the Veteran's confirmed participation in a TERA. Explain. Eye Disability Whether any eye disability is related to an in-service injury, event, or disease, including a November 1985 personal assault where the Veteran was punched in the right eye, and/or the Veteran's confirmed participation in a TERA. Explain. Lumbar Spine Whether any lumbar spine disability, including degenerative arthritis, (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is related to an in-service injury, event, or disease, including backache documented in September 1994 STR and standing for 10-12 hour shifts as a food services specialist working in a dining facility. Explain. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected left knee disability. 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. 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 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). 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity and any manifestations of her service-connected sinusitis and rhinitis disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected headache disability. 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. (CONTINUED ON NEXT PAGE) 7. Readjudicate the issues on appeal, to include consideration of additional VA-obtained evidence since the issuance of the March 2020 Statement of the Case. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Jenna Brant Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.