Citation Nr: A25035290 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 221018-286773 DATE: April 16, 2025 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to the service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to an initial compensable disability rating for the service-connected tension headaches is remanded. Entitlement to an initial compensable disability rating for the service-connected acne is remanded. REASONS FOR REMAND The Veteran served on active duty for training from August 2007 to January 2008, and active duty from May 2008 to June 2009 and from September 2021 to March 2022, with additional service in the Army National Guards of New Jersey and the District of Columbia. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 30, 2022, Department of Veterans Affairs (VA) Regional Office (RO) Higher-Level Review (HLR) rating decision. In that decision, the RO denied entitlement to service connection for GERD and lumbar strain (on the merits), and denied initial compensable disability ratings for acne and tension headaches. By way of history, in a May 2019 rating decision, the RO granted service connection for acne, assigning a noncompensable disability rating effective from May 30, 2018, and denied service connection for lumbosacral strain. In May 2020, VA received the Veteran's VA Form 20-0996 Decision Review Request: Request for HLR. In an October 2020 HLR rating decision, the RO again denied service connection for lumbosacral strain and a compensable disability rating for the service-connected acne. In a March 2021 rating decision, the RO denied service connection for GERD, and in a decision in the following month, the RO granted service connection for tension headaches and assigned an initial noncompensable disability rating, effective from February 11, 2020. In September 2021, VA received the Veteran's VA Form 20-0995 Decision Review Request: Supplemental Claim as to the issue of increased rating for acne. In October 2021, VA received VA Form 20-0995s for service connection for GERD and lumbosacral strain and increased rating for the service-connected tension headaches. In a December 16, 2021, rating decision, the RO again denied the claims. Thereafter, in July and August 2022, VA received VA Form 20-0996s seeking HLR of the December 16, 2021, rating decision. The August 30, 2022, rating decision followed. On October 18, 2022, VA received the Veteran's 10182 Notice of Disagreement (NOD). The Veteran selected the Direct Review docket. Therefore, the Board will decide the appeal based on the evidence of record at the time of the December 16, 2021, rating decision reviewed by the August 30, 2022, HLR rating decision. 38 C.F.R. § 20.301. As the RO readjudicated the claims for service connection for lumbar strain and GERD based on receipt of new and relevant evidence and readjudication was not clearly erroneous, the Board is bound by this favorable finding. 38 C.F.R. § 3.104(c). Because the Board is remanding all claims addressed by this decision, any evidence that the Board could not consider with respect to the claims will be considered by the RO in the adjudication of the claims on remand. 38 C.F.R. § 3.103(c)(2)(ii). 1. Entitlement to service connection for a low back disability. During a May 2019 VA examination for the thoracolumbar spine, the Veteran contended that his low back disability is related to performance of physical training and carrying items during his 2009 Iraq deployment. In an October 2021 statement, he asserted that he injured his back "while doing PT on uneven ground." He reported that he continued to experience "varying degrees of pain and issues with my low back" following separation from active duty - presumably the period of active duty service from May 2008 to June 2009. He reported exacerbations of back pain associated with leaning forward and backwards and lifting weights. He indicated that he could "only slightly" move his back during flare-ups of back pain. The May 2019 examiner provided a diagnosis of lumbar strain but also suggested that there was "no pathology found on exam." The sole opinion provided by the examiner was whether the lumbar strain was a medically unexplained chronic multsymptom illness (MUCMI) or undiagnosed illness. The examiner concluded that lumbar strain was a disease with a clear and specific etiology and diagnosis, and therefore, not a MUCMI or undiagnosed illness. However, the Veteran contends that his low back disability is related to performance of physical training and carrying items during his first period of active duty service and that his pain has persisted since separation from this period of service. Given that the May 2019 opinion is wholly unresponsive to the Veteran's contentions, it is inadequate to support a decision on the claim. Failure to provide an adequate opinion regarding the low back disability is a pre-decisional duty-to-assist error requiring remand for a new VA examination and opinion. 38 C.F.R. § 20.802(a). 2. Entitlement to service connection for GERD, to include as secondary to the service-connected PTSD. The Veteran contends that his GERD is proximately due to or aggravated beyond the natural progression by his service-connected PTSD. However, during a February 2021 VA examination for GERD, he reported onset of GERD symptoms in 2008 or 2009, or roughly coinciding with the period of active duty service from May 2008 to June 2009. Accordingly, a direct service connection theory is also reasonably raised. Furthermore, during the pendency of the appeal, Congress passed the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act). Under the PACT Act, VA must provide a VA examination and medical opinion when there exists evidence of a disability and evidence of participation in a toxic exposure risk activity (TERA) when such evidence is not sufficient to establish service connection for the disability. 38 U.S.C. § 1168(a). The examination requirement does not apply if the VA Secretary has determined that there is no indication of an association between the disability claimed by the veteran and the toxic exposure risk activity for which the veteran has submitted evidence. 38 U.S.C. § 1168(b). The Veteran's DD Form 214 for the period of active duty service from May 2008 to June 2009 reflects that he served in Iraq from September 2008 to May 2009. Therefore, participation in a TERA during this period of service is conceded. A February 2021 VA examination confirmed the diagnosis of GERD. However, the examiner opined that the GERD was less likely than not proximately due to the service-connected PTSD. The examiner first commented on common symptoms associated with PTSD. Next, the examiner noted that GERD is caused by "frequent acid reflux." Finally, the examiner noted that "[w]hen you swallow, a circular band of muscle around the bottom of your esophagus (lower esophageal sphincter) relaxes to allow food and liquid to flow into your stomach therefore a nexus for the claimed condition has not been established." The above opinion is merely based on a set of premises and a conclusion, without any reasoned analysis connecting the two. Accordingly, the opinion regarding proximate causation is inadequate to support a decision on the claim. Furthermore, the examiner failed to include a separate opinion regarding aggravation. Finally, the examiner failed to address direct service connection, which was reasonably raised by the Veteran's statements during the examination. These errors constitute pre-decisional duty-to-assist errors requiring remand for a new VA examination and opinions for the GERD. 38 C.F.R. § 20.802(a). Furthermore, given the Veteran's conceded participation in a TERA due to his Iraq service, the opinions provided on remand should also include a TERA-specific opinion to comply with the PACT Act. Finally, in October 2021, the Veteran submitted a private opinion (apparently completed on August 25, 2021) by Gina Uribe., a nurse practitioner. Ms. Uribe. opined that the GERD was at least as likely or not "secondary to, related to, and/or aggravated by" the service-connected PTSD. In essence, Ms. Uribe reasoned that the Veteran's "emotional distress" and "sleep disturbance" due to his PTSD, as described in an October 7, 2021, statement, would cause "prolonged oxygen and nutrient deprivation to the [lower esophageal sphincter]," thereby decreasing pressure of the lower esophageal sphincter and increasing intra-gastric pressure, leading to or aggravating GERD." In support, Ms. Uribe included numerous references to medical literature describing associations between mental health symptoms and GERD. However, the literature referenced by Ms. Uribe is merely associative, and does not identify a causative relationship consistent with the mechanism proposed in the opinion. Furthermore, in the October 2021 statement cited in the opinion, the Veteran described lack of sleep due to GERD symptoms. For example, he reported that he was able to sleep "no more than 4 straight hours due to being awakened from my GERD symptoms." Therefore, the statement suggests that the Veteran's sleep disturbances are associated with the GERD itself rather than PTSD. Ms. Uribe failed to explain this discrepancy in the October 2021 opinion. Next, Ms. Uribe's conclusion that the GERD was "secondary to, related to, and/or aggravated by" the service-connected PTSD is, in essence, inconclusive due to failure to specify which theory of nexus is applicable to the Veteran's case. Additionally, it unclear to what extent, if any, Ms. Uribe reviewed the claims file or was otherwise accurately briefed on the Veteran's medical history. In this regard, Ms. Uribe suggested that the opinion "was based upon a review of the available medical records and VA documentation which may include the following:" after which she listed documents that are often, but not necessarily, included in a claims file. As such, there is no clear indication which documents Ms. Uribe reviewed, other than the October 2021 statement, which is the only evidence from the claims file that is discussed in the opinion. Finally, it is noteworthy that the private opinion prepared by Ms. Uribe on August 25, 2021, in large part, relies on a statement by the Veteran that is dated October 7, 2021. While it is possible that the private opinion may be misdated or that the Veteran submitted a copy of the statement to Ms. Uribe before submitting it to VA, it is also possible that he recorded the October 7, 2021, statement to align with the earlier August 25, 2021, opinion. This date inconsistency, when considered with the other reasons noted above, renders the August 25, 2021, opinion inadequate to support a decision on the claim at this time. 3. Entitlement to an initial compensable disability rating for the service-connected tension headaches. During a February 2021 VA headache examination, the Veteran reported headaches associated with nausea, fatigue, dizziness, and loss of appetite. He further reported that he would "miss work" during severe headaches and that he experienced sensitivity to light and sound, lightness in the shoulders, and weakness during headaches. He indicated that he used over-the-counter medication to treat his headaches. However, the examiner made no effort to elicit statements regarding the frequency or severity of headaches, to include the frequency or severity of headaches that caused the Veteran to miss work. Furthermore, the examiner, without further explanation, found that the Veteran did not experience non-headache symptoms associated with headaches, despite reports of non-headache symptoms associated with headaches during the examination (noted above). This also suggests that the examiner failed to adequately elicit or evaluate statements from the Veteran during the examination. The above is a pre-decisional duty-to-assist error requiring remand for a new VA examination for the service-connected tension headaches. 38 C.F.R. § 20.801(a). Furthermore, 38 C.F.R. § 4.124a, Diagnostic Code 8100, the rating code for the tension headaches, does not specifically consider the effects of medication. Therefore, VA is required to discount any ameliorative effects of medication. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016); Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Here, the Veteran reported use of over-the-counter medication during the February 2021 examination. In an October 2021 statement, the Veteran confirmed use of ibuprofen and acetaminophen for relief. An April 14, 2021, VA primary care telephone encounter note suggests that the headaches were relieved by his medications. Accordingly, on remand, the examiner should attempt to discount the ameliorative effects of medication in evaluation of the current severity of the service-connected tension headaches. Finally, of record is an August 25, 2021m private opinion, also prepared by Gina Uribe, regarding the severity of the tension headaches. Ms. Uribe opined that the Veteran's headache symptoms met the 30 percent rating criteria under 38 C.F.R. § 4.124a, Diagnostic Code 8100, again relying solely on an October 7, 2021, statement from the Veteran. The opinion quotes the statement dated nearly two months later word-for-word, and at length. As with the GERD opinion discussed above, there is also no indication that Ms. Uribe interviewed or examined the Veteran or reviewed the claims file, the August 25, 2021, private opinion is inadequate to support a decision on the claim. 4. Entitlement to an initial compensable disability rating for the service-connected acne. The Veteran has undergone three VA examinations for acne during the rating period. First, no acne was observed during the Veteran's initial VA skin examination in May 2019. Next, during a September 2020 VA examination, the Veteran was unable to remove his face mask due to coronavirus protocols, leaving his face - the primary area affected by acne - partially obscured. Finally, he underwent a VA examination in September 2019. During that examination, the examiner noted that the Veteran had "superficial acne" that affected 5 ot 20 percent of exposed areas. All three examiners opined that the acne did not result in scarring or disfigurement of the head, face, or neck. However, in a September 2021 statement submitted just prior to the September 2021 examination, the Veteran reported "constant" acne flare-ups on his head, face, and neck that were manifested by "discoloration, itchiness, burning sensations, rough spots, bleeding, and scaling." Importantly, 38 C.F.R. § 4.118, Diagnostic Code 7828, which rates acne, notes that acne may be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) depending on the predominant disability. Under Diagnostic Code 7800, disfigurement of the head, face, or neck may be rated based on the number of characteristics of disfigurement that are present. Characteristics of disfigurement specified in Note (1) of that code include hypo- or hyper-pigmented skin in an area exceeding 6 square inches (39 square centimeters) and abnormal skin texture (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 square centimeters). Here, the September 2021 statement, which suggests that the acne may result in characteristics of disfigurement including hypo- or hyperpigmentation and abnormal skin texture, was of record at the time of the September 2021 examination. However, there is no indication the examiner addressed the statement. Given that the examiner concluded that the acne did not result in characteristics of disfigurement, failure to address the statement was prejudicial to the Veteran and is a pre-decisional duty-to-assist error requiring remand. 38 C.F.R. § 20.802(a). On remand, in addition to a VA skin examination, the RO should obtain a VA "scar" examination - as neither Diagnostic Codes 7800 nor 7828 suggest that the acne must result in scarring to be rated under Diagnostic Code 7800 - to determine whether the acne results in disfigurement of the head, face, or neck. Finally, unlike the General Rating Formula for the Skin of 38 C.F.R. § 4.118, Diagnostic Code 7828 does not specifically consider the effects of medication. Therefore, VA is required to discount any ameliorative effects of medication. McCarroll, 28 Vet. App.at 271 (2016); Jones, 26 Vet. App. at 63 (2012). Here, the Veteran has reported use of benzoyl peroxide, tretinoin, and triamcinolone to treat his acne flare-ups. Accordingly, on remand, the examiner should attempt to discount the ameliorative effects of medication in evaluation of the current severity of the service-connected acne. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and likely etiology of his low back disability. The claims file, including a copy of this Remand, must be made available to the examiner and the examiner must indicate that the claims file was reviewed in the examination report. A complete rationale for all opinions must be provided. Applying general medical principles and the examiner's own expertise, the examiner should state whether it is at least as likely as not (the evidence is approximately evenly balanced, or nearly equal, if not higher) that any low back disability was incurred in or is otherwise related to any injury or disease during active duty service. Why or why not? The examiner is referred to the Veteran's statements during the May 2019 VA back examination regarding experiencing low back pain during performance of physical training and carrying items during his 2009 deployment to Iraq. Furthermore, the examiner is referred to the October 2021 statement, in which the Veteran asserted that he injured his back "while doing PT on uneven ground," and that he continued to experience "varying degrees of pain and issues with my low back" following the period of active duty service ending in June 2009. In providing the requested opinion, please discuss the significance, if any, of the above evidence in forming the opinion. 2. Schedule the Veteran for a VA examination to determine the current nature and likely etiology of the Veteran's GERD which should include a TERA-specific opinion pursuant to 38 U.S.C. § 1168(a). The claims file, including a copy of this Remand, must be reviewed by the examiner and the examiner should note review of the claims file in the examination report. A complete rationale for all opinions must be provided. Applying general medical principles and the examiner's own expertise, the examiner should answer the following questions: (a.) Is it at least as likely as not that the Veteran's GERD is proximately due to or aggravated (beyond the natural progression) by the service-connected PTSD. Why or why not? (b.) If (a.) is answered in the negative, is it at least as likely as not (the evidence is at least evenly balanced, or nearly equal, if not higher) that the Veteran's GERD is related to or otherwise caused by a TERA, as per 38 U.S.C. § 1168(a), or is otherwise related to service? Why or why not? The examiner must discuss the Veteran's risk factors and consider both the total potential toxic exposure as well as the synergistic, combined effect of all toxic exposure risk activities, to include service in Iraq from May 2008 to June 2009. The examiner is referred to the Veteran's statement during the February 2021 VA GERD examination regarding onset of GERD symptoms in 2008 or 2009. In providing the requested opinion, please discuss the significance, if any, of the above evidence in forming the opinion. 3. Schedule the Veteran for an examination to determine the current severity of the service-connected tension headaches. The claims file, including a copy of this Remand, must be made available to the examiner and the examiner should indicate that the claims file was reviewed in the examination report. A complete rationale for all opinions must be provided. 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 should elicit statements from the Veteran regarding frequency, duration, and severity of his headache symptoms. The examiner should also state whether the Veteran's headaches would result in further functional impairment in the absence of the ameliorative effects of medications, which have included ibuprofen and acetaminophen, and, if so, the examiner should attempt to provide an estimate of the frequency, duration, and severity of attacks of headache pain, to include prostrating attacks, in the absence of medication. The examiner is referred to the Veteran's October 2021 statement regarding the severity of his headaches, especially as to the Veteran's assertion that he is totally incapacitated for periods of up to 4 hours during headaches. In providing the requested opinion, please discuss the significance, if any, of the above evidence in forming the opinion. 4. Schedule the Veteran for an examination to determine the current severity of the service-connected acne. The claims file, including a copy of this Remand, must be made available to the examiner and the examiner should indicate that the claims file was reviewed in the examination report. A complete rationale for all opinions must be provided. The examiner should complete disability benefits questionnaires for both skin and scarring/disfigurement of the head, face, and/or neck. 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 should also state whether the Veteran's acne would result in further functional impairment in the absence of the ameliorative effects of medications, which have included benzoyl peroxide, tretinoin, and triamcinolone, and, if so, the examiner should state whether there would, as likely as not, be deep acne covering less or more than 40 percent of the face and neck in the absence of medication; or additional characteristics of disfigurement of the head, face, or neck. The examiner is referred to the Veteran's September 2021 statement regarding the severity of his acne during flare-ups. In providing the requested opinion, please discuss the significance, if any, of the above evidence in forming the opinion. In remanding this matter, no finding is made, 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 unless otherwise stated. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.