Citation Nr: 1530312 Decision Date: 07/15/15 Archive Date: 07/21/15 DOCKET NO. 08-04 764 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for a disability manifested by swelling of the bilateral legs and hands, including as secondary to service-connected disabilities. 2. Entitlement to service connection for a disability manifested by discoloration of the feet, including as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from February 1968 to January 1971, including service in the Republic of Vietnam. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, that denied the benefits sought on appeal. The Veteran timely appealed the decision, and the Board remanded the issue, most recently in August 2014, for further evidentiary development and adjudication. In that remand, the Board instructed the agency of original jurisdiction (AOJ) to obtain additional VA examination and then re-adjudicate the claims. The AOJ obtained VA examinations in September 2014 and provided the Veteran a supplemental statement of the case (SSOC) in January 2015. REMAND The Board again finds that additional evidentiary development is necessary before a decision can be reached on the merits of the claims. The United States Court of Appeals for Veterans Claims (Court) has held that "a remand by this Court of the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2014). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2014). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection on a secondary basis is warranted when it is shown that disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2014). This includes disabilities aggravated or made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Here, the Veteran contends that he experiences a disability manifested by swelling of the hands and legs and a disability manifested by discoloration of the feet that are due to or aggravated by his service-connected diabetes mellitus or coronary artery disease. The Veteran has also contended, in the alternative, that he believes his claimed disabilities manifested by swelling of the hands and legs and discoloration of the feet are etiologically related to his time in service. The Veteran underwent VA examination most recently September 2014, pursuant to the Board's August 2014 remand. Report of that VA examination reflects that the examiner was requested to ascertain the nature and likely etiology of any disabilities manifested by swelling of the legs and hands and discoloration of the feet. Specifically, the examiner was to opine as to whether the Veteran had separate disabilities manifested by swelling of the legs and hands or discoloration of the feet, and, if so, opine as to the likelihood that any such disability or disabilities were due to or aggravated by any of the Veteran's service-connected disabilities. The examiner first conducted an arteries and veins examination of the Veteran, finding that he did not have any diagnosed artery or vein disorder. However, the examiner then noted that the Veteran "has not had any tests or evaluations for vascular issues," including an ultrasound of his lower or upper limbs or an ankle brachial index. The only conclusion offered by the examiner was that the Veteran's pain in his feet was due to diabetic neuropathy. The examiner then evaluated the Veteran's skin, observing "feet discolorations" but concluding only that the discolorations were "of unknown origin." The examiner failed to provide any diagnosis for the observed discolorations, noting only that he has a current diagnosis of peripheral neuropathy in the legs and hands. By way of opinion, the examiner stated that the Veteran's arthritis of the hands and feet-which had been diagnosed at a previous VA examination in October 2011-"may be secondary to military service but this is purely speculation and there is no way to truly determine this." The examiner also stated that the arthritis is "also not due to a service connected disability" but offered no rationale for this opinion. The examiner further opined that the Veteran's foot discoloration disorder is "most likely multifactorial" in etiology but again offered no rationale for his conclusion that the disorder is "certainly ... not due to any service-connected disabilities." Under relevant VA regulations, action should be taken to obtain a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: 1) contains competent evidence of diagnosed disability or symptoms of disability; 2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, which may be established by competent lay evidence; and 3) indicates that the claimed disability may be associated with the in-service event, injury, or disease. 38 C.F.R. § 3.159(c)(4) (2014). See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong of Section 3.159(c)(4), which requires that the evidence of record "indicate" that the claimed disability or symptoms may be associated with service, establishes a low threshold. The Board further notes that the Court has held that once VA undertakes the effort to provide an examination when developing a claim for service connection, even if not statutorily obligated to do so, it must provide an adequate one. See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007), citing Barr, 21 Vet. App. at 311; see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). Here, however, the examiners' opinions to date have not fully considered the etiology of the Veteran's arthritis of the hands and feet, and the most recent VA examiner failed to provide specific rationale for the conclusions that were provided in the September 2014 VA examination report. This is so despite the Board's directives in the August 2014 remand, which specifically instructed the VA examiner to address the likely etiology of the Veteran's bilateral hand and foot arthritis and discolorations of his feet, particularly in light of the facts that the Veteran was treated for tinea pedis while in service; that a VA diabetic foot examination revealed dry, scaly skin and toenails thickened with subungal fungus on his bilateral feet; and that his VA treatment records include "tinea" and "skin lesion" among his active problems. Thus, the Board finds that additional VA medical opinion is required. See 38 C.F.R. § 4.2 (2014) (where an examination report does not contain sufficient detail, it is inadequate for evaluation purposes); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). The Board finds that there is insufficient competent medical evidence on file to make a decision and must therefore remand to obtain additional medical nexus opinion regarding the etiology of the Veteran's claimed swelling of the bilateral legs and hands and discoloration of the feet. See McLendon, 20 Vet. App. 79. Accordingly, remand is required. Under these circumstances, evidentiary development is needed to fully and fairly evaluate the Veteran's claims of service connection for swelling of the bilateral legs and hands and discoloration of the feet, both including as secondary to service-connected disabilities. 38 U.S.C.A. § 5103A (West 2014). Specifically, the AOJ must arrange for the issuance of a medical opinion, with additional explanation and rationale, by the examiner who offered the September 2014 opinions concerning the Veteran's claimed disabilities manifested by swelling of the hands and legs and discoloration of the feet. The examiner must again discuss whether it is at least as likely as not that the Veteran's bilateral hand and feet arthritis is etiologically linked to service, or to service-connected disability. Particularly concerning the Veteran's claim for a disability manifested by discoloration of the feet, the examiner must discuss, in the context of his opinion, the facts that the Veteran was treated for tinea pedis in service; that a VA diabetic foot examination revealed dry, scaly skin and toenails thickened with subungal fungus on his bilateral feet; and that his VA treatment records include "tinea" and "skin lesion" among his active problems. In addition, if in providing further discussion and rationale for his September 2014 opinions the examiner determines that he remains unable to provide any opinion without resorting to speculation, he must explain the inability to provide that opinion, identifying precisely what facts could not be determined. In particular, he should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). In addition, as suggested in the September 2014 examination report, if the examiner finds that vascular or other testing of the Veteran could lead to a more conclusive opinion, the AOJ must ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained. All opinions must be based upon consideration of the Veteran's documented history and assertions through careful consideration of all records in the Veteran's claims file. Such opinions are needed to fully and fairly evaluate the claims of service connection for swelling of the bilateral legs and hands and discoloration of the feet. See 38 U.S.C.A. § 5103A(d) (West 2014). (If further examination of the Veteran is necessary, such must be undertaken and such findings included in the examiner's final report. The AOJ must arrange for the Veteran to undergo examination, however, only if the September 2014 VA examiner is unavailable or if such examination is needed to answer the questions posed.) Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file must be referred to the VA examiner who provided the September 2014 VA opinions. The entire claims file, to include a complete copy of this remand, must be made available to and reviewed by the examiner. The reviewer must provide further discussion and rationale regarding his September 2014 opinions that he could not etiologically link the Veteran's current arthritis of the hands and feet to service, or to service-connected disability, without resorting to speculation. The examiner must specifically discuss whether, upon further review of the entirety of the record, it is at least as likely as not that the Veteran's diagnosed arthritis of the bilateral hands and feet is causally or etiologically a result of his military service, or has been caused or aggravated by any service-connected disability. The examiner must also provide further discussion and rationale for his opinion that the Veteran's foot discoloration disorder is "certainly" not due to any service-connected disability. The examiner must also offer an opinion as to whether it is at least as likely as not that the disorder is etiologically related directly to the Veteran's time in service. In the context of his opinion, the examiner must discuss the facts that the Veteran was treated for tinea pedis in service; that a VA diabetic foot examination revealed dry, scaly skin and toenails thickened with subungal fungus on his bilateral feet; and that his VA treatment records include "tinea" and "skin lesion" among his active problems. A full explanation for all opinions expressed must be provided. If the examiner determines that he remains unable to provide any opinion without resorting to speculation, he must explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). If, as suggested in the September 2014 examination report, the examiner finds that vascular or other testing of the Veteran could lead to a more conclusive opinion, the AOJ must ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained. (If the reviewer is no longer available, or the reviewer determines that another examination is necessary to arrive at any requested opinions, an examination should be scheduled and the Veteran notified that failure to report to any scheduled examination, without good cause, could result in a denial of his claims. See 38 C.F.R. § 3.655(b) (2014). The examiner should provide the opinions requested above.) 2. After the requested development has been completed, the examination report(s) must be reviewed to ensure that it is in compliance with the directives of this remand. If any report is deficient in any manner, it must be returned to the examiner. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, the claims on appeal must be adjudicated in light of all pertinent evidence and legal authority. If any benefit sought remains denied, the Veteran must be furnished a supplemental statement of the case and afforded the appropriate time for response before the claims file is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).