Citation Nr: 1805670 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-15 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a right shoulder disability, claimed as secondary to service-connected disability. 2. Entitlement to service connection for a cervical spine disability, claimed as secondary to service-connected disability. 3. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected obstructive sleep apnea. 4. Entitlement to a total rating based on unemployability due to service-connected disability, for the period prior to March 14, 2012. ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from July 1974 to July 1978, and in the United States Navy from August 1979 to January 1982. This matter came before the Board of Veterans' Appeals (Board) from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The appeal was before the Board in December 2015, at which time the Board declined to reopen a claim of entitlement to service connection for posttraumatic stress disorder, reopened and granted a claim of entitlement to service connection for major depressive disorder, and denied service connection for hyperlipidemia. Claims of entitlement to service connection for a right shoulder disability, a cervical spine disability, and diabetes mellitus; as well as a petition to reopen a claim of entitlement to service connection for a right hip disability were remanded for action by the Agency of Original Jurisdiction (AOJ). While the appeal was in remand status, the AOJ issued a rating decision in November 2016 that granted service connection for major depressive disorder and awarded a 30 percent evaluation. This award increased the Veteran's total evaluation for compensation to 100% effective March 14, 2012. Thus, from that date, the assignment of a schedular 100 percent evaluation renders the Veteran's claim of entitlement to a TDIU moot. The issue regarding entitlement to a TDIU has been characterized accordingly. While the appeal was in remand status, the AOJ also granted service connection for a right hip disability in a September 2017 rating decision. As the award of service connection constitutes a full grant of the benefit sought on appeal, the Board will not address this issue herein. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In its December 2015 remand, the Board directed that the Veteran be afforded examinations to determine the etiology of his claimed right shoulder and cervical spine disabilities. It specified that the examiner should provide an opinion regarding whether it is at least as likely as not that any currently diagnosed disability of the right shoulder or cervical spine was caused or aggravated by a service-connected disability, to include his bilateral foot disability, bilateral ankle disability, bilateral knee disability, or degenerative disc disease of the lumbar spine. In October 2016, a VA fee basis examiner diagnosed shoulder strain and rotator cuff tendonitis. The examiner concluded that the right shoulder condition was less likely than not due to or the result of the service-connected bilateral foot condition, bilateral ankle condition, bilateral knee condition, and/or degenerative arthritis of the lumbar spine. He reasoned that "the right shoulder condition started in 2008 and was due to an injury that the claimant had had when he was moving around objects and is unrelated to any of the above-named anatomical locations. It is an unrelated location to the above-named joints as mentioned and requested in the opinion section." Unfortunately, this discussion does not adequately address the question posed. In that regard, it fails to respond to the inquiry of whether the current right shoulder diagnoses were aggravated by a service-connected disability. With respect to the claimed cervical spine disability, the examiner diagnosed degenerative arthritis of the spine. He concluded that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. He stated that "[T]he cervical spine condition is less likely than not due to or the result of the bilateral foot condition, bilateral ankle condition, bilateral knee condition, and/or degenerative arthritis of the lumbar spine." He reasoned that "the cervical spine condition of the proximal axial joints is less likely to have any relationship anatomically to the above-named musculoskeletal structures." This opinion does not adequately discuss the medical bases underlying the examiner's conclusion. The Board also directed that the Veteran be afforded an examination to determine the etiology of the claimed diabetes mellitus. It specified that the examiner should provide an opinion regarding whether it is at least as likely as not that diabetes mellitus was caused or aggravated by any service-connected disability, including obstructive sleep apnea. The Board also specified that the examiner should discuss scholarly articles submitted by the Veteran in 2012 that suggest an association between diabetes mellitus and sleep apnea. On VA examination in August 2017, the examiner stated that the Veteran's sleep apnea was less than 50 percent related to his diabetes. He stated that there was limited medical evidence in the claims file to support the claim that the Veteran's sleep apnea was due to diabetes mellitus. Unfortunately, the question in this case is whether diabetes mellitus was caused or aggravated by the Veteran's service-connected obstructive sleep apnea. Clarification must be sought. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the defects identified above, the Board has determined that clarification must be sought regarding the etiology of the Veteran's claimed right shoulder and cervical spine disabilities and diabetes mellitus. The Board notes that further development and adjudication of the claims for service connection may provide evidence in support of the claim for a TDIU for the period prior to March 14, 2012. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. Moreover, the Board's December 2015 remand directed that an opinion be sought regarding the impact of the Veteran's service-connected disabilities on his occupational functioning. In October 2016, the VA orthopedic examiner opined that the "[t]he claimant is able to obtain and maintain gainful employment pertaining to the service-connected right hip, cervical spine, and right shoulder conditions." This examiner did not address the impact of the Veteran's service-connected disabilities on his occupational functioning. The Board observes that once VA undertakes the effort to provide an examination when developing a claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the examiner did not address the impact of the Veteran's service-connected disabilities on his occupational functioning. An additional opinion must be sought. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any currently present disability of the right shoulder or cervical spine. The claims folder should be forwarded to the examiner for review. The examiner should be directed to elicit a complete history from the Veteran. All indicated studies should be performed. The examiner should identify all diagnoses referable to the Veteran's right shoulder and cervical spine. The examiner should then provide an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any such diagnosis is due to or aggravated by (i.e., worsened beyond the natural progress) by the Veteran's service-connected bilateral foot disability, bilateral ankle disability, bilateral knee disability, or degenerative disc disease of the lumbar spine. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The complete rationale for any conclusion reached should be provided. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his diabetes mellitus. The claims folder should be forwarded to the examiner for review. The examiner should be directed to elicit a complete history from the Veteran. All indicated studies should be performed. Following examination of the Veteran and review of the record, the should provide an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent or greater) that diabetes mellitus is due to or aggravated by (i.e., worsened beyond the natural progress) by the Veteran's service-connected sleep apnea. In discussing his opinion, the examiner should specifically note scholarly articles submitted by the Veteran in 2012 that suggest an association between diabetes mellitus and sleep apnea. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The complete rationale for any conclusion reached should be provided. 3. Thereafter, review the VA examination reports to ensure that they are responsive to and in compliance with the directives of this remand; if not, the AOJ should implement corrective procedures. 4. Then, readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (West 2012). _________________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), 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) (2017).