Citation Nr: 1815136 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 10-11 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for onychomycosis or residuals thereof, to include as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus or in-service herbicide agent exposure. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus. 4. Entitlement to service connection for renal insufficiency, to include as secondary to service-connected diabetes mellitus, or hypertension. 5. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as due to service-connected diabetes mellitus. 6. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to service-connected diabetes mellitus. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Pelican, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from February 1963 to February 1967. The Veteran had service in the Republic of Vietnam, for which he was awarded a Purple Heart medal. These matters come before the Board of Veterans' Appeals (the Board) from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran had a videoconference hearing before the undersigned Veterans Law Judge in March 2014. A transcript of that proceeding has been associated with the claims file. These matters were previously before the Board in July 2013, May 2014, and July 2015. Unfortunately, as discussed in further detail below, additional development is required. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran was afforded several VA examinations in February 2016. However, for the following reasons, additional clarification is required. With respect to the Veteran's neuropathy claims, the examiner opined that the Veteran's lower extremity neuropathies were less likely than not aggravated by the Veteran's diabetes because there was no evidence of aggravation of his current symptoms from diabetes. Given the lack of supporting rationale for this opinion, additional clarification is required. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (holding that the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence). The Board's July 2015 remand directed the AOJ to obtain electromyogram (EMG) results from 2014, based on a January 2015 addendum opinion regarding the Veteran's peripheral neuropathy claims. The opinion stated that if the Veteran's diabetes had aggravated his carpal tunnel and ulnar tunnel symptoms such aggravation would have been evident on the 2014 EMG. Although the AOJ appears to have obtained all outstanding VA medical records, EMG results dated in 2014 do not appear among those records. The Board observes that the examiner's original notation of this EMG was listed as "10-23014," ostensibly referring to October 23, 2014, and that the last EMG on file was dated October 23, 2012. Given that the AOJ obtained all outstanding VA medical records for 2014 and the similarity of the dates mentioned above, it appears that there may not have been an EMG performed in 2014. If that is the case, the absence of an October 2014 EMG removes the rationale, and in turn the probative value, of the January 2015 addendum opinion. As the February 2016 opinion did not address the Veteran's upper extremity neuropathy, an addendum opinion is required. With respect to the Veteran's hypertension claim, the Board directed the VA examiner to address the findings of the Institute of Medicine on the association between Agent Orange exposure and hypertension, which include "limited or suggestive evidence of an association between exposure to [Agent Orange] and hypertension..." See Veterans and Agent Orange: Update 2006, Institute of Medicine 557-60 (2007); Veterans and Agent Orange: Update 2010, Institute of Medicine 694, 697 (2011), Veterans and Agent Orange: Update 2012, Institute of Medicine 862-63 (2014). However, the February 2016 VA examiner did not address the Institute of Medicine findings, nor is there any indication from the opinion that the examiner considered its findings in reaching his conclusion. Accordingly, remand for an addendum is necessary. As to the Veteran's renal insufficiency claim, the February 2016 examiner opined that the condition was more likely than not secondary to the Veteran's hypertension. Given that the Veteran's hypertension claim is being remanded for an addendum opinion, the renal insufficiency claim is inextricably intertwined and must be remanded as well. Turning to the onychomycosis claim, the February 2016 VA examiner opined that as onychomycosis began 20 years prior to the Veteran's diabetes diagnosis, diabetes did not cause that condition. The examiner further opined that the record contained no evidence that the Veteran's diabetes aggravated his onychomycosis, reasoning that while onychomycosis usually occurred in diabetic patients with poor control of diabetes, the Veteran's diabetes was relatively well-controlled, suggesting it was not an aggravating factor. Although the Veteran's diabetes has been under good control in recent years and had some instances of good control in July 2003 and August 2004, records dated July 2, 2002; June 6, 2005; February 8, 2007; November 21, 2008; and November 23, 2011 indicate the Veteran had poor control of his diabetes, and was started on insulin in 2011 due to poor control of diabetes. An addendum is necessary to address these records in light of the examiner's opinion that onychomycosis usually occurred in patients with poorly controlled diabetes. Finally, the Board observes that the examiner's rationale for finding that erectile dysfunction, onychomycosis, and peripheral neuropathies were not caused or aggravated by diabetes was substantially based on the conclusion that the claimed conditions preceded the Veteran's diabetes diagnosis by years. However, a recent decision by the United States Court of Appeals for Veterans Claims (the Court) requires the Board to seek additional medical clarification. In Frost v. Shulkin, 29 Vet. App. 131 (2017), the Court held that 38 C.F.R. § 3.310 contains no temporal requirement that the primary condition be service-connected, or even diagnosed, at the time the secondary condition was incurred. Moreover, the earliest VA medical records on file, dated in July 2002, state that the Veteran had a prior diagnosis of diabetes mellitus and was not presently on medications, and an April 2015 letter from Dr. M. M. stated that the Veteran was hyperglycemic for a number of years prior to his official diagnosis. In light of this precedential decision, addendum opinions regarding the relationship between the Veteran's diabetes and erectile dysfunction, onychomycosis, and peripheral neuropathies are required. Accordingly, the case is REMANDED for the following actions: 1. Forward the claims file to an appropriate physician for an addendum. If the physician determines that the Veteran should be provided another VA examination, one should be scheduled. The physician should review the entire claims file, to include this remand, and respond to the following: a. Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's hypertension is caused by or related to active military service, to include the Veteran's presumed herbicide agent exposure. In formulating the requested opinion, the clinician should address the findings of the Institute of Medicine on the association between Agent Orange exposure and hypertension, which include "limited or suggestive evidence of an association between exposure to [Agent Orange] and hypertension..." See Veterans and Agent Orange: Update 2006, Institute of Medicine 557-60 (2007); Veterans and Agent Orange: Update 2010, Institute of Medicine 694, 697 (2011), Veterans and Agent Orange: Update 2012, Institute of Medicine 862-63 (2014). Note that because there is only limited or suggestive evidence, it has not been added to the presumptive condition list; however, limited or suggestive does not rule out the possibility of a direct connection; therefore, an opinion as to the likelihood is requested. Relevant points addressed in the examination report may include, but are not limited to, why the clinician finds studies persuasive or unpersuasive, whether the Veteran has other risk factors for developing hypertension, and whether hypertension has manifested in an unusual manner. b. Whether the erectile dysfunction is at least as likely as not (50 percent or greater probability) caused by or due to the Veteran's service-connected diabetes mellitus or non-service connected hypertension; c. Whether the erectile dysfunction is at least as likely as not (50 percent or greater probability) aggravated by the Veteran's service-connected diabetes mellitus or non-service connected hypertension. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's erectile dysfunction found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected diabetes mellitus or non-service connected hypertension. d. Whether the onychomycosis or residuals thereof is at least as likely as not (50 percent or greater probability) caused by or due to the Veteran's service-connected diabetes mellitus; e. Whether the onychomycosis or residuals thereof is at least as likely as not (50 percent or greater probability) aggravated by the Veteran's service-connected diabetes mellitus. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's onychomycosis or residuals thereof found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected diabetes mellitus. f. Whether the carpal and ulnar tunnel syndromes of the bilateral upper extremities are at least as likely as not (50 percent or greater probability) related to military service; g. Whether the carpal and ulnar tunnel syndromes of the bilateral upper extremities are at least as likely as not (50 percent or greater probability) caused by or due to the Veteran's service-connected diabetes mellitus; h. Whether the carpal and ulnar tunnel syndromes of the bilateral upper extremities are at least as likely as not (50 percent or greater probability) aggravated by the Veteran's service-connected diabetes mellitus. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's carpal and ulnar tunnel syndromes of the bilateral upper extremities prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected diabetes mellitus. i. Whether the peripheral neuropathy of the bilateral lower extremities is at least as likely as not (50 percent or greater probability) caused by or due to the Veteran's service-connected diabetes mellitus; j. Whether the peripheral neuropathy of the bilateral lower extremities is at least as likely as not (50 percent or greater probability) aggravated by the Veteran's service-connected diabetes mellitus. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's peripheral neuropathy of the bilateral lower extremities prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected diabetes mellitus. The examiner is reminded that the earliest VA medical records on file, dated in July 2002, state that the Veteran had a prior diagnosis of diabetes mellitus and was not presently on medications, and an April 2015 letter from Dr. M. M. stated that the Veteran was hyperglycemic for a number of years prior to his official diagnosis. Additionally, although the Veteran's diabetes has been under good control in recent years and had some instances of good control in July 2003 and August 2004, records dated July 2, 2002; June 6, 2005; February 8, 2007; November 21, 2008; and November 23, 2011 indicate the Veteran had poor control of his diabetes, and was started on insulin in 2011 due to poor control of diabetes. For all of the requested opinions, the examiner should consider the Veteran's lay statements regarding the nature of his symptoms. The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of numbness and tingling. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The rationale for all opinions expressed must be provided. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 2. Review the addendum opinions to ensure they comply with the Board's remand directives. Any inadequacies should be addressed prior to recertification to the Board. 3. After ensuring that the requested actions are completed, the AOJ should conduct any other development actions deemed warranted and readjudicate the claims on appeal. If any benefit sought is not fully granted, the AOJ must furnish a Supplemental Statement of the Case before the claims file is returned to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 (2012). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).