Citation Nr: 21000347 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-19 810A DATE: January 5, 2021 REMANDED The claim for service connection for a skin condition is remanded. The claim for service connection for sleep apnea is remanded. The claim for service connection for joint pain is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1989 to November 1993, including service in Southwest Asia. The Department of Veterans Affairs (VA) is grateful for his service. As the Board observed in its December 2018 remand, in March 2007 the VA Regional Office (RO) denied service connection for claims including for a skin condition and joint pain but the Veteran’s service treatment records and service personnel records were not then available. Service treatment and personnel records were obtained in June 2015. Reopening of these claims was therefore not required. 38 C.F.R. § 3.156 (c). The Veteran testified at a videoconference hearing in March 2018 before the undersigned Veterans Law Judge. A transcript is of record. As detailed below, remands are again required for the appealed claims. The resulting delay in the Board’s adjudication is regrettable but unavoidable. The Veteran is competent to report the symptoms that he experienced and his history of treatment. See Charles v. Principi, 16 Vet. App. 370, 374- 75 (2002). Upon remand, the examiners must give due consideration to the Veteran's self-reported history. Absent such consideration, the examinations cannot be valid. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (medical opinion must be supported by adequate analysis of relevant evidence). 1. Service connection for a skin condition The Veteran was afforded a VA skin examination in March 2016. The examiner noted a diagnosis of tinea pedis/ tinea cruris in 1991 – 1993. The Veteran reported a history of scaly rash on the planar surfaces of his feet and between his toes bilaterally, as well as intermittent rash on the back of his legs near his calves. He reported having a rash every three to six months lasting a week and treating them with antifungal creams. The Veteran provided the examiner photographs of his feet and legs showing his rash. The examiner assessed that the condition affected between 5 percent and 20 percent of total body area but no exposed areas. The examiner provided an opinion that it was unlikely that the Veteran’s skin condition was related to a specific exposure while in service in Southwest Asia. In its December 2018 remand, the Board noted that the March 2016 examiner had failed to specify the etiology of the skin condition or to address whether it was otherwise related to service. Upon VA skin examination in December 2019, the examiner diagnosed atopic dermatitis. The Veteran provided a history of onset of red, itchy rash to the feet, hands, arms, chest, and legs in 1993 with progressive worsening. The examiner found that the condition affected more than 40 percent of total body area but less than five percent of exposed areas. The examiner provided no description of the nature and extent of the skin condition or its history beyond that history reported by the Veteran. The December 2019 VA skin examiner noted that there were no records of complaint, treatment, or diagnosis of a skin condition while the Veteran was in service. Unfortunately, the examiner failed to provide the requested opinion addressing whether it was at least as likely as not a skin disorder was causally related to service, and also failed to consider the Veteran’s self-reported history for such an opinion. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, remand is again required for an examination addressing etiology of the Veteran’s claimed skin condition as related to service. Pursuant to remand instructions, the December 2019 examiner did opine that it was not at least as likely as not that the Veteran’s skin condition was related to irritable bowel syndrome based on the absence of medical literature supporting such an association. However, based on recent caselaw, separate opinions and rationales are now required for secondary causation and aggravation. See Atencio v. O'Rourke, 30 Vet. App. 74 (2018). Hence, these questions must be address by the examiner upon remand. Upon remand examination, attention is drawn to discrepant accounts by the Veteran between the March 2016 examination, when he reported having a rash in service affecting the feet and backs of legs, and the December 2019 examination, when he reported having a rash in service affecting the feet, hands, arms, chest, and legs. 2. Service connection for sleep apnea At a March 2016 VA sleep apnea examination, the examiner noted the Veteran’s report that he slept three to four hours per night with nightmares and had daytime hypersomnolence. A sleep study in 2015 with a diagnosis of obstructive sleep apnea was noted. The examiner opined that the Veteran’s condition was unlikely to be related to a specific exposure event experienced in Southwest Asia. The Veteran testified at his March 2018 hearing that he experienced symptoms of difficulty sleeping and was told of his loud snoring while in service, and he attributed this to his sleep apnea beginning in service. He also testified that treating clinicians thought his sleep apnea was due to his posttraumatic stress disorder (PTSD). In December 2018, the Board remanded the sleep apnea claim to obtain reported private treatment records for sleep apnea and past treatment records reportedly for both PTSD and sleep apnea since 1991 or 1992. The RO requested records and obtained some reported records, but these did not reflect treatment for PTSD or sleep apnea in service or proximate to service. The Board also remanded for a medical opinion addressing the likelihood of onset in service or aggravation by service-connected PTSD, noting that a December 2017 addendum to a March 2016 VA examination only addressed the question of causation by service-connected PTSD. A December 2019 VA examiner noted that there was no evidence in the Veteran’s records to support sleep apnea being incurred in service, including no records from service of complaints, treatment, or diagnosis of sleep apnea. Unfortunately, the December 2019 examiner failed to provide the requested opinion addressing whether it was at least as likely as not sleep apnea was causally related to service and whether it was at least as likely as not that the sleep apnea was aggravated by service-connected PTSD, and also failed to consider the Veteran’s self-reported history for such an opinion. Notably, the VA examiner in March 2016 did provide a negative etiology opinion as directly related to service. (This was inexplicably at the end of an examination report addressing fibromyalgia, and hence was likely missed by the Board in when the Board reviewed the case in December 2018.) The March 2016 examiner opined that it was not at least as likely as not that the Veteran’s sleep apnea was caused by an in-service injury, event, or illness, and based this opinion on the Veteran’s interval of service from 1989 to 1993, the absence of evidence of symptoms of sleep apnea between 1993 and 2015, the initial diagnosis of sleep apnea in 2015, and the Veteran’s body mass index (BMI) of 30.49, noting that obesity was “a major risk factor for sleep apnea.” However, the Veteran’s own statements do constitute evidence to support the presence symptoms potentially of sleep apnea between 1993 and 2015, contrary to the March 2016 examiner’s assertion of no evidence for that time interval. Charles, 16 Vet. App. at 374-75. Absent such consideration, the examination cannot be valid. Stefl, 21 Vet. App. at 124 (2007). Upon remand examination, the examiner should consider the Veteran’s reported history of symptoms along with the objective evidence of record. 3. Service connection for joint pain Upon VA fibromyalgia examination in March 2016, the Veteran reported onset of joint pain in 2001 or 2002 with no known diagnosis of fibromyalgia. Reported joint pains included moderate to severe generalized pain in the lower neck/shoulder area, hips, knees, and hands. The examiner reviewed stress tests performed in 2015, evaluated the Veteran, and concluded that there was no current diagnosis of fibromyalgia and there were no symptoms consistent with fibromyalgia. The examiner reviewed x-rays reflecting mild degenerative changes of the right hip, minimal degenerative discogenic change of the cervical spine at C4-C5, mild degenerative discogenic changes at L5-S1 and lower lumbar facet arthropathy, and probable trace left suprapatellar effusion. The Board in its December 2018 remand found fault with the failure to obtain x-rays of the shoulders and hands and failure of the examiner to provide opinions as to whether degenerative changes were present in service or within the first post-service year. The Board noted that the Veteran had testified at his March 2018 hearing to having had joint pain which began in service and for which he had sought treatment since service. Upon VA fibromyalgia examination in December 2019, the Veteran provided a history of onset of generalized muscle pain and fatigue while in the military in 1992 to 1993, with progressively worsening symptoms since that time. He reported treatment with Tylenol and oxycodone. The examiner noted that the Veteran currently reported pain in multiple joints and muscles, generalized daily fatigue, and episodes of irritable bowel and diarrhea. The examiner also noted that the Veteran was being treated for depression. The examiner provided no diagnosis of a condition and no assessment whether the Veteran had a chronic undiagnosed multi-symptom illness or fibromyalgia. VA examination of multiple joints was also conducted in December 2019. The Veteran provided history of progressively worsening pain since service in essentially all joints examined, including of the shoulders, elbows, hands, cervical spine, thoracolumbar spine, hips, knees, and ankles. Based on x-rays and physical examinations, the examiner assessed left hand strain, degenerative arthritis of both shoulders, bilateral knee strain, degenerative arthritis of the neck and back, arthritis of the hips, right ankle sprain, and subjective pain of the elbows without objective findings. The December 2019 examiner provided positive opinions for onset in service for right ankle sprain, a back disorder, and a left-hand sprain, and on these bases the Decision Review Officer at the RO granted service connection for disabilities of these parts by a June 2020 decision. Hence, claims for service connection for disabilities of these parts are no longer the subject of appeal, there remaining no associated case in controversy on the issue of service connection. Unfortunately, the December 2019 examiner failed to provide requested etiology opinions for claimed disabilities of joints other than the right ankle, the back, and the left hand. Regrettably, remand is again required for an examination and requested etiology opinions. The matters are REMANDED for the following actions: 1. Afford the Veteran and his authorized representative the opportunity to submit additional evidence or argument in furtherance of the remanded claims. 2. Obtain any VA treatment records and any pertinent private treatment records not yet associated with the claims file. The Veteran’s authorization or assistance should be requested, as appropriate. All requests, responses, and records received should be documented in the claims file. If any records cannot be obtained the Veteran should be appropriately notified. 3. Thereafter, due to the Covid-19 pandemic, if records-based examinations (including examinations supplemented by telephonic examination conducted with the Veteran) can satisfactorily address all questions posed in the remand instructions, then these should be accomplished. To the extent these cannot be accomplished, then in-person examinations should be conducted to the extent feasible. 4. Obtain an addendum to the December 2019 skin examination. The examiner is to be advised that prior examinations were deficient for failure to provide opinions addressing whether identified skin conditions developed in service or were otherwise causally related to service. The claims file must be reviewed inclusive of past examination reports, treatment records, and the Veteran’s statements and testimony. The examiner should note the discrepant accounts by the Veteran between the March 2016 examination, when he reported having a rash in service affecting the feet and backs of legs, and the December 2019 examination, when he reported having a rash in service affecting the feet, hands, arms, chest, and legs. The examiner must document and consider the Veteran’s own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran’s self-reported history, the examiner should so state and provide a complete explanation why this is so. a. For any skin condition identified during the claim period, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s condition developed in service or is otherwise causally related to service. b. The examiner should also opine whether it is at least as likely as not (50 percent probability or greater) that the skin condition was aggravated (worsened) by his service-connected IBS. Secondary service connection does not require “permanent” worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition’s natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiner must provide separate opinions and rationales for causation and aggravation. The examiner must provide separate opinions and rationales for causation and aggravation. 5. Obtain an addendum to the December 2019 VA sleep apnea examination. The examiner should be advised that prior examinations were deficient for failing to provide etiology opinions related to service which considered the Veteran’s self-reported history of symptoms in service or following service. The claims file must be reviewed inclusive of past examination reports, treatment records, and the Veteran’s statements and testimony. The examiner must document and consider the Veteran’s own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran’s self-reported history, the examiner should so state and provide a complete explanation why this is so. The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea developed in service or is otherwise causally related to service. In so doing, the examiner should address the Veteran’s testimony at his March 2018 hearing that he began having symptoms of sleep apnea in service, including that his bunk buddy in service and his former wife told him that he snored loudly, and that he sought treatment for a sleeping disorder approximately six months after service. The examiner should also opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea was aggravated (worsened) by his service-connected posttraumatic stress disorder (PTSD). Secondary service connection does not require “permanent” worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition’s natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiner must provide separate opinions and rationales for causation and aggravation. A complete rationale must be provided for all opinions rendered. 6. Obtain an addendum to the December 2019 VA joints examination. The examiner is to be advised that prior examinations were deficient for failure to provide opinions addressing whether identified conditions affecting the joints developed in service or were causally related to service. The claims file must be reviewed inclusive of past examination reports, treatment records, and the Veteran’s statements and testimony. The examiner must document and consider the Veteran’s own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran’s self-reported history, the examiner should so state and provide a complete explanation why this is so. The examiner should opine whether the Veteran has a chronic undiagnosed multi-symptom illness or fibromyalgia, including based on the Veteran’s complaints of pains in joints and muscles, fatigue, and gastrointestinal issues. The examiner should note the Veteran’s complaints and any findings and assessments in past treatment and examinations as well as in the Veteran’s March 2018 testimony. The examiner should specifically address the Veteran’s history of symptoms and past findings and conclusions in the December 2019 VA examination report addressing the question of fibromyalgia. Both for all affected joints taken together and separately for arthritis or other disability present in the neck, each hip, the left ankle, the elbows, the right hand, and any other joints for which the Veteran has complaints of symptoms (excluding disabilities specifically of the right ankle, the back, and the left hand for which service connection has already been granted), the examiner should provide an opinion addressing whether it is at least as likely as not (50 percent or greater probability) that the disability developed in service or is otherwise causally related to service, and whether arthritis in the joint was present within the first post-service year. The examiner must provide separate opinions and rationales for causation and aggravation. The examiner must provide separate opinions and rationales for causation and aggravation. 7. Thereafter, readjudicate the remanded claims. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechter 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.