Citation Nr: 21004885 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-41 387 DATE: January 28, 2021 REMANDED Service connection for diabetes mellitus is remanded. Service connection for obstructive sleep apnea is remanded. Service connection for urinary incontinence is remanded. Service connection for erectile dysfunction is remanded. Service connection for loss of use of the left leg is remanded. Service connection for loss of use of the right leg is remanded. A disability rating for asthma in excess of 10 percent prior to August 20, 2015 and in excess of 30 percent thereafter is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from August 2, 1989 to August 19, 1989 and from January 2002 to October 2002. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs Regional Office. This matter is being adjudicated under the legacy appellate framework. In the substantive appeal perfecting the matter to the Board, the Veteran indicated that he did not desire a personal hearing before the Board. These matters were previously before the Board, and, in June 2018, the Board remanded these matters for further development. Further development in substantial compliance with the Board’s previous remand instructions. 1. Service connection for diabetes mellitus is remanded. 2. Service connection for obstructive sleep apnea is remanded. At issue is whether the Veteran is entitled to service connection for diabetes mellitus and obstructive sleep apnea. The Veteran’s treatment records indicate that the Veteran was diagnosed with diabetes mellitus and sleep apnea, and that the Veteran is overweight. Unhealthy body weight may serve as a linking condition between claimed disability and a previously service-connected disability. See VAOPGCPREC 1-2017 (January 6, 2017). Both diabetes and obstructive sleep apnea are associated with being overweight. See Obesity, MedlinePlus Medical Encyclopedia, https://medlineplus.gov/obesity.html (last visited January 7, 2021); see also Sleep Apnea, MedlinePlus Medical Encyclopedia, https://medlineplus.gov/ sleepapnea.html (last visited January 7, 2021). The Veteran has been granted service connection for multiple disabilities that could of have contributed to the Veteran being overweight. See June 2020 Rating Decision Code Sheet. This is sufficient to trigger VA’s duty to assist, and this matter must be remanded for a VA examination to discuss these matters. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Service connection for urinary incontinence is remanded. 4. Service connection for erectile dysfunction is remanded. At issue is whether the Veteran is entitled to service connection for urinary incontinence and erectile dysfunction. Urinary incontinence and erectile dysfunction are known complications of diabetes mellitus. See Diabetes Complications, MedlinePlus Medical Encyclopedia, https://medlineplus.gov/ diabetescomplications.html (last visited January 7, 2021). As discussed above, the Veteran’s claim for service connection for diabetes mellitus is being remanded for a new VA examination. A new VA examination discussing the nature and etiology of the Veteran’s diabetes mellitus is reasonably likely to produce evidence that may support the Veteran’s claims for service connection for urinary incontinence and erectile dysfunction. Therefore, these matters must be remanded as well in order to avoid piecemeal appellate litigation. Harris v. Derwinski, 1 Vet. App. 180 (1991). 5. Service connection for loss of use of the left leg is remanded. At issue is whether the Veteran is entitled to service connection for loss of use of the left leg. The Veteran has been previously granted service connection for a number of disabilities including left knee instability and a meniscus tear with osteoarthritis of the left knee. See June 2020 Rating Decision Code Sheet. Assigning multiple disability ratings for the knee is possible. See VAOPGCPREC 23-97 (July 1, 1997); VAOPGCPREC 9-98 (August 14, 1998); VAOPGCPREC 9-2004 (September 17, 2004). Additionally, it is also important to note that loss of use of the leg could be due to disabilities other than the Veteran’s knee; such as orthopedic condition of the hip/thigh or a neurological condition of the lower extremity. See e.g. 38 C.F.R. §§ 4.71a, Diagnostic Codes 5250-5255; see also e.g. 4.124a, Diagnostic Codes 8512, 8612, & 8712. This, however, does not alleviate VA’s responsibility to ensure that the Veteran is not assigned multiple disability ratings for the same symptomology under various diagnoses; also known as the avoidance of pyramiding. 38 C.F.R. § 4.14. It is unclear from the record whether or not the Veteran has a leg disability that is manifesting symptomology distinct from the disabilities for which the Veteran has already been granted service connection. Therefore, this matter must be remanded for a VA examination in order to ensure that the evaluation of the Veteran’s claim is fully formed. Barr v. Nicholson, 21 Vet. App. 303 (2007). 6. Service connection for loss of use of the right leg is remanded. At issue is whether the Veteran is entitled to service connection for loss of use of the right leg. As discussed above, the Veteran’s claim for service connection for loss of use of the left leg is being remanded for a new VA examination. An examination of the nature and etiology of the loss of use of the left leg is reasonably likely to produce evidence that may support the Veteran’s claim for service connection for loss of use of the right leg. Therefore, this matter must be remanded as well in order to avoid piecemeal appellate litigation. See Harris. 7. A disability rating for asthma in excess of 10 percent prior to August 20, 2015 and in excess of 30 percent thereafter is remanded. At issue is whether the Veteran is entitled to a disability rating for asthma in excess of 10 percent prior to August 20, 2015 and in excess of 30 percent thereafter. The Veteran’s disability rating for asthma has increased since his most recent VA examination. This suggests that the Veteran’s most recent VA examination does not necessarily shed light on the current severity of the Veteran’s asthma, and this matter must be remanded for a new VA examination to discuss the current severity of the Veteran’s asthma. See Barr. The matters are REMANDED for the following action: 1. Arrange to provide the Veteran with a VA examination (or if necessary, a phone interview and a medical opinion based on the evidence of record) in order to discuss the following: (a.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between a current diagnosis of diabetes mellitus and an in-service incurrence? Why or why not? (b.) Is it at least as likely as not (50 percent or more) that the Veteran’s diabetes mellitus is proximately due to or aggravated by a previously service-connected disability? Why or why not? (c.) Is it at least as likely as not (50 percent or more) that any of the Veteran’s previously service-connected disabilities (or any combination thereof) caused the Veteran to become overweight or obese? Why or why not? (d.) Is it at least as likely as not (50 percent or more) that any obesity or weight problem cause by any of the Veteran’s previously service-connected disabilities (or any combination thereof) was a substantial factor in the Veteran developing diabetes mellitus? Why or why not? (e.) Is it at least as likely as not (50 percent or more) that, but for any obesity or weight problem caused by any of the Veteran’s previously service-connected disabilities (or any combination thereof), the Veteran would not have developed diabetes mellitus? Why or why not? 2. Arrange to provide the Veteran with a VA examination (or if necessary, a phone interview and a medical opinion based on the evidence of record) in order to discuss the following: (a.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between a current diagnosis of sleep apnea and an in-service incurrence? Why or why not? (b.) Is it at least as likely as not (50 percent or more) that the Veteran’s sleep apnea is proximately due to or aggravated by a previously service-connected disability? Why or why not? (c.) Is it at least as likely as not (50 percent or more) that any of the Veteran’s previously service-connected disabilities (or any combination thereof) caused the Veteran to become overweight or obese? Why or why not? (d.) Is it at least as likely as not (50 percent or more) that any obesity or weight problem cause by any of the Veteran’s previously service-connected disabilities (or any combination thereof) was a substantial factor in the Veteran developing sleep apnea? Why or why not? (e.) Is it at least as likely as not (50 percent or more) that, but for any obesity or weight problem caused by any of the Veteran’s previously service-connected disabilities (or any combination thereof), the Veteran would not have developed sleep apnea? Why or why not? 3. Arrange to provide the Veteran with a VA examination (or if necessary, a phone interview and a medical opinion based on the evidence of record) in order to discuss the following: (a.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between a urinary disorder and an in-service incurrence? Why or why not? (b.) Is it at least as likely as not (50 percent or more) that a urinary disorder is proximately due to or aggravated by a previously service-connected disability? Why or why not? (c.) Is it at least as likely as not (50 percent or more) that a urinary disorder is proximately due to or aggravated by the Veteran’s diabetes mellitus? Why or why not? (d.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between erectile dysfunction and an in-service incurrence? Why or why not? (e.) Is it at least as likely as not (50 percent or more) that erectile dysfunction is proximately due to or aggravated by a previously service-connected disability? Why or why not? (f.) Is it at least as likely as not (50 percent or more) that erectile dysfunction is proximately due to or aggravated by the Veteran’s diabetes mellitus? Why or why not? 4. Arrange to provide the Veteran with a VA examination (or if necessary, a phone interview and a medical opinion based on the evidence of record) in order to discuss the following: (a.) Is it at least as likely as not (50 percent or more) that the Veteran has a left leg disability other than the disabilities that the Veteran has already been granted service-connection for? Why or why not? Is so, then please identify the condition. (b.) If the answer to question (a.) is “yes,” then compare and contrast the symptoms of any disability identified in the answer to question (a.) and any left leg disability that the Veteran has already been granted service connection for. (c.) If the answer to question (a.) is “yes,” then is it at least as likely as not (50 percent or more) that a medical nexus exists between an in-service incurrence and the condition identified in the answer to question (a.)? Why or why not? (d.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between an in-service incurrence and a right leg condition? Why or why not? 5. Arrange to provide the Veteran with a VA examination (or if necessary, a phone interview and a medical opinion based on the evidence of record) in order to determine the current severity of the Veteran’s asthma. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Seaton 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.