Citation Nr: 21063407 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 10-44 345 DATE: October 14, 2021 REMANDED Entitlement to service connection for residuals of myofibroblastic sarcoma of the left calf, to include as due to contaminated water exposure at Camp Lejeune, and as secondary to service-connected disabilities, is remanded. Entitlement to service connection for benign prostatic hyperplasia (BPH) with frequent urination, to include as secondary to service-connected type two diabetes mellitus, is remanded. Entitlement to service connection for peripheral edema, to include as secondary to service-connected type two diabetes mellitus and hypertension, is remanded. REASONS FOR REMAND The Veteran served in the United States Marine Corps on active duty from August 1978 to April 1993. The issues come before the Board of Veterans' Appeals (Board) on appeal from October 2009 and February 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The issues were previously before the Board in July 2015 and November 2016. The Board remanded for further development. In June 2018, the Board denied the Veteran's claims of entitlement to service connection for myofibroblastic sarcoma of the left calf, with residual scar, and BPH with frequent urination. Additionally, the Board remanded the Veteran's claim for service connection for peripheral edema. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In July 2019, the Court granted a Joint Motion for Partial Remand (JMPR). The Court found that VA failed to fulfill its duty to assist to obtain outstanding treatment records and provide an adequate statement of reasons and bases including analysis of materially favorable evidence to the Veteran. Pursuant to the JMPR, the Court vacated and remanded the matter to the Board. In December 2019, the Board remanded to obtain outstanding VA medical records and to provide new VA examinations. Although the Board regrets further delay, another remand is necessary to provide the Veteran with every possible consideration in accordance with the Court's Order. Further development is necessary prior to appellate review to make reasonable efforts to obtain medical treatment records, and to provide the Veteran with adequate VA medical opinions. The Board notes the Veteran's representative raised the issue of a total disability rating due to individual unemployability in the September 2021 Informal Hearing Presentation. The Veteran's representative noted the Veteran met the schedular rating in 2009 and stopped working in December 2015. Further, the Veteran's representative requested the Board refer this to the RO for development and adjudication. The Board does not have jurisdiction over this claim, and it is referred to the AOJ for appropriate action, to include sending the Veteran proper VCAA notice under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159 informing the Veteran of what is needed to substantiate a claim for TDIU. 1. Entitlement to service connection for residuals of myofibroblastic sarcoma of the left calf, to include as due to contaminated water exposure at Camp Lejeune, and as secondary to service-connected disabilities, is remanded. The Veteran contends that his current residuals of myofibroblastic sarcoma of the left calf are related to his period of service, including as secondary to service-connected disabilities and exposure to contaminated water while stationed at Camp Lejeune. The Board must consider all theories of entitlement either expressly raised by the claimant or which are reasonably raised by the record. See Robinson v. Shinseki, 557 F.3d 1355, 1362 (Fed. Cir. 2009). Further, VA has a duty to provide the veteran a thorough medical examination, one which takes into account the veteran's prior medical history and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is fully informed. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A VA examination must contain clear conclusions with supporting data, and a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The RO provided a VA medical opinion addressing the Veteran's left calf myofibroblastic sarcoma in February 2016. The VA examiner provided the opinion that it was less likely than not that the Veteran's current diagnosis of low grade fibrosarcoma was related to his in-service diagnosis of plantar fibromatosis. The VA examiner noted agreement with the medical opinion provided in the January 2010 examination which concluded the Veteran's fibroblastic sarcoma of the left calf was a distinct and separate clinical entity, unrelated, nor aggravated by the Veteran's service-connected fibromatosis of the left foot. The February 2016 VA examination noted the Veteran's fibrosarcoma was not one of the 15 conditions recognized by VA as diseases associated with exposure to contaminants in the water supply at Camp Lejeune. The VA examiner did not provide any additional rationale. The February 2016 VA medical opinion provided a conclusory secondary service connection opinion without clear supporting rationale. While the Board acknowledges the VA examiner's rationale that the Veteran's sarcoma of the left calf and left foot are distinct and separate clinical and pathological entities provides insight to the Veteran's claim of direct service connection, the January 2010 and February 2016 medical opinions merely provided a restatement of the requested medical opinion to demonstrate that the Veteran's left calf sarcoma was not secondary to the Veteran's service-connected condition. Accordingly, the Board finds the February 2016 and January 2010 VA examinations to be inadequate to fully address the Veteran's service connection claim. Further, in the Veteran's September 2021 Informal Hearing Presentation, the Veteran's representative raised the contention that the Veteran's myofibroblastic sarcoma is secondary to the Veteran's service-connected type two diabetes mellitus. The Veteran's representative provided citations to medical literature in support of the Veteran's claim. Upon remand, the Veteran's claim to entitlement to service connection must include development of the Veteran's contention that his myofibroblastic sarcoma is associated with his diagnosis of type two diabetes mellitus. Finally, the Board recognizes the November 2017 VA examination addressing the etiology of the Veteran's left calf fibrosarcoma as it relates to the Veteran's exposure to contaminated water while at Camp Lejeune. Although the November 2017 VA examiner provided a thorough discussion of the etiology of the Veteran's myofibroblastic sarcoma and the chemicals associated with contaminated water at Camp Lejeune, the examiner provided no further discussion of the Veteran's condition as secondary to the Veteran's service-connected conditions. Thus, remand is required to provide a VA medical opinion that fully and adequately addresses the Veteran's medical history and the etiology of the Veteran's left calf myofibroblastic sarcoma and residuals, to include as secondary to the Veteran's service-connected disabilities. 2. Entitlement to service connection for BPH with frequent urination, to include as secondary to service-connected type two diabetes mellitus, is remanded. The Veteran contends that he suffers from BPH with frequent urination secondary to his diagnosis of type two diabetes mellitus. A remand confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Id. The July 2019 JMPR identified the Veteran's private physician's statement regarding the Veteran's diagnosis of type two diabetes mellitus, provided February 2009. The private physician remarked that secondary conditions associated with the Veteran's diagnosis of type two diabetes mellitus include diabetic retinopathy, BPH, open angle glaucoma, and hypertension. Pursuant to the JMPR, remand is required to provide the Veteran a medical opinion addressing the Veteran's BPH secondary to the Veteran's service-connected diagnosis of type two diabetes mellitus, as identified in the February 2009 treatment record. Additionally, the July 2019 JMPR and subsequent December 2019 Board remand identified medical treatment records, specifically, the Veteran's August 2016 VA radiology report, August 2015 private urology report, and December 2004 VA MRI consultations, possessed by VA through the Veterans Health Information Systems and Technology Architecture (VistA), which VA failed to obtain and associate with the Veteran's claims file. As records stored in VistA are in the custody of the federal government, VA has a duty to make reasonable efforts to obtain the Veteran's medical treatment records. 38 C.F.R. § 3.159(c). Accordingly, VA shall make as many requests as are necessary to obtain relevant records in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c)(ii)(2). The record does not contain the medical treatment records, identified in the July 2019 JMPR. While the record contains the Subsequent Development Letter, requesting the Veteran's general release for private medical provider information, documentation of reasonable efforts to retrieve the VistA records identified in the Board remand, have not been created and added to the record. Further, the RO did not provide notice that the outstanding records at issue do not exist or further efforts to obtain them would be futile. Here, remand is required to fulfill VA's duty to request and obtain the Veteran's outstanding records. 3. Entitlement to service connection for peripheral edema, to include as secondary to service-connected type two diabetes mellitus and hypertension, is remanded. Pursuant to the Board remand, the RO provided a VA examination to address the Veteran's peripheral edema in June 2020. The VA examiner noted the Veteran's service treatment records did not demonstrate the Veteran experienced edema while in service. The VA examiner provided the opinion that the Veteran's claimed condition was less likely than not incurred in or caused by an in-service injury, event, or illness. Additionally, the VA examiner opined that the Veteran's claimed edema was less likely than not proximately due to or aggravated by the Veteran's service-connected type two diabetes mellitus. The examiner concluded that no diabetic medication causes peripheral edema, and diabetes is not shown to aggravate edema. The RO provided an addendum examination and medical opinion in September 2020. The VA examiner provided the opinion that, per the April 2019 VA examination, the Veteran did not have a current diagnosis of peripheral edema. The RO requested a clarifying opinion from the VA examiner in February 2021, regarding the Veteran's medical history of peripheral edema. The VA examiner reported the Veteran's peripheral edema was noted in the Veteran's 2009 medical treatment records associated with the Veteran's myofibroblastic sarcoma of the left calf and its removal. The VA examiner stated the Veteran's peripheral edema had resolved. Further, the examiner concluded the Veteran's peripheral edema of the left lower extremity was not caused by the Veteran's service-connected hypertension or diabetes mellitus. The examiner stated hypertension and diabetes mellitus are not known to result in significant peripheral edema. The VA examiner provided a subsequent addendum medical opinion addressing the etiology of the Veteran's peripheral edema in April 2021. The VA examiner provided the medical opinion that it was less likely than not that the Veteran's peripheral edema was proximately due to or the result of the Veteran's hypertension or type two diabetes. The examiner cited to medical literature and stated that no credible medical evidence supports a causal link between diabetes mellitus and peripheral edema. The Board must consider all theories of entitlement reasonably raised by the record. See Robinson, 557 F.3d at 1362. If the evidence of record does not contain sufficient competent medical evidence to decide the claim, VA must provide a medical opinion that adequately addresses competent material evidence favorable to the claim. 38 C.F.R. § 3.159(c)(4); Barr, 21 Vet. App. at 312. Additionally, the opinion must be adequately supported and explained. Nieves-Rodriguez, 22 Vet. App. at 304. Here, the September 2020 VA examination and subsequent February 2021 and April 2021 addendum opinions failed to adequately address or support any finding regarding the Veteran's claimed peripheral edema beyond conclusory statements. Notably, the April 2021 addendum provided an inadequate inconsistent medical conclusion, that peripheral edema has no association with hypertension, while citing to medical literature which stated peripheral edema of the legs is often due to pulmonary hypertension. Further, the Board emphasizes that service connection may be warranted if evidence shows a disability was present at any point during the claim period. See McClain v. Nicholson, 21 Vet. App. 319 (2007). VA has not provided medical opinions regarding the Veteran's noted peripheral edema identified in the Veteran's medical treatment record as recent as February 2018, as the examiner reported the Veteran's condition had resolved. The Board notes the Veteran's VA medical records throughout the period on appeal show multiple reports of edema of the Veteran's legs. Thus, remand is required to provide the Veteran a new examination and medical opinion, with adequate rationales in support, to address the nature and etiology of the Veteran's peripheral edema for the entire period on appeal, to include as secondary to the Veteran's service-connected hypertension and type two diabetes mellitus. Id. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's electronic claims file any outstanding treatment records relevant to the Veteran's claims; notably (1) the August 2016 VA radiology report, (2) the August 2015 private urology report, and (3) the December 2004 VA MRI consultations, identified as possessed by VA through the Veterans Health Information Systems and Technology Architecture (VistA). The RO must document all attempts to obtain these identified in the JMPR. Once received, associate all records with the claims file. If the Veteran's outstanding records are unavailable, follow the procedures set forth in 38 C.F.R. § 3.159(e) regarding VA's duty to notify the claimant of the inability to obtain records. 2. Obtain a medical opinion, preferably from the VA examiner who provided the November 2017 examination, regarding the Veteran's residuals of myofibroblastic sarcoma of the left calf, or, if not available, another appropriately qualified VA medical professional. If the examiner determines that an examination is needed to provide the requested opinion, then such examination should be scheduled and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The claims file should be reviewed in conjunction with the examination. A copy of this remand should be made available to the examiner. Following a review of the evidence of record, to include the Veteran's lay statements of the onset and continuity of symptoms of his condition, the examiner must opine as to: a. Whether it is at least as likely as not (50 percent probability or more) that the Veteran's myofibroblastic sarcoma of the left calf and residuals, had its onset during or is otherwise etiologically related to active-duty service, to include as due to exposure to chemicals associated with contaminated water while stationed at Camp Lejeune. If no direct service connection is found, please provide a medical opinion addressing the Veteran's myofibroblastic sarcoma of the left calf as secondary to the Veteran's service-connected disabilities, including type two diabetes mellitus, peripheral arterial disease and fibrous soft tumor of the left foot. Please opine as to: b. Whether it is at least as likely as not (50 percent probability or more) the Veteran's sarcoma of the left calf and residuals, was proximately caused by, or the result of, the Veteran's service-connected disabilities, including type two diabetes mellitus, peripheral arterial disease, hypertension, and fibrous soft tumor of the left foot. c. Whether it is at least as likely as not (50 percent probability or more) the Veteran's sarcoma of the left calf and residuals, was aggravated by the Veteran's claimed service-connected disabilities, including type two diabetes mellitus, peripheral arterial disease, hypertension, and fibrous soft tumor of the left foot. For the purposes of the examination, the VA examiner must address the medical literature cited in the September 2021 Informal Hearing Presentation. The examiner must provide a comprehensive report, including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. 3. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of the Veteran's benign prostatic hyperplasia (BPH) with frequent urination. The record and a copy of this Remand must be made available to the examiner. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Following a review of the evidence of record, the examiner must opine as to: a. Whether it is at least as likely as not (50 percent probability or more) the Veteran's BPH with frequent urination was proximately caused by, or the result of the Veteran's service-connected type two diabetes mellitus, including as a result of treatment and/or medication taken for any service-connected disability. b. Whether it is at least as likely as not (50 percent probability or more) the Veteran's BPH with frequent urination was aggravated by the Veteran's service-connected type two diabetes mellitus, including as a result of treatment and/or medication taken for any service-connected disability. For the purposes of this examination, the examiner must address the Veteran's February 2009 diagnostic report noting secondary conditions to type two diabetes mellitus, including BPH. Additionally, the examiner must address the medical literature cited in the September 2021 Informal Hearing Presentation. The examiner must provide a comprehensive report, including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. 4. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of the Veteran's peripheral edema. The record and a copy of this Remand must be made available to the examiner. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Following a review of the evidence of record, the examiner must opine as to: a. Whether it is at least as likely as not (50 percent probability or more) the Veteran's peripheral edema was proximately caused by, or the result of the Veteran's service-connected disabilities, including type two diabetes mellitus, peripheral arterial disease, and hypertension. b. Whether it is at least as likely as not (50 percent probability or more) the Veteran's peripheral edema was aggravated by the Veteran's service-connected disabilities, including type two diabetes mellitus, peripheral arterial disease, and hypertension. For the purposes of this examination, the examiner must address the medical literature regarding the manifestations of edema in adults, cited in the April 2021 VA addendum medical opinion. The examiner must provide a comprehensive report, including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, Associate Counsel 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.