Citation Nr: 21065023 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 11-26 642A DATE: October 22, 2021 REMANDED 1. Entitlement to a rating in excess of 10 percent for a right knee disorder is remanded. 2. Entitlement to service connection for a bladder disorder with voiding dysfunction is remanded. 3. Entitlement to service connection for diabetes mellitus type 2 is remanded. 4. Entitlement to service connection for erectile dysfunction is remanded. 5. Entitlement to service connection for bilateral neuropathy of the hands is remanded. 6. Entitlement to service connection for bilateral neuropathy of the feet is remanded. 7. Entitlement to service connection for a vision disorder is remanded. REFERRED The issue of whether there was clear and unmistakable error (CUE) in the August 2009 rating decision that continued a 10-percent rating for chondromalacia patella femoral pain syndrome of the right knee is referred to the agency of original jurisdiction (AOJ) for appropriate action. The Board referred this matter for initial AOD development in April 2021, which was not completed. REASONS FOR REMAND The Veteran served on active duty from October 1958 to October 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of August 2009. In September 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded this matter for additional development in February 2019 and April 2021, which has not been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a rating in excess of 10 percent for a right knee disorder is remanded. The Veteran contends that he is entitled to an increased rating for his right knee disorder. The Board notes that this claim was remanded in April 2021 for additional development. Specifically, the Board requested an addendum VA medical opinion of the Veteran's right knee disorder. The examiner was directed to provide an estimate regarding the Veteran's right knee flare-ups. At his July 2021 VA examination, the Veteran reported that his knee pain has worsened over the years and hurts mostly in cold weather, when it is cloudy and rainy. The Veteran also indicated that he "barely go[es] to the basement because 13 stairs will kill me." The examiner determined that the Veteran had an active range of motion (ROM), observed repetitive use ROM, and repeated use over time ROM of 0 to 90 degrees. The VA examiner noted that the Veteran denied flare-ups and opined that the procured evidence, including statements from the Veteran, do not suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with flare-ups. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The VA also has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist includes providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159(c)(4). Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The April 2021 Board Decision ordered the examiner on remand to consider the Veteran's functional loss during flare-ups. Although the July 2021 VA examiner noted that the Veteran "denies flare-ups," there appears to be record evidence of flare-ups and/or functional impairment with repeated use over time, as noted above with respect to the Veteran's competent reporting. In rendering his or her opinion, the examiner should consider the Veteran's lay reports. See Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). The July 2021 VA opinion fails to consider or address the Veteran's contentions at his Board hearing or otherwise. Based on the examiner's failure to address the Veteran's competent reports of knee pain and functionality, there was not substantial compliance with the Board's remand instructions, so the Board must remand this matter for an addendum VA medical opinion that addresses all the evidence of record. The August 2009 rating decision continued the 10-percent rating for the right knee. The September 2009 VA notification letter concerning the August 2009 rating decision informed the Veteran, on the one hand, that it had been determined that the right knee disability had not changed, and that the compensation payment would continue unchanged, and, on the other hand, that the percentage assigned for the right knee disability was 30 percent. The Veteran argued in his hearing testimony of September 2018 that the notification letter's reference to a 30-percent rating represents a "procedural error or clear and unmistakable error" in the rating decision of August 2009 and requires that a 30-percent rating be established from the date of the April 2009 claim for rating increase. An assertion of clear and unmistakable error (CUE) in a rating decision is a motion or request, not a claim. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a); see also Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011), aff'd 695 F.3d 1257 (Fed. Cir. 2012). Because the CUE issue still has not been adjudicated by AOJ, the Board will refer it to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). 2. Entitlement to service connection for a bladder disorder with voiding dysfunction is remanded. The Veteran contends that his bladder disorder was incurred in or caused by an in-service injury, event or illness. Specifically, the Veteran testified before the Board that, during service, he often "bounced around" in, and, jumped off of the back of a truck and had a concussion caused by his firing of a 105 mm Howitzer. He stated that his bladder problems began during service and have continued to the present. The Veteran underwent a VA examination for urinary tract conditions in July 2021. The diagnosis was benign prostatic hyperplasia (BPH), which was noted to be asymptomatic and treated with Tamsulosin. The Veteran related that, he does not have any dribbling, difficulty starting urination, or increased frequency in urination so long as he takes his medication. The examiner found him not to have a voiding dysfunction, a history of urethral or bladder calculi, a history of recurrent symptomatic bladder or urethral infections, or other bladder or urethral conditions. The VA examiner offered a negative nexus opinion, noting that the Veteran's service treatment records do not include a diagnosis or treatment for BPH. The examiner noted that risk factors for BPH include older age, family history, diabetes mellitus, heart disease and lifestyle. Specifically she noted that men older than 40 are more likely to have BPH and that obesity is a significant risk factor for BPH. "The claimant's history is significant for obesity, DM, diastolic dysfunction and older than 40". The examiner noted that "[j]umping off and bouncing inside trucks" may cause body injury, not an enlarged prostate. No further rationale was provided. A VA examination and medical opinion must be adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board considers the July 2021 opinion to be inadequate for the following reasons. In finding a current bladder disorder to be less likely than not incurred during service, the examiner reasoned, in part, that the "service treatment records [are] negative for diagnosis or treatment for BPH." There was no acknowledgement that a VA treatment record of April 2020 lists urinary frequency as an active problem that was diagnosed in July 2005 and that a VA ultrasound record of July 2020 notes a poorly distended urinary bladder. Adjudication of the claim requires a VA addendum opinion that fully accounts for the medical history and is adequate for evaluation purposes. 38 C.F.R. §§ 4.2, 19.9(a). In addition, the examination report failed to consider the Veteran's testimony before the Board that he "uses the washroom a lot," that he gets up to go to the bathroom between two and four time per night, and that he "can't say how many times" he uses the bathroom during the day. The Veteran's lay reports should have been acknowledged and considered, even if the report of the Veteran at the examination was that his voiding was currently normal. See Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). The requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal. See McClain v. Nicholson,21 Vet. App. 319, 321(2007). The Board's August 2021 remand required that the Veteran's testimony be considered and discussed by a medical professional with appropriate expertise in arriving at a nexus opinion for a bladder condition. The remand also stated that, if there were a medical basis to support or doubt the history provided by the Veteran, the clinician was to note it and provide a rationale for the opinion. Because there was not substantial compliance with this directive, a remand is required pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Entitlement to service connection for diabetes mellitus type 2 is remanded. 4. Entitlement to service connection for erectile dysfunction is remanded. 5. Entitlement to service connection for bilateral neuropathy of the hands is remanded. 6. Entitlement to service connection for bilateral neuropathy of the feet is remanded. 7. Entitlement to service connection for a vision disorder is remanded. The Veteran most recently underwent a VA examination for diabetes mellitus in July 2021. The examiner rendered a negative opinion that the Veteran's diabetes mellitus 2 was incurred in or caused by an in-service injury, event, or illness. The examiner noted that the Veteran's service records are silent for a diagnosis of diabetes mellitus or its symptoms. The Veteran was diagnosed with diabetes mellitus in 2000, about 40 years after service. The examiner noted that risk factors for type 2 diabetes include "obesity, inactivity, family history, race (African American, Hispanic/Latino), older age, hyperlipidemia." The examiner also noted the Veteran's medical history includes "obesity, older age, hyperlipidemia and African American." Due to these risk factors, she found that it is less likely than not that the Veteran's diabetes mellitus was incurred in service or manifested within a year of separation. Additionally, the examiner found that the Veteran's diabetic peripheral neuropathy and erectile dysfunction are secondary to the Veteran's diabetes mellitus. The examiner did not render any opinion as to the Veteran's vision disorder, including dry eyes. A VA examination and medical opinion must be adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board considers the medical opinion of the July 2021 VA examiner for diabetes to be inadequate because the examiner failed to consider the evidence of record. The examiner indicated that obesity is a risk factor for diabetes and noted that the Veteran's service records were silent for treatment of diabetes mellitus. However, the examiner did consider the significant weight gain the Veteran experienced in service in rendering her opinion. The Veteran's October 1958 induction noted his weight of 160 pounds and at his separation less than two years later, he weighed 193 pounds. Based on the examiner's failure to adequately address and opine on the medical evidence of record, there was not substantial compliance with the Board's remand instructions, so the Board must remand this matter for an addendum VA medical opinion that addresses all the evidence of record. The claims of entitlement to service connection for peripheral neuropathy of the hands and feet, erectile dysfunction, and a vision disorder must also be remanded as being inextricably intertwined with the claim relating to diabetes mellitus. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Undertake appropriate development to associate with the record any outstanding VA treatment records and any outstanding and identified private medical records that are pertinent to the remanded issues. All efforts to obtain the records should be documented in the claims folder. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability. The examiner must fully describe the knee disability and report all signs and symptoms necessary for evaluating the knee disability under the rating criteria, including as to any right knee instability. To the extent possible, the examiner must test the Veteran's range of motion with pain on active motion, passive motion, with weight-bearing, and without weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary or medically appropriate in this case, the examiner should explain why. The examiner must attempt to elicit information from the Veteran regarding the severity, frequency, and duration of any right knee flare-ups and with repeated use over time, and the degree of functional loss during flare-ups and with repeated use over time. The examiner must estimate the effect of any functional losses during flare-ups and with repetitive use over time, including due to pain, incoordination, lack of endurance, weakness, and fatigability, by equating the disability experienced due to all such losses to loss of motion (stated in degrees) beyond what is shown clinically. The additional functional impairment must be expressed in terms of the degree of additional loss of range of motion to the extent possible. Notify the examiner that VA regulations anticipate that examiners, in providing an opinion as to any additional functional loss during flare-ups or with repetitive use over time, will make estimates based on information procured from relevant sources, including lay statements from a veteran which, in this case, includes lay statements made at a September 2018 Board Hearing. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. This includes ascertaining by alternative means such information as the frequency, duration, characteristics, severity, or functional loss during flare-ups and/or with repetitive use over time. If it is not possible to provide a specific measurement or an opinion regarding flare-ups, repetitive use over time, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge, a deficiency in the record (additional facts are required), or the fact that the examiner does not have the knowledge or training. Notify the examiner that the fact that an examination is not occurring during a flare-up or after repeated use over time is an insufficient reason for not providing an estimate of functional loss during a flare-up or after repeated use over time. 3. Obtain an opinion from an appropriate clinician to determine the nature and etiology of any bladder disorder. An additional VA examination may be scheduled if needed to provide the requested opinion. The clinician must identify all bladder disorders or recurrent bladder symptoms at any time since the Veteran's claim was filed in May 2009, even if now resolved. The clinician must opine as to whether any such disorder at least as likely as not: a. Is related to an in-service disease, injury, or event; b. Had its inception during service; or c. Is proximately due to, or aggravated beyond its natural progression by, a service-connected disability or any other disorder, to include diabetes mellitus and/or benign prostatic hyperplasia, and to include medication taken for diabetes mellitus type 2. The clinician must consider and discuss the Veteran's testimony before the Board in September 2018 as to the onset and history of his experienced bladder symptoms. If the Veteran's medical history indicates that a diagnosis relating to the bladder has changed, the clinician must discuss the prior diagnosis or diagnoses of record and offer an opinion as to whether any later finding represents the progression of a prior diagnosis, a correction of an error in the prior diagnosis, or the development of a new and separate disorder. Notify the clinician that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Notify the clinician that a layperson, such as the Veteran, is generally competent to attest to matters of which he or she has first-hand knowledge, including observable symptomatology. This evidence should be taken into account when answering the questions presented. If the clinician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the clinician shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. 4. Obtain an opinion from an appropriate clinician to determine the nature and etiology of the Veteran's diabetes mellitus type 2. An additional VA examination may be scheduled if needed to provide the requested opinion. The examiner must opine as to whether any such disorder at least as likely as not: a. Had its onset during service or is otherwise related a disease, injury, or event of service; or b. Manifested within one year after discharge from service, or manifested with symptoms that were noted during service with continuity of the same symptomatology since service. The examiner must consider the Veteran's in-service weight increase in rendering his or her decision. The examiner must also opine as to whether it is at least as likely as not that one or more of the following disorders is proximately due to, or aggravated beyond its natural progression by, the Veteran's diabetes mellitus type 2 or by any other disorder, to include medication taken for diabetes mellitus type 2: a. peripheral neuropathy of the upper extremities; b. peripheral neuropathy of the lower extremities; c. bladder condition; d. erectile dysfunction; and/or e. vision disorder, to include probably dry eyes. Notify the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Notify the examiner that the Veteran, as a layperson, is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. This evidence should be taken into account when answering the questions presented. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. 5. Following the above development and any other warranted development, readjudicate the issues on appeal, and address the CUE claim for the Veteran's right knee condition. If any benefit sought remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. After the Veteran has had the requisite opportunity to respond, return the appeal to the Board for appellate review, if otherwise in order G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.