Citation Nr: 21065947 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 15-39 190 DATE: October 28, 2021 ORDER The petition to reopen a claim for entitlement to a skin disability is granted. REMANDED Entitlement to service connection for an abdominal aneurysm, to include as due to exposure to herbicide agents, or as secondary to a service-connected disability is remanded. Entitlement to service connection for a left lower extremity aneurysm, to include as due to exposure to herbicide agents, or as secondary to a service-connected disability is remanded. Entitlement to service connection for a right lower extremity aneurysm, to include as due to exposure to herbicide agents, or as secondary to a service-connected disability is remanded. Entitlement to service connection for a skin disability, to include as due to exposure to herbicide agents, or as secondary to a service-connected disability is remanded. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability, is remanded. FINDINGS OF FACT 1. A July 2005 Board decision denied service connection for a skin disability. 2. Evidence associated with the claims file subsequent to the July 2005 Board decision was not previously submitted and raises a reasonable possibility of substantiating the claim for service connection for a skin disability. CONCLUSIONS OF LAW 1. The July 2005 Board decision is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. New and material evidence sufficient to reopen the claim of service connection for a skin disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to October 1970, and from December 1970 to March 1972. The Veteran testified before a Veterans Law Judge (VLJ) in January 2019. A transcript of that hearing is of record and associated with the claims file. However, the VLJ who presided over the hearing is no longer employed at the Board. In an August 2021 letter, the Veteran was provided with the opportunity to request a new hearing; however, he failed to respond to the letter. The letter noted that if the Veteran did not respond within 30 days from the date of the letter, the Board would assume that he did not want another hearing and proceed accordingly. As such, the Board may proceed on the appeal. This case was previously before the Board in June 2019 when the issues listed above were remanded for additional development. An additional service connection claim for a left eye disability was remanded at that time. While on remand, the Regional Office (RO) granted service connection for glaucoma, right and left eye in a March 2021 rating decision. This issue is no longer before the Board. A March 2021 supplemental statement of the case was most recently issued, and the above-identified claims are once again before the Board. 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a skin disability. The evidence of record in the July 2005 Board decision consisted of the Veteran's service treatment records, lay statements from the Veteran and outpatient treatment records. The Board denied the Veteran's claim. Evidence received since the Board decision includes additional lay statements from the Veteran, treatment records, and testimony provided at a January 2019 BVA hearing. The Board finds that the evidence is new because it was not previously submitted to VA decision makers and it is material because it goes to corroborating an element for service connection, specifically, a nexus to service. The evidence is sufficient to satisfy the low bar of new and material evidence. The claim for service connection for skin disability is reopened. REASONS FOR REMAND 1. Entitlement to service connection for an abdominal aneurysm, to include as due to exposure to herbicide agents, or as secondary to a service-connected disability is remanded. 2. Entitlement to service connection for a left lower extremity aneurysm, to include as due to exposure to herbicide agents, or as secondary to a service-connected disability is remanded. 3. Entitlement to service connection for a right lower extremity aneurysm, to include as due to exposure to herbicide agents, or as secondary to a service-connected disability is remanded. 4. Entitlement to service connection for a skin disability, to include as due to exposure to herbicide agents, or as secondary to a service-connected disability is remanded. 5. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability is remanded. The Veteran was provided VA opinions in February 2021 for his aneurysm and sleep apnea claims, and in December 2019 for his skin disability claim. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). With respect to his abdominal aneurysm, left lower extremity aneurysm, and right lower extremity aneurysm claims, several opinions were obtained in February 2021. A negative direct opinion to service was provided but the rationale supporting this opinion was not adequate and was contradictory. Additionally, the requested secondary service connection opinions, requested in the June 2019 Board remand, were not provided. Stegall v. West, 11 Vet. App. 268, 271 (1998). With respect to his claim for sleep apnea, the Veteran was provided a February 2021 opinion. The VA examiner was instructed to consider the Veteran's reports of having trouble waking up, daytime drowsiness, and falling asleep during the day during active duty. A negative opinion was provided. Although the examiner noted that complaints of snoring are common in patients with obstructive sleep apnea, she noted that it would be mere speculation to assume Veteran had sleep apnea in service. The Board does not find the examiner's opinion is adequate. Further, the Veteran, through his representative, now alleges that his sleep apnea could be due to his service-connected diabetes mellitus or psychiatric disability. See August 2021 Written Brief Presentation. The Board finds that secondary service connection opinions are also needed. With respect to the Veteran's claim for a skin disability, the Veteran was provided a December 2019 VA examination. The examiner provided a negative opinion, primarily based on the fact that the Veteran had not been treated for a skin condition in service. The secondary service connection opinions provided contained inadequate rationale and did not fully address the concerns raised in the prior Board remand. The Board finds that a remand is necessary to provide the Veteran with adequate medical opinions. Further, the Veteran has challenged the competency of the VA examiner. To challenge the competency of the medical examiner, a claimant is required to raise this challenge in the first instance. Francway v. Wilkie, 940 F.3d 1304 (2019). Once the claimant has met this requirement and the challenge is raised, VA must satisfy its burden of persuasion as to the examiner's qualifications and respond to the challenge by providing information about the qualifications of a medical examiner to the veteran. See id. In the August 2021 Written Brief Presentation, the Veteran's representative challenged the competency of the February 2021 VA examiner. The Veteran's representative stated that VA failed to consider and discuss the nurse practitioner's competence to offer the requested opinions, and VA failed to address other deficiencies in the examiner's opinions as explained in his statement. Here, the claims file includes no indication the Veteran was provided with information regarding the examiner's qualifications. The matters are REMANDED for the following actions: 1. Forward the record and a copy of this remand to a different examiner than the one that completed the February 2021 examination for completion of addendum opinions. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's abdominal aortic aneurysm, right lower leg aneurysm, and/or left lower leg aneurysm had their onset during his active service or are otherwise etiologically related to the Veteran's service, specifically to include his presumed in-service exposure to herbicide agents. Rationale must be provided for the opinions proffered. (b.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's abdominal aortic aneurysm, right lower leg aneurysm, and/or left lower leg aneurysm are proximately due to or the result of his service-connected disabilities, specifically, to include his service-connected coronary artery disease (CAD). Rationale must be provided for the opinions proffered. (c.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's abdominal aortic aneurysm, right lower leg aneurysm, and/or left lower leg aneurysm were aggravated beyond natural progression by his service-connected disabilities, specifically to include his service-connected CAD. Rationale must be provided for the opinions proffered. 2. Forward the record and a copy of this remand to a different examiner than the one that completed the December 2019 examination for completion of addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a skin disability that had its onset during his active service or is otherwise etiologically related to the Veteran's service, specifically to include his presumed in-service exposure to herbicide agents. Rationale must be provided for the opinion proffered. (b.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a skin disability that is proximately due to, or the result of, his service-connected disabilities, specifically, to include his service-connected diabetes mellitus, type II. Rationale must be provided for the opinion proffered. (c.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a skin disability that was aggravated beyond natural progression by his service-connected disabilities, specifically to include his service-connected diabetes mellitus, type II. Rationale must be provided for the opinion proffered. 3. Forward the record and a copy of this remand to a different examiner than the one that completed the February 2021 examination for completion of addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran has sleep apnea that had its onset during the Veteran's service or is otherwise etiologically related to the Veteran's service, to include his reports of having trouble waking up, daytime drowsiness, and falling asleep during the day during his active service. Rationale must be provided for the opinion proffered. (b.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a sleep apnea that is proximately due to, or the result of, his service-connected disabilities, specifically, to include his service-connected diabetes mellitus, or posttraumatic stress disorder (PTSD) with history of schizophrenic reaction, paranoid type. Rationale must be provided for the opinion proffered. (c.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a sleep apnea that was aggravated beyond natural progression by his service-connected disabilities, specifically to include his service-connected diabetes mellitus, or PTSD with history of schizophrenic reaction, paranoid type. Rationale must be provided for the opinion proffered. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.