Citation Nr: 21070374 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 18-36 967 DATE: November 23, 2021 REMANDED Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for a bilateral eye disorder, to include as secondary to diabetes mellitus is remanded. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as secondary to diabetes mellitus is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as secondary to diabetes mellitus is remanded. Entitlement to service connection for a skin disorder, including dermatitis, is remanded. Entitlement to service connection for a heart disorder, including coronary artery disease, is remanded. Entitlement to service connection for painful joints, including knees and feet, is remanded. Entitlement to service connection for a right foot disorder, including plantar fasciitis, is remanded. Entitlement to service connection for a left foot disorder, including plantar fasciitis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1958 to September 1961. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision. In February 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the claims file. In a June 2020 decision, the Board reopened the previously denied claims for service connection for coronary artery disease, diabetes mellitus, painful joints (previously claimed as arthritis), and a skin disorder based on the submission of new and material evidence. The Board remanded the underlying claims, as well as the other claims on appeal for additional evidentiary development, including VA examinations and for outstanding private treatment records. See BVA Decision (June 2020). In a July 2020 letter, the Veteran was notified that he needed to complete and return the enclosed VA Form 21-4142 and VA Form 21-4142a in order for the RO to obtain his private treatment records, but no response has been received. In addition, VA examinations and medical opinions were obtained in February 2021. As explained below, the February 2021 VA medical opinions do not substantially comply with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998), D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Additional development is also needed with respect to the other remaining issues on appeal. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. Indeed, the Board expressly defers a credibility determination in this appeal until the development has been completed to the extent feasible. 1. Entitlement to service connection for diabetes mellitus is remanded. 2. Entitlement to service connection for a bilateral eye disorder, to include as secondary to diabetes mellitus is remanded. 3. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus is remanded. 4. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus is remanded. 5. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as secondary to diabetes mellitus is remanded. 6. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as secondary to diabetes mellitus is remanded. 7. Entitlement to service connection for a heart disorder is remanded. 8. Entitlement to service connection for a skin disorder is remanded. The Veteran's representative has asserted that the Veteran was exposed to herbicide agents at Fort Leonard Wood, Missouri during his active duty service in the United States Army. Although the Veteran testified that he does not recall whether herbicide agents were present or if he observed any areas without vegetation while he was stationed at Fort Leonard Wood, he nonetheless contend that his diabetes mellitus, heart disorder, hypertension, eye disorder, skin disorder and erectile dysfunction are result of exposure to herbicide agents. See Hearing Transcript (February 2020). In support of this contention, the Veteran's representative submitted an article that references an exact from a Department of Defense (DOD) report entitled "The History of the US Department of Defense Programs for the Testing, Evaluation, and Storage of Tactical Herbicides", which indicates that prior to 1966, the training of the Army Chemical Corps personnel to handle herbicides was the responsibility of the Army Chemical Corps Training Center at Fort Leonard Wood, Missouri. See Third Party Correspondence (February 2020). The Veteran's service personnel records confirm that he was stationed at Fort Leonard Wood in Missouri from December 1958 to April 1959 and from November 1959 to January 1960. See Military Personnel Record (August 2016). To ensure that VA has satisfied its duty to assist, a remand is needed for additional development. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran has been diagnosed diabetes mellitus and coronary artery disease (CAD), which are disabilities enumerated as presumptively associated with exposure to herbicide agents when the veteran's exposure to herbicide agents is established. See 38 C.F.R. § 3.309(e). Moreover, a veteran is not precluded from establishing service connection on a direct causation basis for conditions that are not listed as one of the diseases presumptively associated with herbicide exposure. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Current regulations do not indicate that tactical herbicide agents, such as Agent Orange, were used at Fort Leonard Wood for the purpose of establishing service connection presumptively or, alternatively, on a direct basis. See 38 C.F.R. § 3.307 (a)(6). However, VA has established procedures to verify potential herbicide exposure on a factual basis when a claimant alleges exposure in locations other than Vietnam, the Korean Demilitarized Zone, or Thailand. A review of the Veteran's claims file indicates that the AOJ did not attempt to verify whether herbicide agents were used at Fort Leonard Wood during the Veteran's periods of active duty service. Remand is required to verify herbicide agent exposure. Next, a remand is needed to ensure compliance with the Board's remand instructions regarding the Veteran's claimed heart disorder. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall, 11 Vet. App. at 268. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In a February 2021 VA medical opinion (VAMO) report, the examiner concluded that the Veteran's current heart disorder is less likely than not incurred in or caused by in-service injury, event, or disease, grade I systolic murmur and abnormal electrocardiogram (ECG) in March 1959. In support of this conclusion, the VA examiner primarily relied up notations in the STRs dated on March 19, 1959 which noted abnormal ECG findings of left ventricular hypertrophy and a notation, dated five days later, on March 24, 1959 which noted: "Normal cardiac series." The VA examiner then stated the following: "The Veteran was 17 years old at the time of the [March 19, 1959 ECG]. This was only approximately [six] months after his entrance into service. It would be very rare for a 17 year old to develop left ventricular hypertrophy at all unless it was a pre-existing congenital condition, and even more rare for it to develop within a [six] month period time while in service. If the [March 19, 1959] ECG interpretation is actually correct, rather than the [March 24, 1959] Normal ECG, it was almost certainly a pre-existing congenital condition of hypertrophic cardiomyopathy or some other pre-existing heart disease. Regardless, the subsequent ECG on [March 24, 1959] was normal, therefore no currently diagnosed heart condition is attributable to military service." See C&P Exam (February 2021). The VA examiner's medical opinion indicates that the March 19, 1959 notation of LVH was likely erroneous, but if accurate, it likely demonstrated a pre-existing congenital heart condition. However, such ambivalent phrasing indicates that the medical opinion is speculative in nature and of little probative value. See Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009). Moreover, either interpretation fails to provide an adequate rationale for adjudication the Veteran's claim. First, the VA examiner failed to acknowledge the other STRs that reflected evidence of LVH, which corroborates the March 19, 1959 notation and highly suggests that the notation of LVH was accurate. Pertinently, the Veteran's STRs also contain a March 14, 1959 EKG report that shows abnormal findings of "non-specific ST&T wave changes compatible with early LVH." A March 17, 1959 EKG report that also contains abnormal findings which were consistent with the previous EKG findings. A March 18, 1959 EKG report that contains the following summary: "Since the record of 17 March 1959 there has been no significant change. Evidence of Left Ventricular Hypertrophy persists." Finally, an April 1, 1959 hospital discharge note that stated: "ECG showed stable, mild LVH [with] with no change; Cardiac series normal. Discharge to duty." Each of these STR notations reflect the abnormal EKG findings of LVH. The STRs do not contain a subsequent EKG report dated from March 24, 1959, although a March 20, 1959 cardiac radiology series does contain findings of cardiac size and contours within normal limits. As such, the VA examiner's reasoning that the March 17, 1959 notation of left ventricular hypertrophy was likely erroneous is based on an inaccurate factual premise and misstates facts, and therefore, it is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise has no probative value). Second, the VA medical opinion raises the matter of a pre-existing heart condition but does not provide an adequate opinion that addresses the etiology. Every veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004). Additionally, congenital or developmental defects are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. Service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence, as a whole, shows that the manifestations of the disease in service constituted aggravation of the disease within the meaning of applicable VA regulations. A congenital defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90. Further, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service, and the presumption of soundness may still apply to congenital diseases that are not noted at entry. If not noted at enlistment, VA must show by clear and unmistakable evidence that the congenital disease preexisted service and was not aggravated thereby in order to rebut the presumption of soundness. See 38 C.F.R. § 3.303; Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (holding that presumption of soundness does not apply to congenital defects, but it still applies to congenital diseases that are not noted at entry). Here, there is no adequate opinion that addresses the Veteran's abnormal EKG findings of left ventricular hypertrophy noted in service. The Veteran's August 1958 ROME at enlistment shows his heart was evaluated as normal. See STR-Medical (September 2016). It is unclear if the left ventricular hypertrophy noted in service is a congenital disorder, and if so, if it is a disease or defect. Given the above, the Board may not rely on the VA medical opinion in its present form and, therefore, finds the opinion is inadequate for adjudicative purposes. Accordingly, as the Board has a duty to ensure compliance with the terms of its remand, remand for another VAMO on the etiology of the Veteran's heart disorder is again required. Stegall, supra. Lastly, the record reflects that there are outstanding non-VA treatment records for the remaining issues on appeal. During his February 2020 Board hearing, the Veteran testified that he receives treatment for all his medical conditions at Georgetown facility at Indiana University Health. Pursuant to the Board's previous remand directives, VA sent notification requesting the Veteran and his representative to submit completed health record authorization form for any relevant outstanding treatment records. See Subsequent Development Letter (July 2020). To date, neither the Veteran nor the representative has returned an authorization to obtain such relevant evidence. Although VA has a duty to assist the Veteran in substantiating his claim, the duty is not a one-way street and claimants are expected to cooperate in the development of their claims. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). Since a remand is necessary for the above reasons, the Board finds that the Veteran should be afforded another opportunity to assist in the development of his claim by providing authorization for release of his private treatment records. 9. Entitlement to service connection for painful joints, including knees and feet, is remanded. 10. Entitlement to service connection for right foot disorder, including plantar fasciitis, is remanded. 11. Entitlement to service connection for left foot disorder, including plantar fasciitis, is remanded. The Veteran reports gradual onset of bilateral knee and feet pain while on active duty which continued to progress over the years. He reports that he undergone a left total knee replacement in 1991, and he was diagnosed with plantar fasciitis in around 2010. He believes that his current feet and joint problems are due to wear and tear due to physical rigors of service, including prolonged standing and walking, participation in sports, and in duties as an engineer. The Veteran has denied receiving treatment from VA. See Hearing Transcript (February 2020), and C&P Exam (December 2016 and February 2021). The Veteran's STR, including the report of his service entrance and separation examinations, are negative for a chronic, identifiable joint disabilities. In March 1959, it was noted that he had a foot problem and that both ankles were painful and swollen. It was also noted that he had recently had a case of tonsillitis which had been treated with penicillin. The Veteran was admitted to the hospital to rule out rheumatic fever and a penicillin reaction. A chronic foot disorder was not diagnosed. See STR Medical (September 2016). In October 1960, the Veteran sustained a contusion of the left first and second toes, while playing football. X-rays were negative. See STR Medical (August 2016). Records from the Social Security Administration (SSA) show that the Veteran reported difficulty with arthritis in various joints since 1990, and the associated medical records show treatment for knee pain in 1981 and he reported long history of arthritis involving his knees in 1988. See Medical Treatment Records - Furnished by SSA (October 2002). The Veteran was afforded with December 2016 and February 2021 VA foot and knee examinations, which show diagnoses of bilateral foot plantar fasciitis and bilateral knee degenerative arthritis. To ensure that VA's duty to assist has been satisfied, a remand is needed to ensure compliance with the Board's remand instructions and to obtain adequate medical opinions. Stegall, 11 Vet. App. at 268; Barr, 21 Vet. App. at 303. In a February 2021 VAMO report, the examiner opined that it was less likely than not that the current bilateral foot and bilateral knee disorders had been caused by a claimed in-service injury, event or illness. The medical conclusions were premised on the absence of treatment for these disabilities for decades after service without a meaningful discussion of the Veteran's reported medical history of knee and foot problems since service. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate"). In this instance, the Veteran is competent to attest to factual matters which he had first-hand knowledge, including observable symptomatology such knee and foot pain. The record reflects that the Veteran has reports gradual onset of bilateral knee and feet pain while on active duty which continued to progress over the years. See C&P Exam (December 2016 and February 2021). Although the examiner noted the Veteran's medical history in the examination report, no discussion was provided in the rationale in support of the negative medical conclusion. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Given that the February 2021 VAMO is absent of any meaningful discussion of the Veteran's lay reports, the Board finds that it may not rely upon it in its present form and, therefore, concludes that VAMO is inadequate for adjudicative purposes. Accordingly, as the Board has a duty to ensure compliance with the terms of its remand, remand for another VAMO on the etiology of the Veteran's bilateral foot disorder and painful joints, including knees and feet, is again required. Stegall, supra. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for signs, symptoms, or treatment of his claimed disorders, to include from Georgetown Indiana University Health. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Attempt to verify whether the Veteran was exposed to herbicide agents at Fort Leonard Wood, Missouri during his active duty service from December 1958 to April 1959 and from November 1959 to January 1960. Such development should include contact with the Compensation Service, relevant Department of Defense sources, and/or any other appropriate source, to attempt to verify the contended exposure to herbicide agents. If more details are needed to fulfill any verification request, contact the Veteran so that he may have an opportunity to provide the requested information. 3. If and only if the development requested in Item (2) verifies that the Veteran was exposed to herbicide agents in service, please schedule the Veteran for examination(s) with an appropriate VA clinician to determine the nature and etiology of his hypertension, eye disorder, skin disorder and erectile dysfunction, to include as secondary to diabetes mellitus. 4. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's heart disorder. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). In addressing the below matters, consider and expressly address the March 14, 1959, March 17, 1959, and March 18, 1959 EKG reports as well as the March 20, 1959 Cardiac series radiology report. The examiner should provide the following opinions: (a.) Whether the Veteran's left ventricular hypertrophy noted in service is a congenital or development disease, a congenital or developmental defect, or a disorder not of congenital or developmental origin. The examiner should note that a disease generally refers to a condition that is considered capable of improving or deteriorating, while a defect is generally not considered capable of improving or deteriorating. (b.) If the Veteran's left ventricular hypertrophy noted in service is a congenital disease, is there clear and unmistakable evidence that it pre-existed service? Please explain why. The examiner must use the clear and unmistakable standard. (c.) If the Veteran's left ventricular hypertrophy noted in service is a congenital disease and it clearly and unmistakably pre-existed service, is there clear and unmistakable evidence that (i) there was no increase in disability during service, or (ii) any increase in disability during service was due to the natural progression of the disease? Please explain why. (d.) If the Veteran's left ventricular hypertrophy noted in service is a congenital disease that did not clearly and unmistakably pre-exist service, or that it pre-existed service but did not clearly and unmistakably increase in severity beyond natural progression during service, then address whether it is it at least as likely as not (50 percent or greater probability) that it is related to service. Please explain why. In this circumstance only, the Veteran would be presumed sound upon entering service and the examiner may not rely on the presence of the disability prior to service. (e.) If the Veteran's left ventricular hypertrophy noted in service is a congenital defect, did the Veteran incur any superimposed injury of disease in service that as likely as not (50 percent or greater probability) aggravated (caused an increase in severity that is beyond the normal progress of the disease) the defect or the symptoms caused by the defect. Stated differently, f it is a congenital defect, was it subject to superimposed disease or injury in service that resulted in his current heart disorders including myocardial infraction, coronary artery disease, unstable angina, supraventricular arrhythmia, cardiomyopathy? (f.) For any heart disorder (e.g., myocardial infraction, coronary artery disease, unstable angina, supraventricular arrhythmia, cardiomyopathy) that is not a congenital disease or defect, the examiner should state whether it at least as likely as not (1) began in service, or (2) manifested within one year of the Veteran's service separation, or (3) was noted in service with continuity of symptomatology since service, or (4) is otherwise related to an in-service injury or disease (including the Veteran's left ventricular hypertrophy noted in service). Explain. Consider and expressly address the following: (i) the severe reaction to penicillin requiring hospitalization in March 1959; (ii) the abnormal EKG findings of early LVH as well as the normal Cardiac series radiology report dated in March 1959; and (iii) the normal heart evaluation at the August 1961 examination prior to separation. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints/findings for the claimed condition. If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. NOTE (2): An adequate medical opinion will fully address the Veteran's theory of causation and must provide a complete explanation for any history rejected 5. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's painful joints, including knees and feet disorders. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. The examiner should provide the following opinions: (a.) For each knee and foot disability shown, opine on whether it at least as likely as not related to an in-service injury, event, or disease. Consider and address the Veteran's reported history and symptoms since service; and the significance, if any, of STRs showing swollen joints, painful joints, and foot problems. (b.) With respect to the arthritis involving the Veteran's knees, opine whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. Consider and expressly address the Veteran's lay statements concerning continuity of knee and foot symptomatology. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints/findings for the claimed condition. If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. NOTE (2): An adequate medical opinion will fully address the Veteran's theory of causation and must provide a complete explanation for any history rejected. 6. Ensure that the VA medical opinion obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M., 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.