Citation Nr: 21075542
Decision Date: 12/20/21	Archive Date: 12/20/21

DOCKET NO. 17-45 734
DATE: December 20, 2021

ORDER

Entitlement to an increased initial rating in excess of 10 percent for right hip arthritis is denied.

As new and material evidence has been received, the claim of entitlement to service connection for an eye condition is reopened; to that extent only, the appeal is granted.

Entitlement to service connection for bilateral pes planus is granted.

Entitlement to service connection for hemorrhoids is denied.

Entitlement to service connection for diabetes mellitus type II, to include as secondary to service-connected sarcoidosis is denied.

REMANDED

Entitlement to service connection for an eye condition is remanded.

Entitlement to service connection for a back condition, to include as secondary to service-connected right and left hip disabilities is remanded.

Entitlement to service connection for a skin condition, to include as secondary to sarcoidosis is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.

FINDINGS OF FACT

1. During the period on appeal, the Veteran's right hip disability has not been manifested by extension of the right thigh limited to 5 degrees, right hip flexion limited to 45 degrees or less, or limitation of right hip abduction with motion lost beyond 10 degrees.

2. A May 2009 rating decision denied the petition to reopen the claim for service connection for a chronic eye disability secondary to sarcoidosis; the Veteran did not appeal that decision, and new and material evidence was not received within one year of notice of its issuance.

3. Evidence received more than one year after that May 2009 rating decision is neither cumulative nor redundant of the evidence that was already of record and considered in that decision, and this additional evidence raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for an eye condition.

4. The Veteran's bilateral pes planus began during active service.

5. The preponderance of the evidence of record is against finding that the Veteran has had hemorrhoids or any related disability at any time during or approximate to the pendency of the claim.

6. The Veteran's diabetes type II is not secondary to service-connected sarcoidosis or medication used to treat sarcoidosis and is not otherwise related to an in-service injury or disease.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent for the Veteran's right hip disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (Codes) 5251-5253.

2. The May 2009 rating decision denying service connection for a chronic eye disability secondary to sarcoidosis is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103.

3. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for a chronic eye disability has been received since that May 2009 rating decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.

4. The criteria for service connection for bilateral pes planus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

5. The criteria for service connection for hemorrhoids are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

6. The criteria for service connection for diabetes type II due to service or service-connected sarcoidosis and medication therefor are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1979 to September 1988.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision and a June 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The issues of entitlement to an initial rating in excess of 10 percent for right hip arthritis and entitlement to TDIU are on appeal from the August 2016 rating decision, and the remainder of the issues are on appeal from the June 2018 rating decision.

The Board notes that the Veteran initially requested a hearing on the issues on appeal; however, in November 2019 and March 2021, the Veteran withdrew his requests for hearings as to all issues on appeal. See, e.g., letter received November 15, 2019; letter received March 31, 2021.

The Board also notes that it has recharacterized some of the issues on appeal in order to more broadly and accurately encompass the disabilities and theories of entitlement claimed by the Veteran and/or shown by the evidence. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); Clemmons v. West, 206 F.3d 1401 (Fed. Cir. 2000).

1. Entitlement to an increased initial rating in excess of 10 percent for right hip arthritis

The Veteran claims entitlement to an increased initial rating in excess of 10 percent disabling for his service-connected right hip arthritis. For the following reasons, the Board finds that the Veteran is not entitled to an increased rating for his right hip disability.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, as is the case here, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999).

Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7.

The Veteran's service-connected right hip arthritis is currently evaluated as 10 percent disabling throughout the period on appeal under 38 C.F.R. § 4.71a, diagnostic code (Code) 5003-5253 and 0 percent disabling under 38 C.F.R. § 4.71a, Codes 5251 and 5252.

Hyphenated diagnostic codes are utilized when a rating under one diagnostic code requires use of an additional code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Here, the Veteran's right hip arthritis is rated under Code 5003 and Code 5253 identifies the basis for the evaluation assigned.

Code 5003, applicable to degenerative arthritis, provides that when limitation of motion is noncompensable under the appropriate code or codes, a rating of 10 percent may be applied to each major joint or group of minor joints affected by limitation of motion. Such limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. If there is no limitation of motion, a 10 percent rating will be assigned where there is x-ray evidence of involvement of two or more major joints or minor joint groups, and a 20 percent rating will be assigned where there is such involvement along with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Code 5003. For the purpose of rating disability from arthritis, hips are considered a major joint. 38 C.F.R. § 4.45(f).

Under 38 C.F.R. § 4.71a, Code 5251, for limitation of extension of the thigh, a maximum 10 percent rating is warranted for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a, Code 5251.

Under Code 5252, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 20 degrees. A maximum 40 percent rating is warranted for flexion limited to 10 degrees. 38 C.F.R. § 4.71a, Code 5252.

Under 38 C.F.R. § 4.71a, Code 5253, for impairment of the thigh, a 10 percent rating is warranted for limitation of rotation of affected leg, cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction, cannot cross legs. A maximum 20 percent rating is warranted for limitation of abduction, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Code 5253.

Codes 5250, 5254, and 5255 also apply to disabilities of the hip and thigh, but since ankylosis of the hip, flail joint of the hip, and fracture or malunion of the femur have not been alleged or shown by the evidence, the Board finds that those Codes do not apply here, and it will thus not discuss them further. See 38 C.F.R. § 4.71a, Codes 5250-5255.

Hence, in this case, regarding the issue of the rating of the Veteran's right hip disability, the question for the Board is whether the extension of the right thigh is limited to 5 degrees, whether right hip flexion is limited to 45 degrees or less, and whether there is limitation of right hip abduction with motion lost beyond 10 degrees.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

The Veteran contends that he is entitled to an increased rating for his right hip disability because: he was informed that he may need a hip replacement in or about 2011, cannot drive long distances, and has difficulty walking, standing, and squatting whenever his pain flares up and has to stay in bed until it subsides, sometimes for up to 2 weeks; his right hip causes intermittent pain which impacts his ability to perform physical occupational tasks that require standing or walking;. See VA Form 21-0958, Notice of Disagreement (with attachment), received September 30, 2016; VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received March 30, 2017.

The evidence of record reflects that during the period on appeal (i.e., since his September 14, 2011 claim for service connection for this right hip disability), the Veteran's right hip disability has not been manifested by extension of the right thigh limited to 5 degrees, right hip flexion limited to 45 degrees or less, or limitation of right hip abduction with motion lost beyond 10 degrees.

Neither the Veteran's VA nor his private treatment records evidence any such limitations of motion. To the contrary, the Veteran's VA treatment records indicate that in January 2015, he presented to a VA medical center with normal active range of motion of his bilateral lower extremities except his left hip internal rotation. See VA treatment records received April 22, 2021.

The Veteran was afforded four VA examinations for his right hip disability during the period on appeal, including in August 2016, April 2017, November 2018, and October 2020. In an April 2020 Board decision and remand, the Board found the August 2016, April 2017, and November 2018 VA hip examination reports inadequate because they did not adequately address functional loss during flare ups and/or after repetitive use. However, the Board notes that, for purposes of this decision, the reports of those examinations are still probative as to range of motion limitations and other matters aside from functional loss during flare ups and/or repetitive use. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight... if the opinion is merely lacking in detail, then it may be given some weight based upon the amount of information and analysis it contains."). And none of the VA hip examination reports, including the report of the October 2020 VA hip examination (which has not been deemed inadequate by the Board), indicate that the Veteran's right hip disability has been manifested by extension of the right thigh limited to 5 degrees, right hip flexion limited to 45 degrees or less, or limitation of right hip abduction with motion lost beyond 10 degrees. The October 2020 VA hip examination report specifically indicates that even during flare ups and after repetitive use over time, such limitations of motion are not present.

The evidence does reflect that the Veteran reports severe pain and significant functional limitations (e.g., inability to sit, stand, walk, or drive for prolonged periods) during flare ups, but there is no medical evidence in the claims file that indicates that the Veteran's right hip causes functional impairment that includes or is akin in severity to extension of the right thigh limited to 5 degrees, right hip flexion limited to 45 degrees or less, or limitation of right hip abduction with motion lost beyond 10 degrees.

Furthermore, the Board finds that the Veteran's symptoms are fully contemplated by the assigned schedular rating. The DeLuca concepts of functional loss, painful motion are used to apply the rating criteria found in the diagnostic codes. Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016); Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011). The Thompson court has explained as follows: "Section 4.40 also makes clear that functional loss may be due to pain and that pain may render a part seriously disabled. When evaluating a disability, § 4.40 provides a broad canvas. However, whatever the background, an applicant for disability benefits is rated based on the criteria set forth in § 4.71a." Thompson, 815 F.3d at 786. In other words, pain alone without it resulting in any functional loss is not enough to warrant an increased rating. As such, the current rating of 10 percent adequately compensates the Veteran for his right hip pain with limited motion, and a higher rating is not warranted under DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).

The Board also notes that the Veteran has contended, essentially, that he is entitled to a 20 percent disability rating if "the evidence shows x-ray evidence" and that the August 2016 and/or April 2017 VA examination reports are thus inadequate because the examiners did not perform x-rays. See VA Form 9, Appeal to Board of Veterans' Appeals, received August 25, 2017. However, because both of those examinations concede that arthritis is present in the right hip, the Veteran has already been assigned a 10 percent disability evaluation throughout the period on appeal, and the right hip is, by law, one major joint, x-ray evidence would not entitle the Veteran to a 20 percent or higher disability rating and the fact that x-rays were not taken does not render those VA examination reports inadequate on that basis. See 38 C.F.R. §§ 4.45(f), 4.59, 4.71a, Codes 5003, 5250-5255. 

In summary, the Board concludes that the preponderance of the evidence weighs against assignment of a rating in excess of 10 percent for his service-connected right hip disability. Accordingly, the Veteran is not entitled to such an increased rating, and this appeal therefor is denied.

Service Connection

2. Whether new and material evidence sufficient to reopen the claim of entitlement to service connection for an eye condition has been received

The petition to reopen a claim for service connection for a chronic eye disability secondary to sarcoidosis was denied in a May 2009 rating decision. The Veteran was notified of that determination and of his appellate rights, and he did not appeal or submit new and material evidence within the following year. Accordingly, that decision is a final and binding determination based on the evidence then of record. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. Evidence received since that unappealed rating decision includes but is not limited to September 2016 and February 2019 notes in the Veteran's VA treatment records indicating that the Veteran has, or at least has reported, pulmonary sarcoidosis with secondary visual problems and blurring of vision, and a December 2019 note indicating that he was provisionally diagnosed with an unspecified disorder of refraction. The VA treatment records also include a February 2016 note indicating that he was reporting blurry vision in the morning around that time. This newly received evidence is new because it was not previously considered in the May 2009 rating decision, and it is material because it pertains to unestablished facts necessary to substantiate the claims of entitlement to service connection for the aforementioned conditions; namely, the nature and etiology of the Veteran's claimed eye condition(s) and symptoms. As this additional evidence is new and material, this claim is consequently reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). This action will not prejudice the Veteran, as the Board is remanding the now reopened claim of entitlement to service connection for an eye condition, as discussed below. See Hickson v. Shinseki, 23 Vet. App. 394, 398 (2010).

3. Entitlement to service connection for a bilateral foot condition, to include pes planus

The Veteran claims entitlement to service connection for a bilateral foot condition. For the following reasons, the Board finds that the Veteran is entitled to service connection for bilateral pes planus.

Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, even without evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 C.F.R. § 3.303(d).

Every veteran shall be taken 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. 38 U.S.C. § 1111. Thus, if a condition is not noted on entrance, there must be clear and unmistakable evidence that it preexisted the veteran's service as well as clear and unmistakable evidence that it was not aggravated by service, to include a specific finding that the increase is due to the natural progress of the disease. See id.; 38 U.S.C. § 1153; 38 C.F.R. §§ 3.304, 3.306. If soundness is not presumed, the veteran has the burden of showing a worsening in service to trigger a presumption of aggravation; and there must be clear and unmistakable evidence to rebut the presumption of aggravation. Horn v. Shinseki, 25 Vet. App. 231 (2012); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). There must be more than temporary flareups or a recurrence of the preexisting condition to show aggravation during service. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292 (1991).

In this case, the Veteran's service treatment records (STRs) show that pes planus was not noted on his November 1978 enlistment examination; thus, he is presumed sound as to pes planus at the time of his enlistment. His STRs also show that bilateral pes planus was found to be present and was complained of during his service and that it was noted on the report of his separation examination. See STRs received January 26, 2010.

The Veteran was afforded a VA foot conditions examination in May 2018, and the examiner diagnosed the Veteran with pes planus. The examiner opined that the Veteran's pes planus was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was as follows: "During the service the veteran had an episode of feet pain with a diagnoses of pes planus. It has been a 30 year gap in care and no medical documentation of care. Symptoms were subjective only. A nexus is not established." See Medical Opinion  Disability Benefits Questionnaire dated May 9, 2018. However, contrary to the examiner's assertion in this rationale, the Veteran's STRs reflect multiple episodes of foot pain and notes indicating the presence of pes planus. And regarding whether the Veteran's pes planus preexisted his active service, the examiner did not opine whether the pes planus clearly and unmistakably preexisted the Veteran's service, and the Board finds that the claims file does not contain any clear and unmistakable evidence of such preexistence.

The record, however, does contain evidence indicating that the Veteran was not noted to have bilateral pes planus at the time of his enlistment into active duty, that he was noted to have it before his separation from active duty, and that he still had bilateral pes planus at the time of the May 2018 VA foot conditions examination. Accordingly, pursuant to 38 U.S.C. § 1111, and considering the presence of bilateral pes planus at separation and continuing through May 2018, the Board concludes that the Veteran is entitled to service connection for bilateral pes planus.

4. Entitlement to service connection for hemorrhoids

The Veteran also claims entitlement to service connection for hemorrhoids. For the following reasons, the Board finds that he is not entitled to service connection therefor.

The Veteran has filed a claim for hemorrhoids, but he has not further explained why he feels entitled to service connection for hemorrhoids. See VA Form 21-526b, Veteran's Supplemental Claim for Compensation, received April 9, 2018. He has not alleged that he has had hemorrhoids during the period on appeal, nor has he contended that he incurred them during or as a result of his active military service or any service-connected condition. And the Board also notes, in this regard, that the Veteran is competent to report symptoms that he is able to observe, however, he is not competent to diagnose himself with hemorrhoids. Such an issue is medically complex, as a diagnosis and a competent opinion as to etiology of such a condition requires medical training and credentials. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

As for the medical evidence in the claims file, none of the Veteran's reports of medical examinations in his STRs (including the reports of his enlistment and separation examinations) indicate that he was diagnosed with hemorrhoids or any similar conditions during his active service. A December 1987 note in the Veteran's STRs indicates that a proctoscopic examination was performed that month, that the results were normal, and that the Veteran had no external hemorrhoids at that time.

And while the Veteran's VA treatment records do indicate that he was found to have hemorrhoids and diverticulosis during a colonoscopy in June 2006, his VA and private treatment records do not indicate that he has been diagnosed with hemorrhoids or a similar condition during the period on appeal, nor do they indicate that any such condition is related to the Veteran's active military service.

As there is no competent evidence in the claims file that the Veteran has had hemorrhoids during the period on appeal, that they were incurred during or as a result of his active service, or that there was any related in-service injury, illness, or event, the Board finds that VA is not required to provide the Veteran with an examination for this claimed disability and that the Veteran has not met his duty to support his claim with evidence. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also Skoczen v. Shinseki, 564 F.3d 1319, 1324 (Fed. Cir. 2009) (recognizing that the burden is on the claimant to demonstrate entitlement to benefits).

Furthermore, the Board finds that the preponderance of the evidence of record weighs against finding that the Veteran has had hemorrhoids during the period on appeal that were incurred during or as a result of his active service. Accordingly, entitlement to service connection for hemorrhoids is denied.

In denying this claim, the Board finds that the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

5. Entitlement to service connection for diabetes mellitus type II, to include as secondary to service-connected sarcoidosis

The Veteran claims entitlement to service connection for diabetes mellitus type II, to include as "secondary to steroid use for sarcoidosis." See VA Form 21-526b, Veteran's Supplemental Claim for Compensation, received April 9, 2018. For the following reasons, the Board finds that the Veteran is not entitled to service connection for diabetes type II.

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected (except as provided in § 3.300(c)) and any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310.

The Board notes that the Veteran is not competent to opine whether his diabetes mellitus type II is related to his sarcoidosis or his use of steroids to treat that condition, because this issue is once again medically complex, and here again, a diagnosis and a competent opinion as to etiology of this condition requires medical training and credentials. See Jandreau, 492 F.3d 1372, 1377.

The Veteran's STRs do not evidence a diagnosis of diabetes mellitus type II during his active service, including at the time of his separation from active service. His VA and private treatment records also do not evidence the in-service incurrence of diabetes mellitus type II, and the Veteran does not contend that the condition was incurred during his active service. The Veteran's VA treatment records contain a December 2000 ophthalmology consult request indicating that the Veteran did not have diabetes at that time, but the records do show that he was diagnosed with diabetes mellitus type II at least as early as 2010. There is also no indication in the VA or private treatment records in the claims file that the Veteran incurred diabetes mellitus type II as a result of his service-connected sarcoidosis or any of the medication that he has taken for that condition.

The Veteran was afforded a VA diabetes mellitus examination in May 2018, and the examiner indicated that he had a diagnosis of diabetes mellitus type II, dated in 2012. The examiner opined that the Veteran's diabetes mellitus type II is less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected sarcoidosis and use of steroids for treatment of that condition. The examiner's rationale was as follows: "The two conditions are not medically related and claimed disorder is a separate entity entirely from the service connected condition and unrelated to it. The veteran received intermittent dosage of steroids for his pulmonary conditions low doses, and it was continuous. a nexus is not established." Thus, the examiner essentially opined that diabetes mellitus type II is not related to sarcoidosis and that the Veteran's use of steroids was so infrequent and light that it would be less likely than not to cause diabetes mellitus type II. In the absence of any competent evidence to the contrary in the claims file, the Board finds this examination opinion probative and compelling.

As there is no competent evidence in the claims file indicating that the Veteran's diabetes mellitus type II is caused by his sarcoidosis or use of steroids therefor, and there is competent evidence indicating that the condition is not related to sarcoidosis or the related steroid use, the Board finds that the preponderance of the evidence weighs against finding that the Veteran's diabetes mellitus type II is related to his sarcoidosis or the steroids that he has taken therefor. Accordingly, the Board concludes that the Veteran is not entitled to service connection for diabetes mellitus type II, and this appeal is therefore denied.

The Board notes that in denying this claim, it finds that the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

1. Entitlement to service connection for an eye condition is remanded.

As discussed above, the new and material evidence received in connection with this claim includes September 2016 and February 2019 notes in the Veteran's VA treatment records indicating that he has, or at least has reported, pulmonary sarcoidosis with secondary visual problems and blurring of vision, and a December 2019 note indicating that he was provisionally diagnosed with an unspecified disorder of refraction. The Veteran's VA treatment records also show that he complained of blurred vision and other symptoms that he associates with his sarcoidosis in October 2011. He has not been afforded a VA examination for his claimed eye disability. The Board finds that the Veteran should be afforded a VA examination for his claimed eye disability, considering the competent evidence of a current disability and its association with the Veteran's service-connected sarcoidosis. See McLendon v. Nicholson, 20 Vet. App. 79, 81.

The Veteran's STRs reflect complaints of eye-related symptoms, so the examiner should opine whether the Veteran's eye disabilities, if any, are directly related to his active service (including, inter alia, whether it was incurred during active service) and whether they are secondary to his service-connected sarcoidosis.

And before this opinion is obtained, attempts should be made to obtain any outstanding VA or private treatment records, as the Board's review of the claims file reflects that the Veteran has obtained relevant treatment from both VA and private healthcare providers.

2. Entitlement to service connection for a back condition, to include as secondary to service-connected right and left hip disabilities, is remanded.

An opinion was obtained on the etiology of the Veteran's back condition in May 2018. The examiner opined that the Veteran has diagnoses of a lumbosacral strain, degenerative arthritis of the spine, intervertebral disc syndrome, spinal stenosis, and right sciatica. The examiner opined that the Veteran's back condition is not related to his hip disabilities because the back and hip conditions are separate entities that are not medically related and arthritis in one joint does not cause arthritis in another joint. However, the examiner did not discuss, and might not have considered, the fact that an April 2016 note in the Veteran's VA treatment records indicates that "[h]is low back pain [was] likely muscular and originating in the hips." The examiner also did not discuss, and might not have considered, the Veteran's reports of recurrent back pain on the report of his February 1988 separation examination, and the examiner did not opine whether the Veteran's claimed back disability was incurred during his active service.

Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. A medical opinion is adequate when it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the evaluation by the Board of the claimed disability will be a fully informed one. Barr v. Nicholson, 21 Vet. App. 303, 305 (U.S. 2007).

Here, because the VA examiner did not discuss the April 2016 note in the Veteran's VA treatment records indicating that "[h]is low back pain [was] likely muscular and originating in the hips" or the report of recurrent back pain during his separation examination, the Board finds that the examiner did not consider the entirety of the evidence regarding the Veteran's prior medical history. Thus, the Board concludes that additional information, in the form of another VA examination opinion, is necessary prior to adjudication of this appeal. Specifically, another opinion should be sought in order to determine whether the Veteran's back condition is related to his hip disabilities or directly related to his active service after consideration of the April 2016 VA treatment note and STRs.

3. Entitlement to service connection for a skin condition, to include as secondary to sarcoidosis, is remanded.

An opinion was also obtained on the etiology of the Veteran's skin conditions in May 2018. The examiner opined that the Veteran had diagnoses of tinea versicolor and acne keloidalis nuche/PFB on his scalp. The examiner opined that the Veteran's skin conditions are less likely than not proximately due to or the result of Veteran's sarcoidosis. The examiner's rationale for this opinion was as follows: "The two conditions are not medically related. The claimed disorder is a separate entity entirely from the service connected condition and unrelated to it. The medical literature does not support a medical relationship. A nexus has not been established." This rationale is conclusory and does not discuss the fact that the Veteran has consistently reported skin lesions, rashes and dry skin associated with his sarcoidosis flare ups. 

Furthermore, the American Academy of Dermatology Association's website indicates that "[a]bout 20% of people who get sarcoidosis develop signs of the disease on their skin" and "raised patches, deep lumps, and open sores" are "a common sign of sarcoidosis." Sarcoidosis and Your Skin: Signs and Symptoms, AMERICAN ACADEMY OF DERMATOLOGY ASSOCIATION (last visited November 12, 2021), https://www.aad.org/public/diseases/a-z/sarcoidosis-symptoms. And according to the National Center for Biotechnology Information's website, "[s]arcoidosis is an idiopathic multisystem granulomatous disease that commonly involves the lungs, eyes, lymph nodes and skin" and sarcoidosis-related lesions are "great imitator[s] in dermatology" that, in three noted cases, "mimicked various common dermatologic conditions, causing great confusion for the diagnosis and posing problems for management." Raghunatha R Reddy, B M Shashi Kumar,1 and M R Harish, Cutaneous Sarcoidosis - A Great Masquerader: A Report Of Three Interesting Cases, INDIAN JOURNAL OF DERMATOLOGY, September-October 2011, 56(5): 568572, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3221226/. Considering the foregoing, the Board finds that the May 2018 VA skin conditions examiner's etiology opinion is inadequate.

On remand, another opinion should be obtained regarding the etiology of the Veteran's claimed skin condition and before the opinion is formed and rendered, the examiner should be asked to consider: (a) the fact that the Veteran has consistently reported skin lesions, rashes and dry skin associated with his sarcoidosis flare ups; and (b) pertinent medical literature regarding sarcoidosis and its effect on skin.

4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.

The Board finds that the issue of entitlement to TDIU is inextricably intertwined with the Veteran's remanded claims of entitlement to service connection for eye, back, and skin conditions. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). As such, consideration of entitlement to TDIU must be deferred pending the outcome of the Veteran's claims of entitlement to service connection for those eye, back, and skin conditions. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter).

The matters are REMANDED for the following action:

1. Obtain any updated or otherwise outstanding VA treatment records.

2. Ask the Veteran to complete a VA Form 21-4142 if he would like VA to request any outstanding records from any private healthcare providers that he has received treatment from in connection with his claimed eye, back and skin conditions and service-connected disabilities. If the Veteran completes and returns the form, make two requests for the authorized records from each noted healthcare provider, unless it is clear after the first request that a second request would be futile.

3. Schedule the Veteran for a VA examination for his claimed eye disability. The examiner must review the claims file.

If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below.

The examiner is asked to provide a response to the following:

(a.) Is the Veteran's eye disability at least as likely as not related to service, including any eye or vision-related complaints during active service?

(b.) Is the Veteran's eye disability at least as likely as not proximately due to service-connected sarcoidosis?

(a.) Is the Veteran's eye disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected sarcoidosis?

Provide a rationale to support the opinion(s).

In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible?

4. Schedule the Veteran for a VA examination for his claimed back disability. The examiner must review the claims file.

If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms (including pain) that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below.

The examiner is asked to provide a response to the following:

(a.) Is the Veteran's back disability at least as likely as not related to service, including any complaints of back pain during active service (e.g., during his separation examination)?

(b.) Is the Veteran's back disability at least as likely as not proximately due to service-connected hip disabilities?

(c.) Is the Veteran's back disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected hip disabilities?

Provide a rationale to support the opinion(s).

In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible?

5. Schedule the Veteran for a VA examination for his claimed skin disability. The examiner must review the claims file.

If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms (including pain) that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below.

The examiner is asked to provide a response to the following:

(a.) Is the Veteran's skin disability at least as likely as not related to service?

(b.) Is the Veteran's skin disability at least as likely as not proximately due to service-connected sarcoidosis?

(c.) Is the Veteran's skin disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected sarcoidosis?

Provide a rationale to support the opinion(s).

In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible?

 

 

Journet Shaw

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Banks, 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.