Citation Nr: 21075703 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-23 315 DATE: December 21, 2021 REMANDED Entitlement to service connection for Bell's Palsy is remanded. Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for psoriasis is remanded. Entitlement to service connection for diabetes mellitus, type II, is remanded. Entitlement to service connection for diabetic peripheral neuropathy of the right lower extremity is remanded. Entitlement to service connection for diabetic peripheral neuropathy of the left lower extremity is remanded. Entitlement to service connection for diabetic peripheral neuropathy of the right upper extremity is remanded. Entitlement to service connection for diabetic peripheral neuropathy of the left upper extremity is remanded. Entitlement to service connection for coronary artery disease (CAD) is remanded. Entitlement to service connection for a kidney condition, to include kidney stones, is remanded. Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1953 to March 1955, with additional subsequent service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2018 and April 2021, the Board remanded this appeal to comply with due process requirements and conduct additional evidentiary development. Unfortunately, the Veteran's claim must be remanded again to ensure the Veteran receives the due process to which he is entitled, as explained below. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim, so that he is afforded every possible consideration. 1. Entitlement to service connection for Bell's Palsy is remanded. Another remand is required as there has not been substantial compliance with the directives of the April 2021 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance, rather than absolute compliance, with remand orders). The Board's April 2021 remand directed the RO to obtain an opinion as to whether there is clear and unmistakable evidence that the Veteran's Bell's palsy pre-existed service and whether there is clear and unmistakable evidence that any such disability was not aggravated during active service or that any increase during active service was due to the natural progression of the condition. See 38 U.S.C. § 1111; Horn v. Shinseki, 25 Vet. App. 231, 234 (2014). A July 2021 opinion provided a negative nexus opinion. However, when addressing the questions posed by the Board's remand directives, the examiner did not use the "clear and unmistakable" standard. Therefore, a remand is necessary to obtain an addendum opinion addressing these matters. 2. Entitlement to service connection for prostate cancer is remanded. The Board's April 2021 remand directed the RO to obtain a VA medical opinion addressing the etiology of the Veteran's prostate cancer. The record does not indicate that an opinion was obtained. A remand confers on the claimant, as a matter of law, the right to substantial compliance with the remand orders. Stegall, 11 Vet. App. 268. As the RO did not obtain a medical opinion as directed in the June 2021 Board remand, another remand is necessary to obtain the requested medical opinion. The April 2021 remand also directed the RO to develop the Veteran's claim by providing him an opportunity to identify and release private treatment records pertaining to his prostate cancer. Although a release was sent to the Veteran, he did not return the release. As this matter is being remanded, the Veteran should be afforded another opportunity to assist in the development of his claim. In this regard, the Veteran is advised that a claimant's cooperation is essential to the development of any claim, and failure to provide requested information may result in a negative adjudication of his claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). The Board further notes that the Veteran may submit these records directly to VA. 3. Entitlement to service connection for psoriasis is remanded. The Board finds that a remand is necessary to obtain an addendum opinion to determine whether the Veteran's psoriasis is related to service. In this regard, pursuant to the April 2021 remand, a medical opinion was obtained in July 2021. However, the examiner did not provide an adequate opinion. Rather, the examiner found that there was no diagnosis of psoriasis. This ignores the Veteran's diagnosis of psoriasis during the appeal period. See April 2018 Nursing Consult (reflecting psoriasis over the toes and dorsal area). Accordingly, the Veteran has a current diagnosis of psoriasis as he was diagnosed with such during the pendency of the claim, even if it has resolved. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Thus, the Board finds that a remand is necessary to obtain an addendum opinion that addresses such concerns. 4. Entitlement to service connection for diabetes mellitus, type II, is remanded. 5. Entitlement to service connection for diabetic peripheral neuropathy of the right lower extremity is remanded. 6. Entitlement to service connection for diabetic peripheral neuropathy of the left lower extremity is remanded. 7. Entitlement to service connection for diabetic peripheral neuropathy of the right upper extremity is remanded. 8. Entitlement to service connection for diabetic peripheral neuropathy of the left upper extremity is remanded. 9. Entitlement to service connection for coronary artery disease (CAD) is remanded. 10. Entitlement to service connection for a kidney condition, to include kidney stones, is remanded. 11. Entitlement to service connection for hypertension is remanded. In addition to the development directed above, the Board finds the remaining issues must also be remanded. In this regard, a review of the record reveals that the September 2021 Supplemental Statement of the Case (SSOC) was sent to the Veteran, but was not sent to his representative, as required by VA regulations. 38 C.F.R. § 19.31(b). Given the lack of notice, the Veteran's representative did not have the opportunity to respond to the SSOC within the requisite 30 days prior to the transfer of the case back to the Board. See 38 C.F.R. § 20.5 (stating "[a]n appellant will be accorded full right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person."). Accordingly, remand is warranted to cure this procedural defect. Finally, as this matter is being remanded, the Veteran's updated VA treatment records should also be obtained. The matters are REMANDED for the following action: 1. Obtain the Veteran's updated VA treatment records from September 2021 forward. 2. Contact the Veteran to request that he identify any outstanding records of pertinent medical treatment from VA or private health care providers, including Metropolitan Hospital. Follow the procedures for obtaining the records, as set forth by 38 C.F.R. § 3.159(c), and obtain VA Form 21-4142 releases if necessary. If any outstanding records are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. Thereafter, return the claims file to the July 2021 VA examiner to provide an addendum opinion addressing the etiologies of the Veteran's Bell's palsy. If the July 2021 examiner is not readily available, another medical professional may be asked to provide the necessary opinion. The Veteran should not be scheduled for an examination (or telehealth interviews, reviews of the record, etc., if in-person examinations are not feasible) unless deemed necessary by the medical professional rendering an opinion on this claim. The entire claims file must be reviewed by the examiner in conjunction with the opinion. The examiner should address the following: a) Is there clear and unmistakable evidence (obvious, manifest, and undebatable) that the Veteran's Bell's palsy preexisted his active military service? Why or why not? b) If so, state whether there is clear and unmistakable evidence (obvious, manifest, and undebatable) that the preexisting Bell's palsy was NOT aggravated (i.e., worsened beyond its normal progression) during service; or whether, it is clear and unmistakable that any increase in service was due to the natural progress of the disorder. c) If the Veteran's Bell's palsy is NOT found to clearly and unmistakably exist prior to service, the examiner should opine as to whether it is at least as likely as not (i.e., probability of approximately 50 percent) that it had its onset during service or is related to incident of service. A complete rationale for all opinions expressed must be provided. 4. Schedule the Veteran for an examination to determine the nature and etiology of his prostate cancer. The entire claims file must be reviewed by the examiner in conjunction with the opinion. The examiner is asked to opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's prostate cancer had its onset during active service or is related to any incident of service. A complete rationale for all opinions expressed must be provided. 5. Return the claims file to the July 2021 VA examiner for an addendum opinion. If the July 2021 examiner is not readily available, an opinion may be obtained by another medical professional. The Veteran should not be scheduled for an examination (or telehealth interview, review of the record, etc., if in-person examination is not feasible) unless deemed necessary by the VA medical professional rendering an opinion on this claim. The entire claims file must be reviewed by the examiner in conjunction with the opinion. The examiner is asked to opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's psoriasis had its onset during active service or is related to any incident of service. The examiner is advised that for VA compensation purposes a current diagnosis includes any diagnosis since the claim was filed. In this case, the claim was filed August 2014 and all manifestations of the Veteran's psoriasis since then must be considered, even if they later resolve during the appeal period. A complete rationale for all opinions expressed must be provided. 6. After completing all actions set forth in paragraphs 1-5, plus any further action needed as a consequence of the development completed in paragraphs 1-5 above, readjudicate the remanded claims with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative a supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations. The Veteran and his representative should be afforded the appropriate time to respond. Thereafter, if indicated, the case should be returned to the Board for adjudication. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Kelly McDonald Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Stedman, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.