Citation Nr: 21077094 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-42 124 DATE: December 28, 2021 REMANDED Entitlement to service connection for a bilateral thumb disability is remanded. Entitlement to service connection for a skin disability, to include acanthosis nigricans, dermatofibroma, and seborrheic keratoses, is remanded. Entitlement to service connection for cervical spine degenerative disc disease (DDD) is remanded. Entitlement to service connection for a disability manifested by gout in bilateral big toes and feet is remanded. Entitlement to service connection for a bilateral elbow disability is remanded. Entitlement to service connection for a bilateral ankle disability is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. REASONS FOR REMAND The Veteran had active duty from September 1988 to September 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from the February 2017, and June 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The February 2017 rating decision denied, in pertinent part, service connection for cervical spine DDD and a skin condition. The June 2018 rating decision denied, in pertinent part, service connection for bilateral big toes and feet gout, bilateral thumb condition, bilateral elbow condition, bilateral ankle condition, and sleep apnea. In July 2019, the Board denied, in pertinent part, the issues of entitlement to service connection for cervical DDD and skin condition. The Veteran, through his attorney, and VA's Office of General Counsel appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) by filing a Joint Motion for Remand (JMR). The Court granted the JMR, vacating and remanding only that part of the Board's July 2019 decision which denied entitlement to service connection for cervical DDD and skin condition. In January 2021, the Board remanded this appeal to the RO for additional development. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this appeal again, additional development is required before the underlying claims can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). The Board notes that the claims of service connection for sinus condition, epididymitis, left knee condition, and low back condition also were remanded in January 2021. In a June 2021 rating decision, the RO granted service connection for chronic sinusitis, with an evaluation of 10 percent effective June 27, 2014, epididymitis, with a noncompensable evaluation effective June 27, 2014, left knee strain, with an evaluation of 10 percent effective February 26, 2016 and lumbosacral strain, with an evaluation of 20 percent effective February 26, 2016. As this represents a full grant of the benefits sought, these matters are no longer before the Board. See Grantham v. Brown, 114 F .3d 1156 (1997). 1. Entitlement to service connection for a bilateral thumb disability The Veteran asserts that his bilateral thumb disability was due to environmental exposures from his Persian Gulf War service. He had active service in Southwest Asia during Operation Iraqi Freedom. Therefore, he is considered a Persian Gulf Veteran. 38 C.F.R. § 3.317(e). In March 2018, the Veteran was afforded a VA Gulf War examination. He reported having some wrist discomfort near the base of his thumb, about once a month, with no known triggers. He reported that pain was worse with moving the basal joint of the thumb and so he avoided grabbing items or holding heavy items when this happened. He reported having this happen only 1-2 times on the right thumb area. The Veteran reported onset of symptoms around six months putting onset in 2017, many years after separation from service. The examiner diagnosed the Veteran with basal joint DJD of the thumbs and opined that it is less likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The rationale was that basal joint DJD of the bilateral thumbs is a known entity and the weight of the literature including the 2016 IOM report regarding Gulf War and Health does not support a relationship between this condition and Gulf War exposures. In February 2021, the Veteran was afforded a VA hand and fingers examination. After examination, the examiner diagnosed the Veteran with bilateral thumb sprain but indicated there was no evidence in the available records of the Veteran complaining of thumb pain while in the service. The examiner opined that the thumb sprain was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Board notes that the absence of contemporaneous records documenting complaints of or treatment for a claimed disability does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Because the rationale for the February 2021 VA examiner's opinion violates the Court's decisions in Buchanan and Barr, the Board finds that this evidence is not probative on the issue of whether a bilateral thumb disability is related to active service. Thus, the Board finds that, on remand, the AOJ should obtain another opinion which addresses this matter. 2. Entitlement to service connection for a skin disability In January 2021, the Board remanded the issue of service connection for a skin condition to obtain a new nexus opinion due to deficiencies in a previous January 2017 VA opinion. The Board noted the Veteran attributed his skin condition to hazardous vapors, oil fields, and particulate matter. The Board provided explicit instructions asking that the selected examiner opine as to whether the disorder had onset in service or was caused by exposure to Gulf War hazards including the reported use of insecticides on aircraft. In February 2021, the Veteran underwent a VA examination to determine the etiology of his skin condition. The examiner opined that "[t]here is no plausible medical explanation for a connection between Gulf War Exposure and the diagnosed [skin] condition." This examiner did not address service connection on a direct basis. Compliance with remand directives by the RO is not discretionary. The Board errs as a matter of law when it fails to ensure compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). And when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v, 21 Vet. App. 303, 312. Thus, the claim must be remanded again for an addendum medical opinion which addresses this matter. 3. Entitlement to service connection for cervical spine DDD In January 2021, the Board remanded the issue of service connection for cervical spine DDD to obtain a new nexus opinion due to deficiencies in a previous January 2017 VA opinion. The Board noted the Veteran attributed his cervical spine DDD to aircrew duties which required movement in small/tight compartments and movement of odd sized and heavy cargo. In February 2021, the Veteran underwent a VA examination to determine the etiology of his cervical spine DDD. The examiner opined that cervical spine DDD was less likely than not incurred in or caused by the claimed in-service injury or illness. The rationale was that the Veteran's service treatment records did not mention neck problems and VA records show complaints of neck pain in 2010 that were of 3 years duration. The examiner noted the Veteran's lay statements regarding his aircrew duties but noted at no time did the Veteran seek care for neck pain. The examiner opined that the Veteran's description of activities while on active service were not of a frequency or duration to lead to degenerative changes of the cervical spine noted almost 20 years later. The Board notes that the examiner did not address the Veteran's lay statements regarding continuity of neck pain since service as he reported that he experienced occasional neck pain although it was not significant enough to seek treatment. Thus, the claim must be remanded again for an addendum medical opinion which addresses this matter. 4. Entitlement to service connection for a disability manifested by gout in bilateral big toes and feet In January 2021, the Board remanded the issue of service connection for gout in bilateral big toes and feet to obtain a nexus opinion. The Board provided explicit instructions that the selected examiner opine as to whether gout is at least as likely as not caused by military service and/or proximately due to or aggravated by service-connected hypertension medication. The February 2021 VA examiner opined that the Veteran's gout is less likely than not proximately due to or aggravated by service-connected hypertension medication. With regard to proximity, the examiner explained that the Veteran was diagnosed with gout around 2002. In February 2010, the Veteran was seen by rheumatology and there was concern that his HCTZ was aggravating his gout. HCTZ was started "5 months" prior to being seen by rheumatology. There is no evidence that the Veteran was on diuretics around the time of his gout diagnosis. The Board notes that the February 2010 medical record also notes that the Veteran had a history of taking Valsartan (Diovan) and Lisinopril for his hypertension. The February 2021 VA examiner did not discuss whether the Veteran's gout is proximately due to these medications. With regard to aggravation, the February 2021 examiner explained that, since the Veteran stopped taking HCTZ in 2010, the frequency of his gout flares is comparable to baseline of every 3 months. The medical evidence does not indicate that he stopped taking hypertension medication in 2010 as the April 2018 VA examination report indicates he was taking Valsartan daily for his service-connected hypertension. As such, the claim must be remanded again for an addendum medical opinion which addresses this matter. 5. Entitlement to service connection for a bilateral elbow disability The February 2021 VA examiner diagnosed the Veteran with gout of the left elbow and opined that it was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. This examiner did not provide a diagnosis of right elbow condition and did not reconcile such a finding with the diagnosis of intermittent bilateral lateral epicondylitis, left greater than right, which was assessed in the March 2018 VA examination report. Thus, the claim must be remanded for an addendum medical opinion which addresses this apparent conflict in the medical evidence of record. 6. Entitlement to service connection for a bilateral ankle disability The February 2021 VA examiner indicated there was no diagnosis of a bilateral ankle condition; however, the March 2018 VA examination report included diagnoses of intermittent Achilles' tendonitis and intermittent anterior tendonitis. Thus, a VA addendum opinion is needed to reconcile this apparent conflict in the medical evidence of record. 7. Entitlement to service connection for obstructive sleep apnea The February 2021 VA examiner opined that it is less likely than not that obstructive sleep apnea had its onset or is caused by exposure to hazardous fumes, fuel, and particulate matter and/or redundant tissue in the posterior pharynx. The rationale was that sleep apnea was diagnosed in 2010 and merely listed risk factors for sleep apnea without discussing the Veteran's particular disability and whether those risk factors in fact applied to this Veteran. Thus, the claim must be remanded again for an addendum medical opinion which addresses this matter. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Obtain an opinion from an appropriate clinician other than the February 2021 VA examiner regarding the nature and etiology of the Veteran's bilateral thumb disability. The claims file and a copy of this REMAND must be provided for review. After reviewing the record, the clinician must state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral thumb disability is related to active service. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each of the Veteran's thumbs, if appropriate. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for a bilateral thumb disability, alone, is insufficient rationale for a medical nexus opinion. The clinician also is advised not to review or rely upon a February 2021 VA medical nexus opinion in preparing his or her own opinion(s). 3. Obtain an opinion from an appropriate clinician other than the February 2021 VA examiner concerning the nature and etiology of the Veteran's skin disability. The claims file and a copy of this REMAND must be provided for review. After reviewing the record, the clinician must state whether it is at least as likely as not (i.e., a 50 percent or greater probability) any current skin disability is related to active service or any incident of service, including in-service exposure to Gulf War environmental hazards. The examiner also must state whether any current skin disability has an inconclusive etiology or pathophysiology that qualifies as a medically unexplained multi symptom illness. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each skin disability currently experienced by the Veteran, if appropriate. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for a skin disability, alone, is insufficient rationale for a medical nexus opinion. The clinician also is advised not to review or rely upon a February 2021 VA medical nexus opinion in preparing his or her own opinion(s). 4. Obtain an opinion from an appropriate clinician other than the February 2021 VA examiner regarding the nature and etiology of the Veteran's cervical spine degenerative disc disease. The claims file and a copy of this REMAND must be provided for review. After reviewing the record, the clinician must state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's cervical spine degenerative disc disease is related to active service. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for cervical spine degenerative disc disease, alone, is insufficient rationale for a medical nexus opinion. The clinician also is advised not to review or rely upon a February 2021 VA medical nexus opinion in preparing his or her own opinion(s). 5. Obtain an opinion from an appropriate clinician other than the February 2021 VA examiner regarding the nature and etiology of the Veteran's disability manifested by gout of bilateral big toes and feet. The claims file and a copy of this REMAND must be provided for review. After reviewing the record, the clinician must state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's gout of bilateral big toes and feet is related to active service. The clinician next is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected hypertension or the medications prescribed to treat it, including Valsartan (Diovan), Lisinopril, and HCTZ, caused or aggravated his gout of bilateral big toes and feet. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each of the Veteran's feet, if appropriate. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for gout of bilateral big toes and feet, alone, is insufficient rationale for a medical nexus opinion. The clinician also is advised not to review or rely upon a February 2021 VA medical nexus opinion in preparing his or her own opinion(s). 6. Obtain an opinion from an appropriate clinician other than the February 2021 VA examiner regarding the etiology of the Veteran's currently diagnosed bilateral elbow disability. The claims file and a copy of this REMAND must be provided for review. After reviewing the record, the clinician must state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral elbow disability is related to active service. If the clinician finds no diagnosis of a right elbow disability, then he or she is asked to reconcile this fact with the diagnosis of intermittent bilateral lateral epicondylitis, left greater than right, contained in the March 2018 VA examination report. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each of the Veteran's elbows, if appropriate. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for a bilateral elbow disability, alone, is insufficient rationale for a medical nexus opinion. The clinician also is advised not to review or rely upon a February 2021 VA medical nexus opinion in preparing his or her own opinion(s). 7. Obtain an opinion from an appropriate clinician other than the February 2021 VA examiner regarding the etiology of any currently diagnosed bilateral ankle disability. The claims file and a copy of this REMAND must be provided for review. After reviewing the record, then the clinician must state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral ankle disability is related to active service. The clinician next must state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a service-connected disability caused or aggravated his bilateral ankle disability. If the examiner finds no diagnosis of a bilateral ankle disability, then he or she must reconcile this finding with the diagnoses of intermittent Achilles tendonitis and intermittent anterior tendonitis found in the March 2018 VA examination report. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each of the Veteran's ankles, if appropriate. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for a bilateral ankle disability, alone, is insufficient rationale for a medical nexus opinion. The clinician also is advised not to review or rely upon a February 2021 VA medical nexus opinion in preparing his or her own opinion(s). 8. Obtain an opinion from an appropriate clinician other than the February 2021 VA examiner regarding the etiology of the Veteran's obstructive sleep apnea. The claims file and a copy of this REMAND must be provided for review. After reviewing the claims file, the clinician must state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's obstructive sleep apnea had onset during or is caused by exposure to hazardous fumes, fuel, and particulate matter and/or redundant tissue in the posterior pharynx. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for obstructive sleep apnea, alone, is insufficient rationale for a medical nexus opinion. The clinician also is advised not to review or rely upon a February 2021 VA medical nexus opinion in preparing his or her own opinion(s). 9. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.N., 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.