Citation Nr: 21006527 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 13-26 269 DATE: February 4, 2021 REMANDED Entitlement to service connection for joint pain in the bilateral hands and fingers (other than as due to left- or right-hand arthritis), knees, and feet is remanded. Entitlement to service connection for a skin disorder to the left foot and right foot (previously addressed as tinea pedis to the bilateral feet) is remanded. Entitlement to service connection for type II diabetes mellitus, to include as a result of herbicide exposure, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for right hand arthritis is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from June 1966 to June 1968. The service connection issues for joint pain, skin disorder to the left and right feet (previously addressed as tinea pedis to the bilateral feet), diabetes mellitus, and hypertension come before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter “the Court”) in December 2018, which granted a joint motion for partial remand vacating and remanding determinations in an April 2018 Board decision. The decisions to reopen service connection claims for tinea pedis to the bilateral feet and for joint pain in the bilateral hands, fingers, knees, and feet and to remand the service connection claims for right hand arthritis and sleep apnea were not disturbed. The Court noted that the Board’s decision withdrawing the appeal for hypertension did not adequately address whether the Veteran understood the consequences of his action in withdrawing the claim. It was also noted the Veteran asserted that the appeal concerning his claim for a skin disorder to the feet had improperly limited the claim to tinea pedis and tinea unguium. The Board finds the issues as listed on title page of this decision remain on appeal. The issues on appeal initially arose from rating decisions in September 2012 and June 2015 by or on behalf of the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at video conference hearings before the undersigned Veterans Law Judge in February 2017 and January 2021. Copies of the transcripts of those hearings are of record. The Court, by incorporating the terms of the JMPR, found the prior determination as to the claim for joint pain in the bilateral hands, fingers, knees, and feet did not adequately address VA treatment records noting chronic and generalized osteoarthritis and did not address a November 2005 private treatment report, received by VA on May 7, 2012, noting Raynaud’s disease was discussed. The JMPR found the holding in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), that pain causing a function loss may be a disability, must be considered in determining whether the Veteran has a current disability. The Board notes that the Veteran’s right hand claim was not an issue addressed by the JMPR, but that at his January 2021 hearing he reported that he had pain in his right fingers associated with arthritis that existed prior to his having broken his right hand and wrist in 1990. Although a July 2019 VA medical opinion addressing the right hand claim stated that “cold is not a factor which is known to be the cause of osteoarthritis;” however, the opinion did not address whether a diagnosis of Raynaud’s disease was indicated. As to the skin disorder (tinea pedis and tinea unguium) and diabetes mellitus claims, the Court found the prior determinations had not adequately addressed the Veteran’s contentions that he was exposed to Agent Orange during service in Korea and did not attempt to verify possible exposure by sending a request to the Joint Services Records Research Center (JSRRC). It was noted that he had specifically contended that approximately two months before his return from service in Korea he had participated in a special detail unloading 50-gallon drums that he believed were likely filled with Agent Orange. Further development is required to assist the Veteran in substantiating his claims as to having been exposed to herbicides. At his January 2021 hearing the Veteran also asserted that his tinea pedis had developed as a result of a cold injury during service. In light of the Veteran’s assertion that his claims for a skin disorder to the feet, in essence, should also include residuals of ingrown toenails/ingrown toenail surgery and cold injury, an additional skin conditions examination is required. As to the hypertension and sleep apnea claims, the Veteran contends that his hypertension developed as a result of Agent Orange exposure and that his sleep apnea developed as a result of an injury in service. At his February 2017 hearing he stated his belief that he had broken his nose in a February 1967 injury resulting in an obstruction to his nostrils causing sleep apnea. A July 2020 private medical opinion noted that the Veteran suffered from a broken nose with nasal obstruction and found that it was more likely than not that he “was suffering from obstructive sleep apnea many years ago, maybe during his service.” It was further noted that obstructive sleep apnea was associated with cardiovascular conditions, such as high blood pressure, and that his untreated obstructive sleep apnea “most likely caused significant health related conditions over the years.” Although a July 2019 VA medical opinion was obtained as to the sleep apnea issue, the examiner is not shown to have adequately considered a May 1968 service treatment report noting a diagnosis of chronic tonsillitis. The Board finds additional development as to these matters are required for adequate determinations.   The matters are REMANDED for the following action: 1. Appropriate action is required to assist the Veteran in substantiating his claim as to having been exposed to herbicides during service in Korea. The Joint Services Records Research Center (JSRRC) must be requested to attempt to verify his specific claim that approximately two months before his return from service in Korea he participated in a special detail unloading 50-gallon drums he believed were likely filled with Agent Orange. 2. If and only if exposure to herbicide agents (e.g., Agent Orange) is established, obtain an opinion to address the question(s) as to whether it is at least likely as not that the Veteran’s diagnosed hypertension: i) had its onset in service or is otherwise etiologically related to active service, including verified herbicide exposure. The examiner should be advised that, although VA regulations do not include hypertension as a presumptive disability associated with herbicide exposure, the National Academy of Sciences (NAS) has moved hypertension from the limited or suggestive category to the category of sufficient evidence of an association. See Veterans and Agent Orange: Update 11 (2018). ii) was proximately due to a service-connected disability. iii) underwent any incremental increase in disability, regardless of its permanence, due a service-connected disability. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. Provide a rationale to support the opinion(s). 3. Schedule the Veteran for a VA examination for a disability manifested by joint pain in the bilateral hands and fingers (other than as due to left-hand arthritis), knees, and feet. 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: Is a disability manifested by joint pain in the bilateral hands and fingers (other than as due to left-hand arthritis), knees, and feet at least as likely as not related to service, including as a result of cold injury? Provide a rationale to support the opinion(s).   4. Schedule the Veteran for a VA examination for a skin disorder to the feet. 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: Is a skin disorder to the feet at least as likely as not related to service, including as a result of cold injury and/or ingrown toenails? Is a skin disorder to the feet at least as likely as not related to in-service exposure to herbicide agents? The examiner is advised that a negative opinion as to herbicide exposure cannot be based solely on the fact that the disability is not on the list of diseases that are presumptively associated with exposure to herbicide agents. Provide a rationale to support the opinion(s). 5. Schedule the Veteran for a VA examination for sleep apnea. 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: Is a sleep apnea disability at least as likely as not related to service, including as a result of chronic tonsillitis and/or injuries sustained in February 1967? Provide a rationale to support the opinion(s). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.