Citation Nr: 21008247 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 15-10 171 DATE: February 12, 2021 REMANDED Entitlement to a compensable rating for service-connected verrucae, penis and right leg is remanded. Entitlement to an initial increased rating in excess of 10 percent for right medial epicondylitis is remanded. Entitlement to an initial increased rating in excess of 10 percent for left medial epicondylitis is remanded. Entitlement to service connection for right shoulder rotator cuff tear, claimed as secondary to service-connected right and left medial epicondylitis is remanded. Entitlement to service connection for left shoulder rotator cuff tear, claimed as secondary to service-connected right and left medial epicondylitis, is remanded. Entitlement to service connection for total disability rating based on individual unemployability (TDIU) is remanded. REFFERED In November 2020, the Veteran raised the issue that his steroid cream used to treat his service-connected verrucae, penis and right leg condition caused his diagnosed prostate cancer and is thus referred to the Agency of Original Jurisdiction (AOJ) for any appropriate action. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in August 1976 to October 1979 and from November 1979 to March 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2013 and January 2017 rating decisions rendered by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2018. A transcript of that hearing is of record. In June 2019, the Board remanded this appeal for development. As the Agency of Original Jurisdiction (AOJ) did not substantially comply with the remand, another remand regrettably is required. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). REASONS FOR REMAND 1. Entitlement to a compensable rating for service-connected verrucae, penis and right leg The Veteran contends that his verrucae, penis and right leg (skin condition) has worsened over “his private parts.” Specifically, in a November 2020 correspondence the Veteran asserted that his condition has become worse and he has had to increase the use of the hydrocortisone topical steroid cream. In October 2016, the Veteran underwent a private examination for his skin condition. The examiner noted that in the 1970’s the Veteran was diagnosed with dermatis and pruritis from verruca/condyloma. The Veteran reported having outbreaks all of the time even on medication. He has “developed itching to his genital region and thighs and pain with walking and chronic itching.” The Veteran’s spouse also had the itching. The Veteran treats his condition with hydroxyzine, hydrocortisone cream and podofilox. The dermatitis is present on less than 5 percent of the Veteran’s body. The Veteran also has 4 lesions seen on the scrotum being present on less than 5 percent of his body. In light of the Veteran’s assertions of worsening since the previous exam, the Board finds that a new VA examination is required so that the current severity of the Veteran’s skin condition may be determined. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). 2. Entitlement to an initial increased rating in excess of 10 percent for right medial epicondylitis is remanded. 3. Entitlement to an initial increased rating in excess of 10 percent for left medial epicondylitis is remanded. The Veteran seeks a higher rating for his bilateral medial epicondylitis disability. In August 2017, the Veteran was afforded a Compensation and Pension examination. However, the August 2017 examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. In June 2019, the Board remanded this matter to secure an adequate examination addressing the Veteran’s flare-ups and repeated over time limitations. In January 2020, the Veteran underwent an examination for his bilateral medial epicondylitis disability. The examiner provided the Veteran’s range of motion for both of his elbows estimating for flare-ups and for repeated over time measurements. Thus, the examination complied with the directives for providing an addendum opinion. However, the remand directives also required the AOJ to issue a Supplemental Statement of the Case (SSOC), which was not completed. Thus, this matter must be remanded for the AOJ’s adjudication, and issuance of an SSOC. 4. Entitlement to service connection for right shoulder rotator cuff tear, claimed as secondary to service-connected right and left medial epicondylitis is remanded. 5. Entitlement to service connection for left shoulder rotator cuff tear, claimed as secondary to service-connected right and left medial epicondylitis, is remanded. The Veteran contends that his bilateral shoulder rotator cuff tears are secondary to his service-connected bilateral medial epicondylitis disabilities. Secondary service connection may be granted for a disease or injury which resulted from a service-connected disability or was aggravated thereby. 38 C.F.R. § 3.310. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Further, 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 also be service connected. However, a medical opinion as to secondary service connection is inadequate for the Board’s decision as to aggravation if the issue of aggravation is not sufficiently addressed by the examiner. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). An examiner’s determination that the disease or injury at issue is not “related to” the service-connected condition is not sufficient to address the aggravation issue. Id. In regard to secondary service connection, the Veteran was afforded a VA examination in April 2013. The examiner determined that it was “less likely as not” that the Veteran’s shoulder rotator cuff tear conditions were “proximately due to or the result of the Veteran’s service-connected epicondylitis bilateral elbows.” However, this opinion addresses only the causation prong of secondary service connection and thus, provides an insufficient basis upon which to decide the claim. In January 2020, the Veteran underwent a VA examination for his bilateral shoulder rotator cuff tear disabilities. The examiner opined that the Veteran’s diagnosed right rotator cuff tear related to the Veteran’s claimed right shoulder rotator cuff is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected left and right medial epicondylitis. As to the rationale, the examiner stated, “evidence-based peer-reviewed medical literature could not be found to support a connection of cause and effect. Therefore, a nexus has not been established.” The examiner provided the same opinion for the left shoulder. The medical opinion is inadequate because the examiner did not provide an aggravation opinion. The Board cannot make a fully informed decision on the issue of the Veteran’s claimed right and left shoulder rotator cuff tear conditions because no VA examiner has opined whether either condition was aggravated by his service-connected right or left medial epicondylitis. Therefore, the claim must be remanded in order to obtain an addendum opinion regarding aggravation. In addition, the June 2019 remand directives required the AOJ to issue a Supplemental Statement of the Case (SSOC), which was not completed. The Board directs the AOJ to issue a SSOC after obtaining an addendum opinion addressing aggravation. 6. Entitlement to service connection for total disability rating based on individual unemployability (TDIU) is remanded. The Board’s directive regarding the Veteran’s increased rating claims for left and right medial epicondylitis and service connection claims for right and left shoulder rotator cuff tears that are being remanded could potentially have an impact regarding the TDIU issue; therefore, the issue of a TDIU is inexplicably intertwined with the issues being remanded and adjudication of TDIU must be deferred pending the proposed development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his verrucae, penis and right leg (skin condition). The clinician must be provided with and review the entire claims file, to include a copy of this remand. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. The examiner should specifically consider and address the Veteran’s assertion that the Veteran has been prescribed different medications in changing dosages, but his condition continues to worsen. 2. Obtain an addendum opinion from an appropriate clinician for the Veteran’s bilateral shoulder rotator cuff tear disabilities. The clinician must be provided with and review the entire claims file, to include a copy of this remand. Following a review of the evidence of record, to include the Veteran’s lay statements, the clinician should opine: (a.) Whether the Veteran’s left shoulder rotator cuff tears disability is at least as likely as not (50 percent or greater probability) (1) proximately due to his service-connected left or right medial epicondylitis disabilities, (2) aggravated beyond its natural progression by his service-connected left and right medial epicondylitis disabilities. (b.) Whether the Veteran’s right shoulder rotator cuff tears disability is at least as likely as not (50 percent or greater probability) (1) proximately due to his service-connected left or right medial epicondylitis disabilities, (2) aggravated beyond its natural progression by his service-connected left and right medial epicondylitis disabilities. If aggravation is shown, the examiner should quantify the degree of aggravation, if possible. The question of secondary aggravation must be addressed separately from the question of secondary causation. The examiner must note that an opinion to the effect that one disability is not “caused by,” “a result of,” or “secondary to” another disability does not answer the question of aggravation and will necessitate a further opinion. 3. A complete rationale must be provided for all opinions offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 4. The AOJ must review this opinion to ensure it is adequate and complies with the Board’s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 5. When the above development has been completed, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue an additional supplemental statement of the case to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.