Citation Nr: 21008573 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 93-05 314 DATE: February 17, 2021 REMANDED The issues of (1) entitlement to service connection for diabetes mellitus; (2) entitlement to service connection for chronic obstructive pulmonary disease (COPD); (3) entitlement to service connection for hypertension; and (4) entitlement to service connection for a left eyelid disability, characterized as blepharitis, are remanded for further development. REASONS FOR REMAND The Veteran served on active duty from April 1952 to September 1954, with additional service in the United States Army Reserve from October 1956 to April 1960 and from May 1973 to July 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal of rating decisions of Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In a November 1994 decision, the Board noted that the Veteran had submitted an informal claim seeking service connection for blepharitis. It therefore referred this issue to the Agency of Original Jurisdiction (AOJ) for appropriate action. Similarly, in a December 2006 remand, the Board referred the issue of service connection for hypertension to the AOJ for development. Although the Board referred these issues to the AOJ, they were not addressed. Accordingly, in February 2010 and June 2012, the Board again referred the issues of service connection for blepharitis and hypertension to the AOJ for development and adjudication. Following the June 2012 referral, the issues of blepharitis and hypertension were adjudicated initially by the AOJ. The Veteran submitted a timely notice of disagreement but a statement of the case (SOC) was not issued. As such, in January 2016, the Board remanded these issues pursuant to Manlincon v. West. 12 Vet. App. 238 (1999). In October 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Thereafter, in February 2018, the Board denied service connection for prostate cancer, a bladder disorder, appendectomy residuals, and high cholesterol. Additionally, it found that new and material evidence had not been received to reopen a claim for service connection for gastroenteritis. However, the Board granted service connection for a prostate disorder other than prostate cancer and reopened a previously denied claim for service connection for diabetes mellitus. Further, the Board dismissed the issue of entitlement to an earlier effective date for the award of a total disability rating based upon individual unemployability (TDIU) as the Veteran had withdrawn it from appellate consideration. Lastly, the Board remanded the issues of service connection for diabetes mellitus, hypertension, COPD, and a left eyelid disability. The case returned to the Board and, in August 2019, the issues of service connection for diabetes mellitus, hypertension, COPD, and a left eyelid disability were remanded for additional development. These four service connection issues were again remanded by the Board in June 2020. 1. Service Connection for Diabetes Mellitus and Hypertension Although the Board regrets the additional delay, it finds that remand of the issues of service connection for diabetes mellitus and hypertension is warranted due to a lack of substantial compliance with prior remand directives from June 2020. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, in the June 2020 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to provide the Veteran additional medical opinions regarding the issues of service connection for diabetes mellitus and hypertension. The Board requested that the AOJ obtain these opinions from independent medical experts from outside VA. Following the Board’s June 2020 remand, additional medical opinions were obtained in October 2020. However, the opinions were provided by VA contract-examiners, and not independent medical experts not affiliated with the Department. Accordingly, the Board remands the issues of service connection for diabetes mellitus and hypertension for the provision of the additional medical opinions. 2. Service Connection for COPD In regard to the issue of service connection for COPD, the Board finds that remand is warranted for the provision of an additional VA medical opinion. Specifically, in June 2020, the Board noted that a prior opinion from January 2020 was inadequate for adjudicative purposes as it conflicted with the Court of Appeals for Veterans Claims’ (Court) holding in Atencio v. O’Rourke. 30 Vet. App. 74, 90 (2018). In Atencio, the Court held that, in adjudicating a claim involving service connection on a secondary basis, a VA medical opinion is not adequate if it does not address both causation and aggravation, and a rationale is not provided for each theory of entitlement. 30 Vet. App. 74, 90 (2018). In this case, following the June 2020 remand, additional medical opinions regarding COPD were provided in October 2020. However, similar to the January 2020 opinions, the October 2020 VA medical opinions used almost identical rationales in discussing whether the Veteran’s current diagnosis of COPD was caused or aggravated by tuberculosis. Accordingly, the Board finds that remand is warranted for additional VA medical opinions. 3. Service Connection for a Left Eyelid Disability Lastly, similar to the above-remanded issues, the Board finds that service connection for a left eyelid disability must be remanded once again for the provision of an additional VA medical opinion. Specifically, in June 2020, the Board found a prior January 2020 VA medical opinion to be inadequate because it was based, in part, on the lack of chalazia present in September 2018 and January 2020. The Board found this January 2020 opinion to be inadequate because the Board previously found that an October 1991 diagnosis of chalazia satisfied the current disability requirement for service connection. See February 2018 Board Decision and Remand. Indeed, a resolved disability is still considered a “current” disability for VA compensation purposes so long as the disability manifested for some portion of time during the pendency of the appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Accordingly, in June 2020, the Board remanded the issue of service connection for a left eyelid disability for the issuance of a new medical opinion. Following the June 2020 remand, an additional VA eye conditions examination was provided in September 2020. After conducting a physical examination, the examiner opined that it was less likely as not that the Veteran’s chalazia was incurred in or caused by service. However, in support of this opinion, the September 2020 VA examiner again repeated the same rationale as the January 2020 VA examiner—i.e., a link to service was not warranted because chalazia was not present during the physical examination. Accordingly, the Board finds the September 2020 VA medical opinion to be inadequate for adjudicative purposes, warranting remand for the provision of another opinion. The matters are REMANDED for the following action: 1. Forward the Veteran’s claims file to an appropriate VA clinician for a medical opinion about the nature and etiology of any respiratory condition, including COPD. After reviewing the claims file, the clinician should address the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that any respiratory disorder, including COPD, is proximately due to the Veteran’s service-connected endotracheal tuberculosis. (b.) Please state whether it is at least as likely as not (50 percent probability or more) that any respiratory disorder, including COPD, was aggravated (worsened beyond natural progression) by the Veteran’s service-connected endotracheal tuberculosis. In providing responses to parts (a) and (b), the clinician should provide opinions which address causation and aggravation separately. Additionally, the causation and aggravation opinions should each have separate and distinct rationales. Additionally, in providing responses to parts (a) and (b), the clinician should directly address: • April 2011 pulmonary function test (PFT) results; and • the April 2015 VA examiner’s discussion regarding a relationship between tuberculosis and COPD. The clinician should consider medical and lay evidence dated both prior to and since the filing of the claim (July 2012). The clinician must provide a complete rationale for any opinion rendered. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 2. Forward the Veteran’s claims file to an appropriate clinician for a medical opinion about the nature and etiology of the Veteran’s claimed left eyelid condition. After reviewing the claims file, the clinician should address the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s October 1991 diagnosis of chalazia is related to periods of INACDUTRA in 1991. Please note that in providing a response to the above prompt, it is immaterial whether the Veteran had chalazia during any prior VA examination, including in September and January 2020. Rather, the Board has acknowledged that the October 1991 diagnosis of chalazia satisfied the “current” disability requirement for service connection in this case, even though chalazia may have resolved after October 1991. (b.) If the chalazia diagnosed in October 1991 is related to periods of INACDUTRA in 1991, please state whether there are any current residuals of the October 1991 diagnosis. In answering this question, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim (October 1991). The clinician must provide a complete rationale for any opinion rendered. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. Notify the Veteran and his representative that VA is requesting an advisory medical opinion pursuant to 38 U.S.C. § 5109 regarding entitlement to service connection for diabetes mellitus. Then, pursuant to 38 U.S.C. § 5109, forward the Veteran’s claims file to a non-VA, independent medical expert (i.e., neither a VA examiner nor a VA contract examiner) in the field of endocrinology. The entire claims file, including a copy of this Remand, must be made available to and must be reviewed by the expert. The expert should then address the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s diabetes mellitus is proximately due to the Veteran’s service-connected sleep apnea. (b.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s diabetes mellitus was aggravated (worsened beyond natural progression) by the Veteran’s service-connected sleep apnea. In providing responses to parts (a) and (b), it is noted that, for VA compensation purposes, it is not necessary that sleep apnea be service-connected, or even diagnosed, at the time diabetes mellitus was identified. Additionally, in providing responses to parts (a) and (b), the expert should provide opinions which address causation and aggravation separately. Further, the causation and aggravation opinions should each have separate and distinct rationales. Lastly, in providing responses to parts (a) and (b), the expert should directly address a statement by a March 2015 VA examiner that the Veteran had an undiagnosed sleep disorder in service and that complications from such a disorder include diabetes mellitus. The expert should consider medical and lay evidence dated both prior to and since the filing of the claim (July 2013). The expert must provide a complete rationale for any opinion rendered. If the expert cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). Following receipt of the requested opinion, furnish a copy of the opinion to the Veteran and his representative and allow them an adequate time to submit any response. 4. Notify the Veteran and his representative that VA is requesting an advisory medical opinion pursuant to 38 U.S.C. § 5109 regarding entitlement to service connection for hypertension. Then, pursuant to 38 U.S.C. § 5109, forward the Veteran’s claims file to a non-VA, independent medical expert (i.e., neither a VA examiner nor a VA contract examiner) in the field of internal medicine. The entire claims file, including a copy of this Remand, must be made available to and must be reviewed by the expert. The expert should then address the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s hypertension is proximately due to the Veteran’s service-connected sleep apnea. (b.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s hypertension was aggravated (worsened beyond natural progression) by the Veteran’s service-connected sleep apnea. In providing responses to parts (a) and (b), it is noted that, for VA compensation purposes, it is not necessary that sleep apnea be service-connected, or even diagnosed, at the time hypertension was identified. Additionally, in providing responses to parts (a) and (b), the expert should provide opinions which address causation and aggravation separately. Further, the causation and aggravation opinions should each have separate and distinct rationales. Lastly, in providing responses to parts (a) and (b), the expert should directly address a statement by a March 2015 VA examiner that the Veteran had an undiagnosed sleep disorder in service and that complications from such a disorder include hypertension. The expert should consider medical and lay evidence dated both prior to and since the filing of the claim (September 2006). The expert must provide a complete rationale for any opinion rendered. If the expert cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). Following receipt of the requested opinion, furnish a copy of the opinion to the Veteran and his representative and allow them an adequate time to submit any response. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.