Citation Nr: 21010454 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 11-10 548 DATE: February 24, 2021 REMANDED Entitlement to service connection for back disability, to include as secondary to service-connected hypertension, is remanded. Entitlement to service connection for headaches, to include as secondary to service-connected hypertension, is remanded. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected hypertension, is remanded. Entitlement to service connection for prostate cancer, to include as secondary to service-connected hypertension, is remanded. Entitlement to service connection for bilateral foot condition, to include pes planus, plantar fasciitis, hallux valgus, and calcaneal spurs, and to include as secondary to service-connected hypertension, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder, and to include as secondary to service-connected hypertension, is remanded. Entitlement to service connection for skin condition, to include as secondary to a service-connected condition, is remanded.   REASONS FOR REMAND The Veteran served on active duty with the United States Army from March 1965 to February 1967. The Veteran died in January 2019. The appellant is the Veteran’s spouse. In a May 2019 notification letter, the appellant was found to be an appropriate substitute in the Veteran’s case. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These claims were previously before the Board in October 2014 and October 2016 when the Board remanded them for further development. Subsequently, the Veteran and the appellant testified at a hearing before the Board held by the undersigned in April 2017. Thereafter, the Board remanded the claims in February 2018 for further development. 1. Entitlement to service connection for back disability, to include as secondary to service-connected hypertension, is remanded. 2. Entitlement to service connection for headaches, to include as secondary to service-connected hypertension, is remanded. The Board finds that the claims must be remanded for additional development as there has not been substantial compliance with the mandates of the February 2018 remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In February 2018, the Board remanded the claims to obtain a VA examination and opinion for each of these claims. The Board acknowledges that the Veteran died in January 2019, so a VA examination is not possible; however, no VA opinion has been obtained regarding these claims. As the record contains no opinion regarding these claims, there has not been substantial compliance with the February 2018 remand order. Thus, the claims must be remanded to obtain an opinion for the Veteran’s claims for service connection for back disability and headaches. See Stegall, 11 Vet. App. at 271. 3. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected hypertension, is remanded. 4. Entitlement to service connection for prostate cancer, to include as secondary to service-connected hypertension, is remanded. Regarding whether the Veteran’s diabetes mellitus and prostate cancer were directly related to service, a VA examiner provided an opinion in September 2020 following the Board’s February 2018 remand. The VA examiner opined that it is less likely as not that the Veteran’s diabetes mellitus and prostate cancer were related to his service. In support of the opinion, the VA examiner reasoned that his review of the record shows that there is no subjective or objective clinical pattern of diabetes mellitus or prostate cancer during service or within one year of service. The VA examiner also noted that the Veteran’s prostate cancer was diagnosed more than 30 years after his separation from service. These opinions are inadequate as they do not address whether the Veteran’s diabetes mellitus and prostate cancer were directly related to his service, irrespective of the lack of a disability pattern in service or within one year of service. As such, a remand is necessary to obtain additional opinions. Regarding secondary service connection, the VA examiner opined that it is less likely as not that the Veteran’s service-connected hypertension caused or aggravated his diabetes mellitus or prostate cancer. The VA examiner reasoned that per his medical literature review, hypertension does not cause or aggravate diabetes mellitus or prostate cancer. The Board finds the secondary service connection opinions are inadequate as the VA examiner did not address any specifics of the Veteran’s disability patterns. As such, a remand is necessary to obtain additional opinions.   5. Entitlement to service connection for bilateral foot condition, to include as secondary to service-connected hypertension, is remanded. As part of the February 2018 Board remand, the Board requested a VA opinion in part as to whether any diagnosed foot condition, aside from the Veteran’s preexisting bilateral pes planus, is related to the Veteran’s service. A VA examiner opined in September 2020 that it is less likely as not that the Veteran’s bilateral hallus valgus was related to his service. In support of the opinion, the VA examiner reasoned that there is no subjective or objective clinical pattern of hallux valgus in service or within a reasonable post separation time frame. The Board finds this opinion to be inadequate as the opinion does not address whether the Veteran’s hallux valgus was directly related to his service, irrespective of the lack of a disability pattern in service or “within a reasonable post separation time frame.” As such, a remand is necessary to obtain an additional opinion. Furthermore, aside from diagnoses of bilateral hallux valgus and bilateral pes planus, the record also contains diagnoses of bilateral plantar fasciitis and bilateral calcaneal spurs. A review of the record illustrates that there are no opinions regarding the diagnosed bilateral plantar fasciitis and bilateral calcaneal spurs. Therefore, a remand is required to obtain an opinion regarding the etiology of the Veteran’s diagnosed bilateral plantar fasciitis and bilateral calcaneal spurs. In addition, in a July 2008 statement, the Veteran contended that his feet were swollen due to his hypertension. As there has been no opinion as to whether the Veteran’s hypertension caused or aggravated his bilateral foot condition, an opinion will be obtained upon remand. 6. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected hypertension, is remanded. Following the February 2018 Board remand to obtain an opinion regarding the etiology of any diagnosed acquired psychiatric disorder, a VA examiner opined in October 2020 that the Veteran did not meet the criteria for PTSD. The VA examiner opined that the Veteran met the criteria for depressive disorder, and she opined that the Veteran’s depressive disorder was less likely than not related to his active service, to include the in-service personal assault. The VA examiner opined that the Veteran’s depressive disorder was at least as likely as not related to chronic pain. However, as part of the rationale as to why the Veteran’s depressive disorder was not related to his service, the examiner reasoned that the Veteran reported no depressive symptoms between 2014 and 2018 and was not prescribed any psychiatric medications during that period. Such rationale conflicts with the opinion that the Veteran’s depressive disorder was related to chronic pain. At the time of his death, the Veteran was service-connected for hypertension, hypertensive retinopathy, and bilateral hearing loss. The examiner did not provide any rationale as to her opinion that the Veteran’s depressive disorder was related to chronic pain. Therefore, as the opinion is unclear and the rationale for direct service connection is inadequate, an additional VA opinion is necessary. Regarding whether the Veteran’s depressive disorder was related to his service-connected hypertension, the VA examiner opined that it is less likely than not that the Veteran’s depressive disorder was caused or aggravated by his hypertension. In support of the opinion, the VA examiner again cited to how the Veteran’s depressive disorder was related to chronic pain, and she again noted that the Veteran reported no depressive symptoms between 2014 and 2018 and was not prescribed any psychiatric medications during that period. An additional VA opinion is necessary as the rationale provided with the October 2020 opinion is inadequate as there is no discussion of whether the Veteran’s hypertension caused chronic pain. 7. Entitlement to service connection for skin condition is remanded. In the February 2018 Board remand, the Board requested a VA opinion for any diagnosed skin condition that existed since July 2008. VA treatment records illustrate that the Veteran was diagnosed with tinea pedis and dermatitis since July 2008. A September 2020 VA opinion addresses whether the Veteran’s diagnosed dermatitis is directly related to his service. However, the opinion indicates that tinea pedis was not a diagnosis in the Veteran’s VA records and so an opinion was not needed on that condition. However, April 2017 VA records specifically reflect a diagnosis of tinea pedis. As such, as the disability existed during the period on appeal, a remand is required to obtain an opinion as to the etiology of the Veteran’s diagnosed tinea pedis. Additionally, the appellant contended at the April 2017 Board hearing that the Veteran’s rashes were secondary to his prostate cancer. As the Veteran’s claim for service connection for prostate cancer is being remanded, a decision on that claim could significantly impact a decision on the issue of service connection for skin condition. Thus, the issues are inextricably intertwined, and a remand of the claim for service connection for skin condition is required. The matters are REMANDED for the following actions: 1. Obtain a medical opinion from an appropriate medical professional for the Veteran’s back condition. The electronic claims file must be made available to the medical professional for review in connection with the request for an opinion. After reviewing the claims file, the medical professional should address the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s back condition was related to the Veteran’s service, to include from an in-service personal assault during basic training or treatment received for a back injury in December 1966? For the purposes of providing this opinion the examiner should consider the Veteran’s statements regarding in-service incidents to be credible. (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s back disability was caused by his service-connected hypertension? (c.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s back disability was aggravated (that is, any increase in severity beyond the natural progression of the condition) by the Veteran’s service-connected hypertension? If the Veteran’s back disability was aggravated by his service-connected hypertension, the medical professional should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements in the record as to the nature, severity, and frequency of his observable symptoms over time. The medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. Obtain a medical opinion from an appropriate medical professional for the Veteran’s headaches. The electronic claims file must be made available to the medical professional for review in connection with the request for an opinion. After reviewing the claims file, the medical professional should address the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s chronic headaches were related to the Veteran’s service, to include from an in-service personal assault during basic training? For the purposes of providing this opinion the examiner should consider the Veteran’s statements regarding the in-service incident to be credible. (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s chronic headaches were caused by his service-connected hypertension, to include any medications taken for hypertension? (c.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s chronic headaches were aggravated (that is, any increase in severity beyond the natural progression of the condition) by the Veteran’s service-connected hypertension, to include any medications taken for hypertension? If the Veteran’s chronic headaches were aggravated by his service-connected hypertension, the medical professional should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements in the record as to the nature, severity, and frequency of his observable symptoms over time. The medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Obtain a medical opinion from an appropriate medical professional for the Veteran’s diabetes mellitus. The electronic claims file must be made available to the medical professional for review in connection with the request for an opinion. After reviewing the claims file, the medical professional should address the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s diabetes mellitus was related to the Veteran’s service? (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s diabetes mellitus was caused by his service-connected hypertension? (c.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s diabetes mellitus was aggravated (that is, any increase in severity beyond the natural progression of the condition) by the Veteran’s service-connected hypertension? If the Veteran’s diabetes mellitus was aggravated by his service-connected hypertension, the medical professional should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements in the record as to the nature, severity, and frequency of his observable symptoms over time. The medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. Obtain a medical opinion from an appropriate medical professional for the Veteran’s prostate cancer. The electronic claims file must be made available to the medical professional for review in connection with the request for an opinion. After reviewing the claims file, the medical professional should address the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s prostate cancer was related to the Veteran’s service? (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s prostate cancer was caused by his service-connected hypertension? (c.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s prostate cancer was aggravated (that is, any increase in severity beyond the natural progression of the condition) by the Veteran’s service-connected hypertension? If the Veteran’s prostate cancer was aggravated by his service-connected hypertension, the medical professional should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements in the record as to the nature, severity, and frequency of his observable symptoms over time. The medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. Obtain a medical opinion from an appropriate medical professional for the Veteran’s bilateral foot condition. The electronic claims file must be made available to the medical professional for review in connection with the request for an opinion. After reviewing the claims file, the medical professional should address the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s diagnosed plantar fasciitis, hallux valgus, and/or calcaneal spurs were related to the Veteran’s service, to include walking and running in wet areas during service and wearing service issued boots that were too small? In addressing this question, the medical professional is asked to address the Veteran’s diagnosed plantar fasciitis, hallux valgus, and calcaneal spurs individually. (b.) Is it at least as likely as not (a 50 percent or greater probability) that any bilateral foot condition was caused by his service-connected hypertension? (c.) Is it at least as likely as not (a 50 percent or greater probability) that any bilateral foot condition was aggravated (that is, any increase in severity beyond the natural progression of the condition) by the Veteran’s service-connected hypertension? If the Veteran’s bilateral foot condition was aggravated by his service-connected hypertension, the medical professional should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements in the record as to the nature, severity, and frequency of his observable symptoms over time. The medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. 6. Obtain a medical opinion from an appropriate medical professional for the Veteran’s acquired psychiatric disorder. The electronic claims file must be made available to the medical professional for review in connection with the request for an opinion. After reviewing the claims file, the medical professional should address the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s depressive disorder was related to the Veteran’s service, to include from an in-service personal assault? For the purposes of providing this opinion the medical professional should consider the Veteran’s statements regarding experiencing an in-service personal assault to be credible. (b.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s depressive disorder was caused by his service-connected hypertension? (c.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s depressive disorder was aggravated (that is, any increase in severity beyond the natural progression of the condition) by the Veteran’s service-connected hypertension? In addressing questions (b.) and (c.), the medical professional is asked to address the October 2020 VA opinion, which reflects that the Veteran’s depressive disorder was at least as likely as not attributable to chronic pain. If the Veteran’s depressive disorder was aggravated by his service-connected hypertension, the medical professional should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements in the record as to the nature, severity, and frequency of his observable symptoms over time. The medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. 7. Obtain a medical opinion from an appropriate medical professional for the Veteran’s skin condition. The electronic claims file must be made available to the medical professional for review in connection with the request for an opinion. After reviewing the claims file, the medical professional should address the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s tinea pedis was related to the Veteran’s service, to include walking and running in wet areas during service and wearing service issued boots that were too small? (b.) If, and only if, it is determined that the Veteran’s prostate cancer was at least as likely as not related to service, is it at least as likely as not (50 percent or greater probability) that the Veteran’s skin condition was caused by his prostate cancer? (c.) If, and only if, it is determined that the Veteran’s prostate cancer was at least as likely as not related to service, is it at least as likely as not (50 percent or greater probability) that the Veteran’s skin condition was aggravated by (i.e., any increase in the severity beyond its natural progression) his prostate cancer? The medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Breitbach, 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.