Citation Nr: 21014268 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 13-01 321 DATE: March 11, 2021 REMANDED Entitlement to service connection for diabetes mellitus, type II, (diabetes) is remanded. Entitlement to service connection for a left ankle disability, to include degenerative joint disease and Haglund’s deformity, is remanded. Entitlement to service connection for disabilities of the eye is remanded. Entitlement to service connection for erectile dysfunction is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from April 1964 to August 1967; and had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Air Force Reserves from 1978 to 1999, including a period of ACDUTRA, for two weeks from March 1985 to April 1985. In January 2016, the Veteran testified during a videoconference hearing before the undersigned Veteran’s Law Judge (VLJ). A transcript of this hearing has been associated with the claims file. The Veteran’s claims were before the Board of Veterans Appeals (Board) in September 2018 wherein the claims were remanded for further development. In an August 2019 decision, the Board denied the Veteran’s claims. Thereafter, the Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). Through a Joint Motion for Remand (JMR), the Court sent the Veteran’s claims to the Board for additional action consistent with the JMR. In September 2020, the Veteran submitted a statement that he did not waive agency of original jurisdiction (AOJ) review of evidence related to his appeal. Thus, the Board must remand the Veteran’s claims so that a supplemental statement of the case (SSOC) can be issued, in addition to the development requested by the JMR. 1. Entitlement to service connection for diabetes mellitus, type II, (diabetes) is remanded. The JMR noted that the record raised the theory that the Veteran’s obesity is an intermediate step to service connection for diabetes. Since the Board’s decision, additional precedent has been issued by the Court on obesity as an intermediate step, to include whether obesity can be aggravated by a service-connected disability. See Walsh v. Wilkie, 32 Vet. App. 300 (2020); see also Garner v. Tran, No. 18-5865 (decided January 26, 2021). Medical records address this theory and that the Veteran’s left knee itself may have caused or aggravated the diabetes itself. See Medical Treatment Record - Non-Government Facility, received October 24, 2007; Medical Treatment Record - Non-Government Facility, received September 24, 2020. Given this, an opinion is needed on whether the Veteran’s service-connected left knee condition caused or aggravated obesity which the Veteran contends is an intermediate step to his diabetes mellitus. 2. Entitlement to service connection for a left ankle disability, to include degenerative joint disease and Haglund’s deformity, is remanded. The JMR noted two deficiencies in the Board’s decision related to service connection for his left ankle. First, the record indicates that the Veteran received private treatment and that the claims file did not contain any records from this provider. The Veteran has submitted records from 2018 to 2020 from this provider, but his release indicates that he has been seeing him since 2010. Therefore, upon remand, the AOJ should attempt to obtain the remainder of these records. Second, the decision did not adequately address deficiencies in the November 2018 opinion of the VA examiner, to include whether the Veteran’s left ankle condition was caused by service or were caused or aggravated by the Veteran’s service-connected left knee condition. Regarding direct service connection, the VA examiner’s sole rationale for his opinion that the left ankle disability was not directly related to service was that “the diagnosis of spurring, degenerative joint disease, Haglund’s deformity, and hallux valgus was not made within the year after military separation making a nexus linking these diagnoses to military service very unlikely.” This opinion fails to articulate why these diagnoses would need to be made within a year in order to be related to the Veteran’s military service. Moreover, the examiner failed to address a March 1985 service treatment record (STR) showing a complaint of left ankle pain after running an obstacle course during a period of ACDUTRA. Concerning secondary service connection, the Board specifically noted in the decision on appeal that the VA examiner failed to address the Veteran’s statements that he has pain and tenderness at the back of his left heel/ankle from wearing shoes with a back that rubs on that area, and that those shoes were required due to his service-connected left knee and back disabilities. However, the also Board noted that “VA records show that Veteran has been wearing backless shoes since December 2006” which would prevent rubbing. However, the December 2006 VA record does not actually indicate that the Veteran has worn backless shoes since that time (it was only recommended that he do so). Further, the decision does not address whether the shoes the Veteran wore at least prior to that date may have caused his Haglund’s deformity: the Veteran had been service-connected for a left knee disability since 1996 and the December 2006 VA record shows that the Veteran already had a diagnosis of Haglund’s deformity at the time the physician recommended he switch to backless shoes. Further, the issue of entitlement to service connection for a left ankle disability is inextricably intertwined with the adjudication of the claim of entitlement to service connection for diabetes mellitus, type II as the Veteran claims that his left ankle disability is secondary to his diabetes; therefore, remand of these issues is appropriate. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). 3. Entitlement to service connection for disabilities of the eye is remanded; and, 4. Entitlement to service connection for erectile dysfunction is remanded. The issues of entitlement to service connection for disabilities of the eye and erectile dysfunction are inextricably intertwined with the adjudication of the claim of entitlement to service connection for diabetes mellitus, type II as the Veteran claims that his left ankle disability is secondary to his diabetes; therefore, remand of these issues is appropriate. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Obtain records from Dr. Branch from 2010 to the present. See Medical Treatment Record - Non-Government Facility, received October 8, 2020. Make two requests for records from Dr. Branch, unless it is clear after the first request that a second request would be futile. 2. Thereafter provide the Veteran’s file to a qualified clinician to provide opinions on the Veteran’s claimed disabilities. An in-person examination is not required unless deemed necessary and appropriate by the clinician. The clinician should be provided a copy of this remand order and review the medical evidence in the claims file. Thereafter, the examiner should answer the following questions. a. Is it at least as likely as not that the Veteran’s service-connected left knee condition caused or aggravated his obesity which the Veteran contends is an intermediate step to his diabetes mellitus condition? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. The clinician’s attention is invited to Medical Treatment Record - Non-Government Facility, received October 24, 2007 b. Is it at least as likely as not that the Veteran’s service-connected left knee condition caused or aggravated his diabetes mellitus condition? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. The clinician’s attention is invited to Medical Treatment Record - Non-Government Facility, received October 24, 2007; Medical Treatment Record - Non-Government Facility, received September 24, 2020 c. Is it at least as likely as not that the Veteran’s left ankle disability is caused or related to his military service? In answering this question, the clinician should address whether the Veteran’s diagnoses of spurring, degenerative joint disease, Haglund’s deformity, and hallux valgus would need to be diagnosed within one year of service to link them to the Veteran’s military service. Further, the clinician should address the March 1985 STR showing a complaint of left ankle pain after running an obstacle course during a period of ACDUTRA. See STR-Medical, received August 28, 2014, page 12 f 107. d. Is it at least as likely as not that the Veteran’s left ankle disability is caused or aggravated by his service-connected left knee disability? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. The clinician should address the December 2006 VA record that recommended the Veteran wear backless shoes due to his Haglund’s deformity and that the Veteran had been service-connected for a left knee disability since 1996 and the December 2006 VA record shows that the Veteran already had a diagnosis of Haglund’s deformity at the time the physician recommended he switch to backless shoes. See Medical Treatment Record-Government Facility, received October 9, 2008, page 4 of 10. e. Regardless of whether the Veteran’s diabetes mellitus is found to be service-connected, is it at least as likely as not that the Veteran’s 1) left ankle disability 2) eye disabilities and 3) erectile dysfunction is caused or aggravated by his diabetes mellitus disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. See Medical Treatment Record-Non-Government Facility, received September 24, 2020. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.