Citation Nr: 21015186 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 13-12 688 DATE: March 16, 2021 REMANDED The issues of entitlement to service connection for an arthritic condition, to include as secondary to service-connected posttraumatic stress disorder (PTSD), hypertension, and obstructive sleep apnea; diabetes mellitus; erectile dysfunction, to include as secondary to diabetes mellitus and service-connected PTSD, hypertension, and obstructive sleep apnea; and peripheral neuropathy of the bilateral upper and lower extremities, to include as secondary to diabetes mellitus and service-connected PTSD, hypertension, and obstructive sleep apnea, are remanded for additional development. REASONS FOR REMAND The Veteran served on active duty from October 1961to August 1962, with additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the Army National Guard from July 1954 to October 1965, and the United States Naval Reserve from February 1987 to April 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal from May 2012 and February 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In January 2018, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In May 2018 and September 2020, the Board remanded the claims for further evidentiary development. Because the requested development has not been completed, however, further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. The Board remanded this appeal in September 2020 so that the Agency of Original Jurisdiction (AOJ) could obtain a VA examination and addendum VA medical opinion, and then readjudicate the Veteran’s claim for service connection for bilateral hearing loss. In January 2021, the AOJ issued a supplemental statement of the case (SSOC) continuing to deny service connection for the remanded medical conditions. 1. Arthritic Condition The Veteran contends that his arthritic condition is due to his exposure to cold or extreme environments during his military service. The Veteran alternatively contends that his inflammatory arthritis is caused or aggravated by his service-connected PTSD, obstructive sleep apnea, and hypertension and he has submitted medical literature to support these contentions. Post-service private medical treatment records document diagnosis and treatment of inflammatory arthritis, an autoimmune condition. Pursuant to the September 2020 remand, the Veteran was afforded a VA non-degenerative arthritis examination in November 2020. The examiner noted the Veteran’s contentions and diagnosed the Veteran with osteoarthritis. The examiner opined that the Veteran’s osteoarthritis was less likely than not related to service. In a January 2021 addendum opinion, the examiner explained that while studies have shown that cold weather affects arthritis and joint pain, there is no current medical literature that shows that cold weather itself causes osteoarthritis. The examiner also indicated that osteoarthritis is the most common type of arthritis. The examiner stated that when the cartilage – the slick, cushioning surface on the ends of bones – wears away, bone rubs against bone, causing pain, swelling and stiffness. The examiner also stated that over time, joints can lose strength and pain may become chronic. The examiner indicated that risk factors include excess weight, family history, age and previous injury (i.e., an anterior cruciate ligament, or ACL tear). Significantly, however, the examiner’s rationale is internally inconsistent, did not address the lay statements of record noting joint pain since service, and did not address the Veteran’s contentions that his inflammatory arthritis is an autoimmune condition or the medical literature he submitted that discusses PTSD and the risk of autoimmune conditions, including rheumatoid arthritis, among military personnel and the prevalence of insomnia and sleep apnea among veterans with arthritis. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). 2. Diabetes Mellitus and Associated Conditions The Veteran contends that his diabetes mellitus was either caused by or a result of his military service. Alternately, the Veteran asserts that his service-connected PTSD, including the associated alcohol use, aggravated his diabetes mellitus condition. The medical evidence of record documents a current diagnosis of diabetes mellitus. In addition, the Veteran testified at the January 2018 hearing that his erectile dysfunction as well as upper and lower extremity neurological conditions are associated with his diabetes. The Veteran also contends that his erectile dysfunction may also be due to the alcohol use or medications associated with his service-connected PTSD. Pursuant to the September 2020 remand, the Veteran was afforded a VA diabetes mellitus examination in November 2020. The examiner opined that the Veteran’s diabetes was less likely than not related to service. In rendering a negative opinion, the examiner provided a conclusory rationale with no more than a bare reference to the medical literature submitted by the Veteran. See also Barr. The examiner also did not address the Veteran’s other associated conditions of erectile dysfunction and upper and lower extremity neurological conditions or the Veteran’s contention that his alcohol use due to service-connected to PTSD caused or aggravated his diabetes mellitus. By issuing an SSOC without obtaining adequate VA opinions, the AOJ did not substantially comply with the Board’s September 2020 remand order. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board’s remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service diabetes mellitus symptomatology, such as family members and friends. He should also feel free to submit similar statements regarding his arthritic condition claim. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Schedule the Veteran for VA examination to ascertain the nature and etiology of his arthritic condition. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. (a.) The examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the Veteran’s inflammatory arthritis began in service or is otherwise related to service? Please explain why or why not, specifically discussing the Veteran’s reports of the rigors of service, and his exposure to cold weather, and the Veteran’s periods of service with the Army National Guard from July 1954 to October 1965, and the United States Naval Reserve from February 1987 to April 1998. (b.) If the answer to question (a) is negative, is it at least as likely as not that inflammatory arthritis was caused by a service-connected disability, to include the Veteran’s service-connected PTSD and associated alcohol use and sleep impairment, hypertension, and sleep apnea? Please explain why or why not. (c.) If not caused by a service-connected disability, is it at least as likely as not that the Veteran’s inflammatory arthritis has been worsened beyond normal progression (as opposed to temporary exacerbations of symptoms) by a service-connected disability, to include the Veteran’s service-connected PTSD and associated alcohol use and sleep impairment, hypertension, and sleep apnea? Please explain why or why not. (d.) If the examiner finds that Veteran’s inflammatory arthritis has been worsened beyond normal progression (aggravated) by a service-connected disability, please describe the degree in aggravation beyond the baseline level of the diabetes that is attributed to the service-connected disability (e.g., change in the severity of diabetic symptoms, manifestation of diabetic complications, and etc.). (e.) For questions (b) through (d), please specifically comment on the medical literature submitted by the Veteran in February 2021. (f.) A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. Schedule the Veteran for VA examination to ascertain the nature and etiology of his diabetes mellitus. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. (a.) The examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the Veteran’s diabetes mellitus began in service or is otherwise related to service? Please explain why or why not. (b.) If the answer to question (a) is negative, is it at least as likely as not that the diabetes was caused by a service-connected disability, to include the Veteran’s service-connected PTSD and associated alcohol use and sleep impairment, hypertension, and sleep apnea? Please explain why or why not. (c.) If not caused by a service-connected disability, is it at least as likely as not that the Veteran’s diabetes has been worsened beyond normal progression (as opposed to temporary exacerbations of symptoms) by a service-connected disability, to include the Veteran’s service-connected PTSD and associated alcohol use and sleep impairment, hypertension, and sleep apnea? Please explain why or why not. (d.) If the examiner finds that Veteran’s diabetes has been worsened beyond normal progression (aggravated) by a service-connected disability, please describe the degree in aggravation beyond the baseline level of the diabetes that is attributed to the service-connected disability (e.g., change in the severity of diabetic symptoms, manifestation of diabetic complications, and etc.). (e.) For questions (b) through (d), please specifically comment on the article submitted by the Veteran entitled, Relationship Between Posttraumatic Stress Disorder, and Type 2 Diabetes in a Population Based Cross Sectional Study with 2970 Patients. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 4. Schedule the Veteran for VA examinations to ascertain the nature and etiology of his erectile dysfunction and bilateral upper and lower extremity peripheral neuropathy. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. (a.) The examiner should state whether it is at least as likely as not (e.g. at least a 50 percent probability or greater) that the Veteran’s erectile dysfunction or peripheral neuropathy began in service or are otherwise related to service? Please explain why or why not. (b.) If the answer to question (a) is negative, is it at least as likely as not that the Veteran’s erectile dysfunction or peripheral neuropathy was caused by diabetes mellitus? Please explain why or why not. For purposes of this question, the examiner should presume that diabetes mellitus is service-connected. (c.) If the answer to question (a) is negative, is it at least as likely as not that the Veteran’s erectile dysfunction or peripheral neuropathy was caused by a service-connected disability, to include the Veteran’s service-connected PTSD and associated alcohol use, sleep impairment, and medications? Please explain why or why not. (d.) If not caused by a service-connected disability, is it at least as likely as not that the Veteran’s erectile dysfunction or peripheral neuropathy has been worsened beyond normal progression (as opposed to temporary exacerbations of symptoms) by a service-connected disability, to include the Veteran’s service-connected PTSD and associated alcohol use, sleep impairment, and medications? Please explain why or why not. (e.) If the examiner finds that Veteran’s diabetes has been worsened beyond normal progression (aggravated) by a service-connected disability, please describe the degree in aggravation beyond the baseline level of the erectile dysfunction or peripheral neuropathy that is attributed to the service-connected disability (e.g., change in the severity of diabetic symptoms, manifestation of diabetic complications, and etc.). S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.