Citation Nr: 21023100 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-32 742 DATE: April 20, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected type 2 diabetes mellitus and peripheral neuropathy, is remanded. Entitlement to service connection for nonmelanoma skin cancer, to include as due to exposure to herbicide agents, is remanded. Entitlement to a rating in excess of 10 percent for bilateral pes planus with plantar fasciitis, to include whether separate disability ratings for pes planus and plantar fasciitis are warranted, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1966 to November 1969, including service in the Republic of Vietnam. These matters are before the Board of Veterans’ Appeals (Board) on appeal from November 2011, November 2013, and July 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Veteran testified before a Veterans Law Judge (VLJ) at a video conference hearing. However, due to technical difficulties, the hearing did not record properly and a written transcript of the proceeding could not be made. Consequently, the Veteran opted to have a second hearing via video conference. In August 2018, the Veteran testified before the undersigned VLJ at a video conference hearing. A transcript of the hearing is of record. The Board remanded these matters in September 2020 for additional development. Unfortunately, the Board is not satisfied that there was substantial compliance with its prior remand instructions; therefore, the appeal must be remanded once again. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected type 2 diabetes mellitus and peripheral neuropathy, is remanded. The Veteran contends that his current diagnosis of obstructive sleep apnea was caused or aggravated by his service-connected type 2 diabetes mellitus and associated peripheral neuropathy. More specifically, he asserts that weight gain stemming from the treatment of these service-connected disabilities led to the worsening of his sleep apnea. The Board notes that the Veteran currently takes glipizide for glucose control and gabapentin for neuropathic pain. The Veteran has submitted medical literature showing that a relationship may exist between these medications and weight gain and, in turn, the worsening of symptoms of sleep apnea. In the September 2020 remand, the Board directed the RO to obtain a medical opinion from a VA examiner that adequately addresses the nature and etiology of the Veteran’s sleep apnea, to include his contention that his sleep apnea significantly worsened after he developed diabetes mellitus. The Board specifically directed the VA examiner to consider and discuss the medical literature submitted by the Veteran in the provided medical opinion. Pursuant to these instructions, the Veteran underwent a VA sleep apnea examination in November 2020. Upon examination, the VA examiner opined that the Veteran’s sleep apnea is less likely than not proximately due to or the result of a service-connected condition. In her rationale, the examiner stated only that the weight of the evidence, including the literature provided by the Veteran, is against a relationship between type 2 diabetes mellitus and/or peripheral neuropathy, to include weight gain caused by medications taken for these conditions. The examiner further added that “weight gained caused by medication like gabapentin is transient and known to resolve with discontinuation [or] change to another medication.” The Board finds this VA opinion to be inadequate. First, the examiner’s opinion is conclusory and not supported by sufficient medical rationale. Next, the opinion does not discuss the favorable medical literature submitted by the Veteran or consider whether a relationship may exist between the Veteran’s documented weight gain caused by diabetes medications and the onset or worsening of his sleep apnea. In this regard, the examiner’s remark that weight gain caused by medication like gabapentin is known to resolve with discontinuation is irrelevant to this particular Veteran’s case because he has not stopped taking his medications. Finally, the examiner did not address the issue of aggravation with regard to secondary service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 102, 124 (2007); see also El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). In light of the above, the Board finds that the record still does not contain a medical opinion that is adequate to allow the Board to fairly adjudicate the Veteran’s claim. As such, the claim must be remanded once again because the RO did not comply with the Board’s prior remand directives to obtain an adequate medical opinion on the Veteran’s behalf. See Stegall, 11 Vet. App. at 268. On remand, an addendum medical opinion must be obtained from a qualified VA examiner that is adequate for the Board to make an informed decision on the Veteran’s claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). 2. Entitlement to service connection for nonmelanoma skin cancer, to include as due to exposure to herbicide agents, is remanded. The Veteran seeks service connection for nonmelanoma skin cancer, which he contends is due to exposure to herbicide agents and/or excessive sun exposure while serving in Vietnam. VA treatment records show that he has been treated for multiple occurrences of basal cell and squamous cell carcinomas on his face, arms, legs, and back during the period of appeal. At the Board hearing, the Veteran testified that he suffered repeated sun burns while in Vietnam. The Board notes that nonmelanoma skin cancer is not a disease found to be presumptively associated with exposure to herbicide agents; however, service connection may still be granted on a direct basis if there is evidence that the disease is related to herbicide agent exposure. See 38 C.F.R. § 3.309(e); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this regard, the Veteran submitted a medical study which concludes that herbicide agent exposure may be associated with the development of nonmelanotic invasive skin cancer. In the September 2020 remand, the Board directed the RO to obtain a medical opinion from a qualified VA examiner that adequately addresses the Veteran’s contentions with regard to his skin cancer. Pursuant to the remand, the Veteran underwent a VA examination in November 2020. Upon examination, the VA examiner, who is noted to be a neurologist, stated that since the Veteran’s last excision biopsy in September 2019, there has been no reoccurrence of the skin lesions; therefore, there is no evidence of the claimed condition of nonmelanoma skin cancer. The examiner then stated that “the literature provided by the Veteran and weight of the peer-reviewed medical literature is against a relationship (cause, effect, or aggravation, if any) between conceded exposure to herbicide agents and/or excessive sun exposure during service in Vietnam and claimed condition [of] ‘nonmelanoma skin cancer.’” However, the examiner did not provide a rationale for this conclusion. As such, the opinion is inadequate. See Nieves-Rodriguez, 22 Vet. App. at 295; Stefl, 21 Vet. App. at 124. In light of the above, the Board finds that the record still does not contain a medical opinion that is adequate to allow the Board to fairly adjudicate the Veteran’s claim. As such, the claim must be remanded once again because the RO did not comply with the Board’s prior remand directives to obtain an adequate medical opinion on the Veteran’s behalf. See Stegall, 11 Vet. App. at 268. On remand, an addendum medical opinion must be obtained from a qualified VA examiner that is adequate for the Board to make an informed decision on the Veteran’s claim. See Barr, 21 Vet. App. at 311-12; Douglas, 23 Vet. App. at 26. The Board reminds the VA examiner that the nature and etiology of the Veteran’s nonmelanoma skin cancer must be thoroughly addressed in the requested opinion, even if the condition is not currently present or is deemed resolved. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 3. Entitlement to a rating in excess of 10 percent for bilateral pes planus with plantar fasciitis, to include whether separate disability ratings for pes planus and plantar fasciitis are warranted, is remanded. The Veteran seeks an increased rating for his service-connected bilateral pes planus with plantar fasciitis, which he contends is worse than contemplated by his currently-assigned disability rating. The Veteran additionally argues that he should be awarded separate ratings for pes planus and plantar fasciitis as they are wholly distinct disabilities with different symptomatology. In the September 2020 remand, the Board determined that a contemporaneous VA foot conditions examination was necessary in order to properly evaluate the Veteran’s bilateral pes planus and plantar fasciitis. In its remand directives, the Board specifically instructed the VA examiner to specify which of the Veteran’s symptoms are attributed to pes planus and which are attributed to plantar fasciitis. Pursuant to the remand, the Veteran underwent a VA foot conditions examination in November 2020. Initially, the Board notes that the examination was performed by a VA doctor who specializes in neurology. The examiner noted on the examination report that the Veteran reported that he has not experienced flare-ups of his plantar fasciitis for years and that his condition is currently asymptomatic. As such, the examiner did not attempt to differentiate which of the Veteran’s symptoms are attributed to his pes planus versus his plantar fasciitis, as requested by the Board in the examination directives. In a January 2021 statement, the Veteran disputed the accuracy of the November 2020 VA foot conditions examination, which he predominately attributed to a significant language barrier between himself and the VA examiner. The Veteran denied that his bilateral foot disabilities are asymptomatic and stated that his foot pain has only continued to worsen in severity. He also stated that he continues to experience flare-ups of his plantar fasciitis, which he self-treats with stretching and pain relief cream until the flare-up subsides. The Veteran further alleged that the November 2020 VA examiner only spent one minute looking at his feet while standing and did not examiner the bottoms of his feet for callosities. The Board notes that the Veteran’s complaints of bilateral foot pain are consistent with his VA treatment records, Board hearing testimony, and other lay statements of record. In light of the Veteran’s credible concerns with how the examination was conducted, and because the examiner did not attempt to respond to the Board’s directives, the Board finds the November 2020 examination to be inadequate. Therefore, the Veteran’s increased rating claim must be remanded once again because the RO did not comply with the Board’s prior remand directive to obtain an adequate medical examination on the Veteran’s behalf. See Stegall, 11 Vet. App. at 268. On remand, the Veteran must be afforded a new VA foot conditions examination that is adequate for the Board to make an informed decision on the Veteran’s claim. In this regard, the RO must ensure that the Veteran undergoes an examination with a qualified medical professional, if possible, a VA doctor (M.D.) who specializes in podiatry, who fully assesses the Veteran’s current bilateral foot disabilities, as outlined in the directives below. See Barr, 21 Vet. App. at 311-12 (2007). Accordingly, the matters are REMANDED for the following actions, keeping in mind that none of the examiners below should have previously provided opinions on this Veteran: 1. Forward the Veteran’s claims file to VA physician(s) of appropriate expertise to determine the nature and etiology of his claimed disabilities of sleep apnea and nonmelanoma skin cancer. In-person VA examinations should not be scheduled unless deemed necessary by the examiner(s) or otherwise required by the evidence. The examiner(s) must review the Veteran’s entire claims file, to include a copy of this REMAND, and note the review in the examination report. Thereafter, the respective examiner must provide a fully-articulated medical opinion addressing the following: Sleep Apnea (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea is caused by his service-connected type 2 diabetes mellitus and/or peripheral neuropathy, to include weight gain caused by the medications he takes to treat these diseases? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea is aggravated by (increased in severity beyond its natural progression) his service-connected type 2 diabetes mellitus and/or peripheral neuropathy, to include weight gain caused by the medications he takes to treat these diseases? If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record or the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must provide separate responses to questions (a) and (b). The examiner is reminded that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. In providing the requested opinion, the examiner must specifically consider and address the Veteran’s relevant lay statements of record and hearing testimony, as well as the following evidence: i. April 6, 2011 VA Primary Care Nursing Note stating that the Veteran has a history of sleep apnea, which he states “has come back since he has been diagnosed with [diabetes mellitus]”; ii. Foster, Gary D., et al., Obstructive Sleep Apnea Among Obese Patients with Type 2 Diabetes, DIABETES CARE, volume 32, number 6 (June 2009); iii. Young, Wise, Ph.D, M.D., Gabapentin: Neuropathic Pain and Body Weight Gain, online article submitted by the Veteran in May 2011; and iv. Sleep Apnea and Diabetes… a Lethal Combination, online article submitted by the Veteran in May 2011. Nonmelanoma Skin Cancer (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s basal cell and squamous cell carcinomas had their onset during active duty service or are otherwise related to any in-service disease, event, or injury, to include conceded exposure to herbicide agents and/or excessive sun exposure during service in Vietnam? The examiner is reminded that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. In providing the requested opinion, the examiner must specifically consider and address the Veteran’s relevant lay statements of record and hearing testimony, as well as the following evidence: i. Clemons, Mark W., M.D., et al., Association between Agent Orange Exposure and Nonmelanotic Invasive Skin Cancer: A Pilot Study, PLASTIC AND RECONSTRUCTIVE SURGERY, volume 133, issue 2, pages 432-437 (February 2014). The examiner is advised that service connection for a disease can be established on a direct basis as related to exposure to herbicide agents and is not precluded solely because the disease is not listed as a presumptive condition associated with herbicide agent exposure. With respect to each of the above service connection claims, the examiner(s) are advised that the Veteran is competent to report his medical history, including the onset of symptoms, and such reports must be acknowledged and considered in formulating any opinion. The Veteran’s lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and military service, to include on a secondary basis. The examiner(s) must provide a complete rationale for any opinion offered, citing to the examiner’s own expertise, medical principals, and/or evidence in the Veteran’s claims file, when necessary, to support the conclusion reached.   If the requested opinions 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).   The examiner(s) are reminded that failure to comply with the examination directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran’s claims. 2. Schedule the Veteran for a VA examination with a VA physician of appropriate expertise (i.e. a podiatrist) to fully assess the current severity of the Veteran’s bilateral pes planus with plantar fasciitis. The claims file, to include a copy of this REMAND, must be made available to and reviewed by the examiner. A complete history of symptoms must be elicited from the Veteran. Thereafter, the examiner is asked to provide the following: (a) Report the extent of the symptoms and functional deficits associated with the Veteran’s bilateral foot disabilities of pes planus and plantar fasciitis in accordance with VA rating criteria. In this regard, the examiner must complete the corresponding VA disability benefits questionnaire. (b) Specify which symptoms are attributable to the Veteran’s pes planus and which symptoms are attributable to Veteran’s plantar fasciitis. If the various manifestations attributable to pes planus and plantar fasciitis cannot be distinguished from each other, the examiner should so indicate and explain the reasons for that conclusion. The Veteran’s lay statements regarding his symptomatology must be recorded and taken into consideration. The examiner must record all pertinent medical complaints, symptoms, and clinical findings in detail, and any opinion offered must be accompanied by a clear rationale. The examiner is reminded that failure to comply with the examination directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran’s claim. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, 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.