Citation Nr: 21031523 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 19-00 458 DATE: May 24, 2021 REMANDED Service connection for a skin condition is remanded. Service connection for a heart condition is remanded. Service connection for a seizure disorder is remanded. Service connection for a headache condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1977 to July 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from July 2017 and July 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office. The issues on appeal were previously before the Board in August 2020, when they were remanded to the Agency of Original Jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial of the issues in a March 2021 Supplementary Statement of the Case (SSOC), and returned the case to the Board. In the August 2020 remand, the Board directed the AOJ to schedule the Veteran for VA medical examinations to evaluate the nature and etiology of his skin condition, heart condition, headache condition, and seizure disorder claims. The claims file reflects that the AOJ requested the appropriate examinations; however, the clinician failed to address all specific evidence cited by the Board as necessary. Therefore, there has not been substantial compliance with all of the Board's remand directives and further clarification is required. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). 1. Service connection for a skin condition is remanded. In the August 2020 remand, the Board directed the AOJ to provide the Veteran with an examination to determine the nature and etiology of his claimed skin condition. The Board directed the clinician conducting the examination to specifically review and address the Veteran's diagnoses of keratosis and a left ear cyst in November 2019, a lipoma on his back in January 1987, a cyst in March 1979, a rash in May 1979, a report of bumps on his arms in May 2017, a documented rash in June 2017, and stasis dermatitis in August 2018. He was afforded the requested examination in December 2020, which was supplemented with an addendum in February 2021. In the February 2021 addendum, the clinician indicated that no keratosis or left ear cyst was found on the December 2020 examination, and stated that it was not possible to opine on a non-existent condition, as such would be mere speculation. The clinician also indicated that there was no lipoma on the Veteran's back, as in January 1987; no cyst, as in March 1979; no rash, as in May 1979; no bumps on his arms, as in May 2017; and no rash, as documented in June 2017. The clinician again stated that that it was not possible to opine on a non-existent condition, as such would be mere speculation. The clinician noted that, pertaining to the diagnosis of stasis dermatitis in August 2018, chronic skin changes to the Veteran's feet were related to chronic vascular insufficiency and aging. The Board finds that the February 2021 clinician failed to adequately address all of the questions posed by the Board in the August 2020 remand, and further finds that clarification is necessary regarding the etiology of the Veteran's stasis dermatitis. Although the clinician may not have found each of the claimed conditions at the December 2020 examination, the record reflects that the report of bumps on his arms, the documented rash, and the keratosis and left ear cyst were all present during the period on appeal, and constitute current disabilities for the purposes of his appeal. Additionally, the clinician's conclusion that it was not possible to opine on the etiology of such conditions is conclusory and insufficient, as it failed to elaborate on why such an opinion was not possible. See Stelf v. Nicholson, 21 Vet. App. 120, 125 (2007) (the Board may not rely on a medical examiner's conclusory statements if they lack supporting analysis). The Board also notes that the Veteran is now service connected for peripheral artery disease, and it is unclear whether the clinician's statement that his stasis dermatitis was related to chronic vascular insufficiency is a confirmation that the two conditions are related. Thus, remand is necessary for an addendum opinion which addresses all relevant evidence of record and clarifies the nature and etiology of the Veteran's claimed skin conditions. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). 2. Service connection for a heart condition is remanded. In the August 2020 remand, the Board directed the AOJ to provide the Veteran with an examination to determine the nature and etiology of his claimed cardiovascular condition. The Board directed the clinician conducting the examination to specifically review and address the Veteran's service treatment records reflecting abnormal blood pressure readings, and April 1991 records showing high cholesterol and triglycerides, as well as a "moderately enlarged" heart, chest pain, and leg cramps. In the February 2021 addendum, the clinician stated that the instances of abnormal blood pressure during the Veteran's service demonstrated trivial, expected elevations, as well as multiple normal blood pressures. The clinician claimed that blood pressure variations are expected, and did not constitute a diagnosis of hypertension at that time. The clinician noted that the Veteran was not diagnosed with, or treated for, hypertension until 2010, and reported that the documentation of chest pain with exercise and leg cramps during his service did not constitute a specific diagnosis, and did not demonstrate any heart disease or abnormality while in the military. The clinician indicated that the earliest report of cardiomegaly on record was in July 2011, after the Veteran's diagnosis of hypertension, and consistent with that diagnosis. The clinician concluded that his claimed cardiovascular conditions, including occlusive peripheral artery disease, were less likely than not related to his military service. The Board finds that the clinician failed to address all relevant evidence highlighted by the Board in the August 2020 remand, and rendered, in part, an opinion that is inconsistent with VA's findings concerning the etiology of the Veteran's peripheral artery disease. Specifically, the clinician incorrectly stated that the earliest report of cardiomegaly was in July 2011, when the Board noted that his service treatment records show documentation of cardiomegaly in April 1991. Additionally, the clinician did not discuss any potential relationship between the April 1991 lab reports showing high cholesterol and triglycerides and his development of heart disease, and instead merely stated that elevated triglycerides or cholesterol is an independent risk factor for coronary artery disease. Further, the examiner's opinion regarding the etiology of the Veteran's peripheral artery disease, and thereby any potential connection between that condition and another claimed cardiovascular condition, fails to properly consider that his peripheral artery disease was found to be etiologically related to his military service, and is service-connected. Therefore, remand is necessary for an addendum opinion which addresses all relevant evidence of record and properly considers the Veteran's service-connected peripheral artery disease. See Barr, supra. 3. Service connection for a seizure disorder is remanded. In the August 2020 remand, the Board directed the AOJ to provide the Veteran with an examination to determine the nature and etiology of his claimed seizure disorder. The Board directed the clinician conducting the examination to specifically review and address the Veteran's May 2017 record showing no history of seizures; the February 2018 record showing that his wife believed he had a seizure, but he denied it; and his prescription of Levetiraceam, to be taken twice daily, "for seizures." In the December 2020 VA authorized examination, the clinician noted the Veteran's report that he had a single focal seizure of the left arm approximately five years before, which he took medication for daily. In the February 2021 addendum, the clinician seemingly copied the evidentiary analysis given for the negative nexus opinion for the Veteran's cardiovascular condition claim, and indicated that there was no documentation of a seizure disorder or treatment for a seizure in service. The clinician further stated that there was no known or claimed nexus between the Veteran's seizure and any service-connected conditions. The Board finds that the clinician failed to provide an adequate rationale to support the negative nexus opinion given. The clinician offered only conclusory statements and did not elaborate on the etiology of the Veteran's seizure disorder. See Stelf, supra. Accordingly, remand is necessary for an addendum opinion which addresses all relevant evidence of record and provides an adequate reasons and basis for any opinion offered. See Barr, supra 4. Service connection for a headache condition is remanded. In the August 2020 remand, the Board directed the AOJ to provide the Veteran with an examination to determine the nature and etiology of his claimed headache condition. The Board directed the clinician conducting the examination to specifically review and address the Veteran's complaints of possible sinus headaches in November 1979; the July 2019 private opinion including the Veteran's reported onset of headaches with sinus problems; and the article submitted August 2020 entitled, "HeadacheA Sinonasal Symptom and More...A Review Article." In the February 2021 addendum, the clinician noted that the Veteran's previous diagnosis of tension headaches was based on a medical opinion indicating that the condition was caused by depression, sleep apnea, and rhinitis associated with sinusitis. The clinician stated that the Veteran denied any current or recent headaches, or sinus headaches, or having a headache problem. The clinician claimed that there was no objective evidence of pathology related to headaches or sinuses noted in the record. The clinician documented that occasional sinus pain or headaches is a "universal human condition" generally caused by allergies, the occasional cold, or an upper respiratory infection. The clinician concluded that the Veteran's lack of any current or recent headaches indicated that his sinus headaches had resolved, and it was less likely than not that any headache disability was incurred in service or related to an in-service event, injury, or disease. The Board finds that the clinician failed to address all theories of entitlement available to the Veteran, and did not provide an opinion as to whether his tension headache condition diagnosed during the period on appeal was aggravated by his service-connected sinusitis. The Board notes that even though the Veteran's condition may have resolved, the examiner must provide an opinion concerning aggravation of the condition at any relevant time during the period on appeal. The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development is completed, make arrangements to provide the record on appeal to an appropriately qualified clinician for purposes of obtaining a medical opinion as to the nature and etiology of any skin condition the Veteran may have had during the period on appeal. After reviewing the record, the clinician should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any skin condition diagnosed during the period on appeal was related to the Veteran's military service, to include as due to or aggravated by a service-connected disability. In doing so, the examiner should specifically discuss the report of bumps on his arms, the documented rash, and the keratosis and left ear cyst, indicating that the Veteran had diagnoses which were all present during the period on appeal. The examiner should also discuss any relationship between the Veteran's diagnosed stasis dermatitis and his service-connected peripheral artery disease. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the examiner is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran's statements asserting symptomatology. The examiner must provide a comprehensive rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. Specifically, the examiner must indicate whether there was a further need for information or testing, or whether an opinion could not be rendered due to limitations of knowledge in the medical community at large. 3. Make arrangements to provide the record on appeal to an appropriately qualified clinician for purposes of obtaining a medical opinion as to the nature and etiology of any heart condition the Veteran may have had during the period on appeal. After reviewing the record, the clinician should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any heart condition diagnosed during the period on appeal was related to the Veteran's military service, to include as due to or aggravated by a service-connected disability. In doing so, the examiner should specifically discuss the 1991 records documenting cardiomegaly and elevated cholesterol and triglycerides. The examiner should also discuss any relationship between the Veteran's diagnosed heart conditions and his service-connected peripheral artery disease. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the examiner is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran's statements asserting symptomatology. The examiner must provide a comprehensive rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. Specifically, the examiner must indicate whether there was a further need for information or testing, or whether an opinion could not be rendered due to limitations of knowledge in the medical community at large. 4. Make arrangements to provide the record on appeal to an appropriately qualified clinician for purposes of obtaining a medical opinion as to the nature and etiology of any seizure disorder the Veteran may have had during the period on appeal. After reviewing the record, the clinician should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any seizure disorder diagnosed during the period on appeal was related to the Veteran's military service, to include as due to a service-connected disability. The examiner is asked to elaborate on the likely etiology of the Veteran's seizure in 2015, which he continues to treat with daily medication. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the examiner is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran's statements asserting symptomatology. The examiner must provide a comprehensive rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. Specifically, the examiner must indicate whether there was a further need for information or testing, or whether an opinion could not be rendered due to limitations of knowledge in the medical community at large. 5. Make arrangements to provide the record on appeal to an appropriately qualified clinician for purposes of obtaining a medical opinion as to the nature and etiology of any headache condition the Veteran may have had during the period on appeal. After reviewing the record, the clinician should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any headache condition diagnosed during the period on appeal was related to the Veteran's military service, to include as due to or aggravated by a service-connected disability. In doing so, the examiner should specifically discuss any aggravation of the Veteran's diagnosed tension headache condition by his service-connected sinusitis during the period on appeal. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the examiner is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran's statements asserting symptomatology. (Continued on the next page) The examiner must provide a comprehensive rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. Specifically, the examiner must indicate whether there was a further need for information or testing, or whether an opinion could not be rendered due to limitations of knowledge in the medical community at large. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Richard Kettler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Ferguson, 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.