Citation Nr: 21040293 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-46 937 DATE: July 3, 2021 REMANDED Entitlement to service connection for folliculitis is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for Type II diabetes mellitus is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1983 to January 1984. This appeal comes before the Board of Veterans' Appeals (Board) from June 2015 and November 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter comes before the Board on remand from United States Court of Appeals for Veterans' Claims (Court), from a March 2021 joint motion for remand (JMR). Pursuant to the JMR, the Court remanded the Veteran's claims for further consideration by the Board. The parties agreed that remand was necessary for the Board to address whether the Board's March 2019 remand instructions were substantially complied with, during a series of VA examinations performed in May 2019. 1. Entitlement to service connection for folliculitis is remanded. The Veteran argues that his use of inhaled steroids for his service-connected asthma is the cause of his folliculitis. The Board's March 2019 remand directed that a VA examiner should consider and address a private dermatologist's opinion in June 2016 that the Veteran's folliculitis was either caused or aggravated by inhaled steroid use for service-connected asthma. The Board additionally directed that the examiner should consider and address the article "Steroid acne vs. Pityrosporum folliculitis: the incidence of Pityrosporum ovale and the effect of antifungal drugs in steroid use." A review of the evidence of record indicates the May 2019 examiner did not address either the private opinion, nor the article provided by the Veteran. The examiner's opinion only addressed whether folliculitis was caused by asthma, and it did not in any way address the Veteran's use of a steroid inhaler. The Board thus finds that its remand instructions were not substantially complied with and a remand is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for hypertension is remanded. The Veteran argues that his use of inhaled steroids for his service-connected asthma is the cause of his hypertension, including that the use of inhaled steroids and other steroid treatment for asthma led to weight gain and obesity, which in turn led to other present medical issues. VA's general counsel has issued a precedential opinion on how the issue of obesity is to be assessed. One of the primary holdings of the opinion is that obesity is not a disability for purposes of VA benefits; hence, it cannot be the subject of service connection. VAOPGCPREC No. 1-2017 (Jan. 6, 2017); see also Marcelino v. Shulkin, 29 Vet. App. 155 (2018). The general counsel recognized further, however, that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). To determine whether obesity is an intermediate step between a service-connected disability and the development of a current disability that may be service connected on a secondary basis, the following criteria must all be satisfied: (1) the service-connected disability must have caused the Veteran to become obese; (2) the obesity, as a result of the service-connected disability must have been a substantial factor in causing the potential secondary disability; and (3) the potential secondary disability would not have occurred but for the obesity caused by the service-connected disability. The Board's March 2019 remand directed that a VA examiner provide an opinion regarding direct service connection, including whether the Veteran's condition manifested within one year of his discharge; that the examiner consider and address documented high blood pressure within one year of the Veteran's discharge; secondary service connection due to the Veteran's service-connected asthma and steroid use for asthma management; and that the examiner consider secondary service connection based on weight gain due to use of steroids as an intermediary step. The Board directed that the examiner should address a March 2015 private opinion linking hypertension to obesity, and an article provided by the Veteran entitled "Diabetes and Hypertension: Is There a Common Metabolic Pathway?" A review of the evidence indicates that the May 2019 examiner concluded the Veteran's hypertension was due to weight gain. In that respect, the opinion gave due consideration to the private medical opinion and the article provided by the Veteran. However, the examiner's opinion that weight gain was not due to asthma is inadequate, as it is based solely on an absence of medical evidence of treatment for weight gain due to asthma. Additionally, the examiner's opinions do not address whether weight gain or hypertension is due to steroid / inhaler use, as directed in the remand. Finally, although the examiner did address whether the Veteran's hypertension was incurred during service, the examiner did not address documented high blood pressure within one year of the Veteran's discharge. See March 1987 Medical Treatment Record Non-Government Facility (documenting numerous incidences of high blood pressure from 1985 to 1987). As described above, the Board thus finds that its remand instructions were not substantially complied with. Further remand is necessary. Stegall, 11 Vet. App. at 271. 3. Entitlement to service connection for OSA is remanded. The Veteran argues that his OSA is the result of his service-connected asthma, including the medications he takes for asthma, or due to weight gain caused by asthma. The Board's March 2019 remand directed that a VA examiner provide opinions regarding direct service connection for OSA; OSA secondarily caused or aggravated by asthma; and whether the Veteran's OSA has been secondarily caused or aggravated by obesity due to asthma or steroid use to treat asthma. The May 2019 VA examiner wrote that it was at least as likely as not that the Veteran's OSA was aggravated beyond its natural progression by obesity and weight gain. However, as observed previously, the May 2019 VA examiner's opinion regarding whether the Veteran's weight gain was due to his asthma is inadequate, as it is based solely on an absence of medical evidence of treatment for weight gain due to asthma. The examiner's opinions regarding OSA do not substantially comply with the Board's remand instructions in March 2019, the opinions do not address the effects of the Veteran's asthma inhaler on his weight gain or on his OSA so a remand is necessary. Stegall, 11 Vet. App. at 271. 4. Entitlement to service connection for Type II diabetes mellitus is remanded. The Veteran argues that his Type II diabetes mellitus is the result of his service-connected asthma, including the medications he takes for asthma, or due to weight gain caused by asthma. In its March 2019 decision, the Board directed that a VA examiner should provide opinions for whether diabetes was secondary to service-connected asthma; and for diabetes as secondarily caused by weight gain due to service-connected asthma. The Board directed that the examiner address the March 2015 private opinion linking diabetes to obesity caused by asthma, and an article provided by the Veteran entitled "Diabetes and Hypertension: Is There a Common Metabolic Pathway?". As stated previously, the examiner's opinion discussing whether the Veteran's weight gain was proximately due to his service-connected asthma is inadequate, as it is based solely on an absence of evidence of treatment for weight gain due to asthma. The examiner's opinions regarding diabetes do not substantially comply with the Board's remand instructions in March 2019, as the opinions do not address the effects of the Veteran's asthma inhaler on his weight gain or on his diabetes. Stegall, 11 Vet. App. at 271. Further remand is necessary. These matters are REMANDED for the following action: Arrange for an addendum opinion to be prepared for the Veteran's claims. If possible, use the same examiner who prepared the May 2019 addendum opinions. If the 2019 examiner is not available, then use an appropriately qualified VA clinician. The clinician should indicate review of the Veteran's claim file. Please address the following: (a.) Is it at least as likely as not (about 50 percent probability) that the Veteran's weight gain and obesity were caused by his service-connected asthma, or the use of a steroid inhaler and other steroid treatment for his asthma? The examiner's opinion MUST address whether the Veteran's prescribed use of steroids to treat his asthma caused obesity. The examiner MUST also address the March 2015 private opinion linking hypertension to obesity, and the articles provided by the Veteran entitled "Diabetes and Hypertension: Is There a Common Metabolic Pathway?" and "Inhaled Corticosteroids and the Risks of Diabetes Onset and Progression" (documents contained within November 2017 Correspondence). It is insufficient for the examiner merely to indicate that there is no prior record of treatment for asthma-related weight gain, as the absence of evidence alone cannot be taken as substantive negative evidence without a proper foundation to demonstrate that such silence has a tendency to prove or disprove a relevant fact. (b.) If, and only if, the answer to question (a) above is yes, address for each of the following conditions whether (1) obesity was a substantial factor in causing the potential following secondary disabilities; and (2) whether the potential secondary disabilities would not have occurred but for the obesity caused by the service-connected disability (please individually each disability listed in i-ii): i. Hypertension ii. Obstructive sleep apnea ii. Type II diabetes mellitus (c.) Regarding the Veteran's hypertension, is it at least as likely as not (about 50 percent probability) that the condition manifest within one year of the Veteran's discharge in January 1984 and has continued since that time? In answering this question, the examiner should address numerous instances of high blood pressure from 1985 to 1987 shown in the March 1987 Medical Treatment Record Non-Government Facility. (d.) Regarding the Veteran's Type II diabetes mellitus, is it at least as likely as not (probability of about 50 percent) that the Veteran's diabetes has been caused or aggravated by the Veteran's use of inhaled steroids to treat his asthma? In answering the above question, the examiner should address the private medical opinion from March 2015, as well as articles provided by the Veteran including "Diabetes and Hypertension: Is There a Common Metabolic Pathway?" and "Inhaled Corticosteroids and the Risks of Diabetes Onset and Progression" (documents contained within November 2017 Correspondence) and "Steroid Induced Diabetes," "Quantification of the risk of corticosteroid-induced diabetes mellitus among the elderly," and "Effect of high dose inhaled beclomethasone dipropionate on carbohydrate and lipid metabolism in normal subjects" (documents contained within August 2015 Correspondence). (e.) Regarding the Veteran's folliculitis, is it at least as likely as not (probability of about 50 percent) that the Veteran's skin condition has been caused or aggravated by the use of inhaled steroids or other steroids to treat his asthma? In answering the above question, the examiner should address the articles provided by the Veteran including: "Steroid Acne vs. Pityrosporum folliculitis" (document contained within November 2016 Correspondence) "Drug-Induced Acneform Eruptions: Definitions and Causes" and "Acneiform Dermatoses" (documents contained within January 2017 NOD). The examiner must provide a complete rationale for his or her opinions in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. If the clinician determines and in-person examination(s) is needed to answer any of the above questions, then arrangements should be made for such examination(s). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hermsdorfer, 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.