Citation Nr: 22017799 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 11-10 548 DATE: March 26, 2022 REMANDED Entitlement to service connection for a back disability, to include as secondary to service-connected hypertension, is remanded. Entitlement to service connection for headaches, to include as secondary to service-connected hypertension, is remanded. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected hypertension, is remanded. Entitlement to service connection for prostate cancer, to include as secondary to service-connected hypertension, is remanded. Entitlement to service connection for bilateral foot condition, to include pes planus, plantar fasciitis, hallux valgus, and calcaneal spurs, and to include as secondary to service-connected hypertension, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder, and to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a skin condition, to include as secondary to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from March 1965 to February 1967. The Veteran died in January 2019. The appellant is the Veteran's spouse. In a May 2019 notification letter, the appellant was found to be an appropriate substitute in the Veteran's case. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These claims were previously before the Board in October 2014 and October 2016 when the Board remanded them for further development. Subsequently, the Veteran and the appellant testified at a hearing before the Board held by the undersigned in April 2017. A transcript is of record. Thereafter, the Board remanded the claims in February 2018 and February 2021 for further development. 1. Back Disability 2. Headaches Following the February 2021 Board remand to obtain VA opinions as to the etiology of the Veteran's back and headache conditions, a VA examiner provided negative direct and secondary opinions in March 2021 for each of the conditions listed in this section. However, a review of the March 2021 VA opinions illustrates that for the direct opinions the examiner did not consider the Veteran's statement regarding an in-service personal assault, as requested in the February 2021 Board remand. Additionally, regarding headaches, the VA examiner's secondary service connection opinion stated that service treatment records did not show a diagnosis or treatment for headaches, but did not provide an opinion regarding whether headaches were caused or aggravated by service-connected hypertension. Thus, a remand is required to obtain additional VA opinions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). 3. Bilateral Foot Condition In the February 2021 Board remand, the Board directed the VA examiner "to address the Veteran's diagnosed plantar fasciitis, hallux valgus, and calcaneal spurs individually" when providing an opinion as to whether the Veteran's bilateral foot condition was directly related to his service. A review of the March 2021 VA opinion illustrates that the VA examiner only addressed the Veteran's diagnosed bilateral hallux valgus and did not address any of the other diagnosed bilateral foot conditions. Thus, an additional VA opinion is necessary as the March 2021 VA opinion did not comply with the February 2021 Board directive. See Stegall, 11 Vet. App. at 271. 4. Diabetes Mellitus 5. Prostate Cancer Following the February 2021 Board remand to obtain VA opinions as to the etiology of the Veteran's diabetes mellitus and prostate cancer, a VA examiner provided negative direct and secondary opinions in March 2021. A review of the opinions regarding the direct theory of service connection illustrates that the VA examiner reasoned that her review of the record shows that there is no subjective or objective clinical pattern of diabetes mellitus or prostate cancer during service or within one year of service. These opinions are inadequate as they do not address whether the Veteran's diabetes mellitus and prostate cancer were directly related to his service, irrespective of the lack of a disability pattern in service or within one year of service. As such, a remand is necessary to obtain additional opinions. 6. Skin Condition In the February 2021 Board remand, the Board requested a VA opinion for the Veteran's diagnosed tinea pedis. In March 2021, a VA examiner noted that no opinion was being provided, and in doing so, the examiner noted that there was no diagnosis of tinea pedis at the August 2008 VA examination or at the time of the separation examination. However, April 2017 VA records specifically reflect a diagnosis of tinea pedis. As such, as the disability existed during the period on appeal, a remand is required to obtain an opinion as to the etiology of the Veteran's diagnosed tinea pedis. In addition, because a decision on the remanded issue of entitlement to service connection for prostate cancer could significantly impact a decision on the issue of entitlement to service connection for a skin condition, the issues are inextricably intertwined. Therefore, a remand of the claim for service connection for a skin condition is required. 7. Acquired Psychiatric Disorder Following the February 2021 Board remand to obtain an opinion regarding the etiology of the Veteran's diagnosed depressive disorder, a VA examiner opined in March 2021 that the Veteran's depressive disorder was less likely than not related to his active service, to include the in-service personal assault. The VA examiner opined that the Veteran's depressive disorder was at least as likely as not related to chronic pain related to the Veteran's back. However, as part of the rationale as to why the Veteran's depressive disorder was not related to his service, the examiner reasoned that the Veteran's service treatment records are silent for an acquired psychiatric disorder, and the examiner noted that the Veteran reported no depressive symptoms between 2014 and 2018 and was not prescribed any psychiatric medications during that period. The examiner noted that the Veteran was treated with psychiatric medications for depressive symptoms between 2008 and 2013. Such rationale conflicts with the opinion that the Veteran's depressive disorder was related to chronic back pain as the examiner did not provide a clear rationale as to whether the Veteran's diagnosed depressive disorder during the appeal period was directly related to his service. Thus, an additional VA opinion is needed to adjudicate the claim. Regarding whether the Veteran's depressive disorder was related to his service-connected hypertension, the VA examiner opined that it is less likely than not that the Veteran's depressive disorder was caused or aggravated by his hypertension. In support of the opinion, the VA examiner again cited to how the Veteran's depressive disorder was related to chronic back pain. However, the examiner did not provide any rationale as to why the Veteran's service-connected hypertension had not caused or aggravated his depressive disorder. Thus, an additional VA opinion is necessary. Finally, because a decision on the remanded issue of entitlement to service connection for a back disability could significantly impact a decision on the issue of entitlement to service connection for an acquired psychiatric disorder, the issues are inextricably intertwined. Therefore, a remand of the claim for service connection for an acquired psychiatric disorder is required. The matters are REMANDED for the following action: 1. Obtain a medical opinion from a qualified clinician for the appellant's back, headaches, bilateral foot, diabetes mellitus, prostate cancer, and skin condition claims. The electronic claims file must be made available to the clinician for review in connection with the request for an opinion. After reviewing the claims file, the reviewing clinician should address the following: (a.) Back Disability i) Is it at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's back condition was related to the Veteran's service, to include from an in-service personal assault during basic training or treatment received for a back injury in December 1966? For the purposes of providing this opinion the reviewing clinician should consider the Veteran's statements regarding in-service incidents to be credible. ii) Is it at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's back disability was caused by his service-connected hypertension? iii) Is it at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's back disability was aggravated (that is, any increase in severity beyond the natural progression of the condition) by the Veteran's service-connected hypertension? If the Veteran's back disability was aggravated by his service-connected hypertension, the reviewing clinician should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements in the record as to the nature, severity, and frequency of his observable symptoms over time. (b.) Headaches i) Is it at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's chronic headaches were related to the Veteran's service, to include from an in-service personal assault during basic training? For the purposes of providing this opinion the reviewing clinician should consider the Veteran's statements regarding the in-service incident to be credible. ii) Is it at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's chronic headaches were caused by his service-connected hypertension, to include any medications taken for hypertension? iii) Is it at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's chronic headaches were aggravated (that is, any increase in severity beyond the natural progression of the condition) by the Veteran's service-connected hypertension, to include any medications taken for hypertension? If the Veteran's chronic headaches were aggravated by his service-connected hypertension, the reviewing clinician should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements in the record as to the nature, severity, and frequency of his observable symptoms over time. (c.) Bilateral Foot Condition i) Is it at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's diagnosed plantar fasciitis, hallux valgus, and/or calcaneal spurs were related to the Veteran's service, to include walking and running in wet areas during service and wearing service issued boots that were too small? In addressing this question, the reviewing clinician is asked to address the Veteran's diagnosed plantar fasciitis, hallux valgus, and calcaneal spurs individually. ii) Is it at least as likely as not (approximately a 50 percent or greater probability) that any bilateral foot condition was caused by his service-connected hypertension, to include any medications taken for hypertension causing the Veteran's feet to swell? iii) Is it at least as likely as not (approximately a 50 percent or greater probability) that any bilateral foot condition was aggravated (that is, any increase in severity beyond the natural progression of the condition) by the Veteran's service-connected hypertension, to include any medications taken for hypertension causing the Veteran's feet to swell? If the Veteran's bilateral foot condition was aggravated by his service-connected hypertension, the reviewing clinician should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements in the record as to the nature, severity, and frequency of his observable symptoms over time. (d.) Diabetes Mellitus i) Is it at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's diabetes mellitus was related to the Veteran's service? ii) Is it at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's diabetes mellitus was caused by his service-connected hypertension? iii) Is it at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's diabetes mellitus was aggravated (that is, any increase in severity beyond the natural progression of the condition) by the Veteran's service-connected hypertension? If the Veteran's diabetes mellitus was aggravated by his service-connected hypertension, the reviewing clinician should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements in the record as to the nature, severity, and frequency of his observable symptoms over time. (e.) Prostate Cancer i) Is it at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's prostate cancer was related to the Veteran's service? ii) Is it at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's prostate cancer was caused by his service-connected hypertension? iii) Is it at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's prostate cancer was aggravated (that is, any increase in severity beyond the natural progression of the condition) by the Veteran's service-connected hypertension? If the Veteran's prostate cancer was aggravated by his service-connected hypertension, the reviewing clinician should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements in the record as to the nature, severity, and frequency of his observable symptoms over time. (f.) Skin Condition i) Is it at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's tinea pedis was related to the Veteran's service, to include walking and running in wet areas during service and wearing service issued boots that were too small? ii) If, and only if, it is determined that the Veteran's prostate cancer was at least as likely as not related to service, then is it at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's skin condition was caused by his prostate cancer? iii) If, and only if, it is determined that the Veteran's prostate cancer was at least as likely as not related to service, then is it at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's skin condition was aggravated by (i.e., any increase in the severity beyond its natural progression) his prostate cancer? In answering the questions posed in (a.) through (f.), the reviewing clinician is advised that the Veteran was competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. The examiner must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. Obtain a medical opinion from a qualified clinician for the appellant's acquired psychiatric disorder claim. The electronic claims file must be made available to the clinician for review in connection with the request for an opinion. After reviewing the claims file, the reviewing clinician should address the following: (a.) Is it at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's depressive disorder was related to the Veteran's service, to include from an in-service personal assault? For the purposes of providing this opinion the reviewing clinician should consider the Veteran's statements regarding experiencing an in-service personal assault to be credible. (b.) Is it at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's depressive disorder was caused by his service-connected hypertension? (c.) Is it at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's depressive disorder was aggravated (that is, any increase in severity beyond the natural progression of the condition) by the Veteran's service-connected hypertension? If the Veteran's depressive disorder was aggravated by his service-connected hypertension, the reviewing clinician should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements in the record as to the nature, severity, and frequency of his observable symptoms over time. The reviewing clinician is advised that the Veteran was competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. The examiner must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.