Citation Nr: 22018933 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 18-10 535 DATE: March 30, 2022 REMANDED Entitlement to service connection for a recurrent skin disability is remanded. Entitlement to service connection for a lumbosacral spine disability, to include degenerative disc disease, is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right wrist disability is remanded. Entitlement to service connection for a recurrent sleep disability, to include obstructive sleep apnea, is remanded. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a lumbosacral spine disability is remanded. Eligibility for specially adapted housing is remanded. Entitlement to a special home adaptation grant is remanded. Entitlement to financial assistance for the purchase of an automobile or other conveyance and adaptive equipment or adaptive equipment only is remanded. REASONS FOR REMAND The Veteran had active service from June 1967 through June 1969. He served in the Republic of Vietnam In July 2019, the Board of Veterans' Appeals (Board) denied service connection for gastroesophageal reflux disease, a right shoulder disability, a left shoulder disability, and a right wrist disability. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In April 2021, the Court affirmed that portion of the July 2019 Board decision which denied service connection for gastroesophageal reflux disease; vacated those portions of the Board decision which denied service connection for a right shoulder disability, a left shoulder disability, and a right wrist disability; and remanded those issues to the Board for action consistent with its decision. 1. Entitlement to service connection for a recurrent skin disability is remanded. The service treatment records reflect that he was treated for left foot calluses and an infected toe related to his boots. The report of a January 1970 Department of Veterans Affairs (VA) examination states that the Veteran exhibited "some residual acne over the upper arms, back; some pigmentation; nothing severe." The examiner did not diagnose a skin disability. The report of a February 1999 VA psychiatric examination states that the Veteran exhibited "some dark pigmented areas on the right shoulder and on the dorsum of both feet, but no obvious rash other than the left ankle." The report of a July 2020 skin examination conducted for VA states that the Veteran reported that, "about a year after separation, he developed a rash on his shoulders, arms, legs and feet" and experienced "this rash outbreak intermittently" thereafter. The Veteran was diagnosed with tinea pedis. The examiner concluded that "the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The nurse practitioner commented that "Veteran does have diagnosis of skin condition on bilateral feet on day of exam, claims file is silent for treatment current or chronic;" "there is no evidence of chronicity of care;" and "a nexus has not been established." He did not note or otherwise address the in service calluses and toe infections and the post service skin symptoms. Therefore, the Board finds that the examination report is of limited probative value. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further VA skin evaluation is needed. Clinical documentation dated after May 2021 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to service connection for a lumbosacral spine disability, to include degenerative disc disease, is remanded. VA clinical documentation states that the Veteran has been diagnosed with lumbosacral spine intervertebral disc syndrome, lumbar radiculopathy, lumbar spine spondylosis, and lumbar spine Schmorl's nodes. An April 2020 evaluation conducted for VA states that "the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service connected conditions" and was not "as likely as not aggravated beyond its natural progression by service connected conditions." The examiner commented that "the claimed disorder is a separate entity entirely from the service connected condition and unrelated to it" and "the current low back condition by last 10/2018 treatment note has no anatomic or physiologic link to" the service connected disabilities. The examiner did not specifically identify the Veteran's diagnosed lumbosacral spine disabilities and did not provide a specific rational for his conclusions or address the Veteran's contentions. In light of such deficiencies, the Board finds that the examination report is of essentially no probative value and further VA spine evaluation is needed. 3. Entitlement to service connection for a right shoulder disability and a left shoulder disability is remanded. In light of the Court's direction, the Board finds that further VA shoulder examination is needed determine the relationship between the claimed disabilities and the right ankle disability and the other service connected disabilities. 4. Entitlement to service connection for a right wrist disability is remanded. In its April 2021 decision, the Court noted that the December 2017 VA examination was inadequate in that it did not clearly address whether the claimed right wrist disability is related to the left wrist disability. Therefore, the Board finds that further VA wrist evaluation is needed. 5. Entitlement to service connection for a recurrent sleep disability, to include obstructive sleep apnea, is remanded. VA clinical documentation dated in November 2018 states that the Veteran was diagnosed with obstructive sleep apnea with hypersomnia and provided a CPAP machine. An April 2020 evaluation conducted for VA states that the diagnosed obstructive sleep apnea was not "as likely as not aggravated beyond its natural progression by service connected conditions." The examiner commented that "there is in uptodate no perm aggravation shown by his 15 SC conditions from or to OSA. The physician did not provide a specific rationale for his opinion. In light of the cited deficiencies, the Board finds that further VA evaluation is needed. 6. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a lumbosacral spine disability is remanded. The Veteran contends that VA medical doctors misdiagnosed his lumbosacral spine disability and treated him with low back injections in three sessions in 2013. In its July 2019 Remand instructions, the Board requested that the Veteran be provided a further VA evaluation. The Board directed that the examiner "must specifically address whether the Veteran has additional low back disability that is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, to include as during 2013 low back injections" and "it is most essential the examiner provide explanatory rationale for the opinion, with specific reference to the evidence of record where appropriate, including VA treatment records. An April 2020 evaluation conducted for VA states that the examiner concluded that "the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The physician commented that "the VA care during his working as a laborer 1999 and up to the present show monitoring and noted injury and surgeries due to multiple issues, lawn mower accidents etc. and it is not caused by or became worse as a result of the VA treatment, additional disability from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel or additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, and/or failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress;" "2003 ESI are noted with difficulty due to anatomic variations, post service work and prior surgeries;" and "it is a complex case with anatomic variations that could not otherwise be 100% pain or residual discomfort related." The examiner did not address whether there was "additional low back disability that is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, to include as during 2013 low back injections." Therefore, further VA examination is needed. 7. The issues of eligibility for specially adapted housing and entitlement to a special home adaptation grant and financial assistance for the purchase of an automobile or other conveyance and adaptive equipment or adaptive equipment only is remanded. The issues of eligibility for specially adapted housing and entitlement to a special home adaptation grant and financial assistance for the purchase of an automobile or other conveyance and adaptive equipment or adaptive equipment only are inextricably intertwined with the issues being remanded and must also be remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated him for any skin, lumbosacral spine, shoulder, right wrist, and sleep disabilities. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain all VA clinical documentation and relevant consent forms, including those associated with treatment of the Veteran after May 2021. 3. Schedule the Veteran for a VA skin examination conducted by a physician to assist in determining the nature of all identified recurrent skin disabilities and any relationship to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all skin disabilities found. If no skin disability is identified, the examiner should specifically state that fact and should reconcile that finding with the evidence of record. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified recurrent skin disability had its onset during active service or is related to any incident of service, including the documented in service left foot callouses and toe infection and the Veteran's service in the Republic of Vietnam. 4. Schedule the Veteran for a VA spine examination conducted by a physician to assist in determining the nature of all identified recurrent lumbosacral spine disabilities and any relationship to active service and/or VA treatment. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all lumbosacral spine disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified lumbosacral spine disability had its onset during active service or is related to any incident of service, including the Veteran's service in the Republic of Vietnam. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any lumbosacral spine disability is due to or the result of the service connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any lumbosacral spine disability has been aggravated (increased in severity beyond the natural progression of the disorder) by the service connected disabilities. (e) Opine whether the Veteran suffer additional lumbosacral spine disability due to VA treatment including 2013 low back injections. (f) If additional lumbosacral spine disability due to VA treatment is identified, opine whether such disability was the proximate due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination and whether the treating VA medical personnel exercised the degree of care that would be expected of a reasonable health care provider. (g) Opine whether any additional lumbosacral spine disability was due to an event that was not reasonably foreseeable. 5. Schedule the Veteran for a VA shoulder examination conducted by a medical doctor to assist in determining the nature of any identified shoulder disability and any relationship to active service and the service connected disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Identify all shoulder disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified shoulder disability had its onset during active service or is related to any incident of service, including the Veteran's service in the Republic of Vietnam. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any recurrent shoulder disability is due to or the result of the service connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any recurrent shoulder disability has been aggravated (increased in severity beyond the natural progression of the disorder) by the service connected disabilities. 6. Schedule the Veteran for a VA wrist examination conducted by a medical doctor to assist in determining the nature of any identified right wrist disability and any relationship to active service and the service connected disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Identify all right wrist disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified right wrist disability had its onset during active service or is related to any incident of service, including the Veteran's service in the Republic of Vietnam. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified right wrist disability is due to or the result of the left wrist ganglionectomy residuals and the other service connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that any identified right wrist has been aggravated (increased in severity beyond the natural progression of the disorder) by the left wrist ganglionectomy residuals and the other service connected disabilities. 7. Schedule the Veteran for a VA sleep examination conducted by a medical doctor to assist in determining the nature of diagnosed obstructive sleep apnea and any relationship to active service and the service connected disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Identify all recurrent sleep disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that diagnosed obstructive sleep apnea had its onset during active service or is related to any incident of service, including the Veteran's service in the Republic of Vietnam. (Continued on the next page) (c) Opine whether it is at least as likely as not (50 percent probability or greater) that the diagnosed obstructive sleep apnea is due to or the result of posttraumatic stress disorder (PTSD) and the other service connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that diagnosed obstructive sleep has been aggravated (increased in severity beyond the natural progression of the disorder) by PTSD and the other service connected disabilities. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. C. KING 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.