Citation Nr: 1317229 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 09-27 992A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for kidney disease. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active military service from June 1966 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Newark, New Jersey. A hearing before the undersigned Acting Veterans Law Judge was held at the RO via videoconference in March 2011; a transcript of that hearing has been associated with the claims file. This matter has twice previously been before the Board. In February 2012, the Board granted service connection for a panic disorder with agoraphobia and generalized anxiety disorder, and, in pertinent part, remanded the issues of service connection for diabetes mellitus and a kidney disease for further development. In December 2012, after finding a medical opinion inadequate for rating purposes, the Board again remanded the issues of service connection for diabetes mellitus and a kidney disease. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board must regretfully remand the Veteran's appeal a third time, as prior requests for a medical opinion concerning the etiology of his diabetes mellitus and microalbuminuria have not been adequately addressed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Prior to adjudicating the Veteran's claim, the Board must have an adequate medical opinion addressing the etiology of the claimed disabilities. Most recently, in December 2012, the Board requested that the March 2012 examination report be returned to its author, and that the examiner provide a fully-supported opinion as to whether it is at least as likely as not that the claimed disabilities were caused or aggravated by the Veteran's service-connected panic disorder with agoraphobia and generalized anxiety disorder. The examiner was instructed, in rendering the requested opinion, to "consider and discuss all pertinent medical and lay evidence of record, including the March 2011 statement from the Veteran's nurse indicating that '[e]motional stress may have a negative impact on diabetic control.'" That March 2011 nurse's statement, in full, provided: Emotional stress may have a negative impact on diabetic control as well. An increase in stress hormones leads to an increase in glucose levels, especially when the intake of food and insulin remains unchanged. In addition, during periods of emotional stress, the person with diabetes may alter the usual pattern of meals, exercise, and medication. This contributes to hyperglycemia or even hypoglycemia (eg, in the patient taking insulin or oral antidiabetic agents who stops eating in response to stress). (emphasis in original). In her March 2013 addendum, the examiner merely indicated that (1) the Veteran's diabetes mellitus "is not caused or aggravated by [his] service connected agoraphobia or anxiety disorder," and (2) his microalbuminuria is due to his diabetes, and "is not caused or aggravated by service connected agoraphobia or microalbuminuria" [sic]. In short, the examiner failed to provide a rationale for her opinion of any sort, and failed to consider and discuss any evidence of record, including the highly pertinent nurse's note suggesting a possible aggravation-type relationship between the Veteran's diabetes and emotional stress associated with his psychiatric disorder. Because the March 2013 addendum failed to fully address the questions presented in the Board's most recent remand, the appeal must be remanded again for a second addendum, in which the examiner will provide the requested opinions with a full and complete rationale in support. The examiner, in providing a full opinion, should understand the meaning of the term "aggravation" for VA purposes. Under 38 C.F.R. § 3.310, which governs situations where a service-connected disability causes a nonservice-connected disability to worsen, "aggravation" means "[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease." Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Return the claims file to the examiner who conducted the March 2012 examination and provided the March 2013 addendum opinion. That examiner should review the claims file, this remand, and any relevant records that may be associated with the Veteran's Virtual VA electronic file. She should indicate in the report that she completed such a review. Thereafter, the examiner consistent with sound medical principles, should opine as to the following: (1) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's diabetes mellitus (a) was caused, or (b) is aggravated (i.e., worsened beyond the natural progression) by the Veteran's service-connected panic disorder with agoraphobia and generalized anxiety disorder? (2) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's kidney disease (a) was caused, or (b) is aggravated (i.e., worsened beyond the natural progression) by the Veteran's service-connected panic disorder with agoraphobia and generalized anxiety disorder? (3) If the answer to Question (1) indicates a relationship between the Veteran's service-connected panic disorder with agoraphobia and generalized anxiety disorder, is it at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's kidney disease (a) was caused, or (b) is aggravated, by diabetes mellitus? (4) If aggravation is found present with regard to either claimed disability due to the service-connected panic disorder with agoraphobia and generalized anxiety disorder and/or diabetes mellitus, the examiner should address the following medical issues: (a) the baseline manifestations of the disability/disabilities found present prior to aggravation; and (b) the increased manifestations which, in the examiner's opinion, are proximately due to panic disorder with agoraphobia and generalized anxiety disorder and/or diabetes mellitus. A response to both aspects of the secondary service connection claim (causation and aggravation) must be provided, along with a full rationale for each response. In rendering the requested opinions, the examiner should consider and discuss all pertinent medical and lay evidence of record, including the March 2011 statement from the Veteran's nurse, indicating a possible relationship between the Veteran's service-connected psychiatric disorder and his diabetes mellitus. Due to the nature of the questions presented, specifically the issue of the impact of stress on diabetic maintenance, if the examiner determines that an opinion by a mental health professional is necessary, she should so indicate. If the examiner is unable to reach an opinion on the questions presented without resort to speculation, then she should indicate such and explain why no opinion is possible. If the examiner who provided the March 2013 addendum is no longer available, a similarly-qualified individual should provide the requested opinion. No further examination is necessary unless specifically indicated by a medical professional. 2. The RO/AMC should review the resulting addendum to ensure that they address all issues raised by this remand. If the report is lacking in any way, immediate corrective action should be taken. 3. After performing any additional development indicated, readjudicate the claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ SONJA A. MISHALANIE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).