Citation Nr: 1805104 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 09-48 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II. 2. Entitlement to service connection for a low back condition. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. O'Donnell, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1970 to November 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota The Board notes that jurisdiction of the case has been transferred to the VA RO in North Little Rock, Arkansas. In September 2017, the Veteran testified before the undersigned at a video-conference Board hearing. A transcript of the hearing is associated with the claims file. This claim was remanded for further development by the Board in March 2011 and September 2016. That development has been completed and the case has since been returned to the Board for appellate review. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND In May 2014, the Veteran was afforded VA examinations to assess the nature and etiology of his diabetes mellitus, and low back condition. In August 2016, the Board found that the May 2014 VA examination reports were inadequate to decide the claims, and remanded the claims for addendum opinions. Per the August 2016 Board remand, VA addendum opinions with regard to each claim on appeal were obtained in September 2016. With regard to the Veteran's low back condition, the September 2016 VA examiner opined that he was unable to conclude that the Veteran's current back issues were related to events during service, noting that the service medical records and separation examination did not document any back issues. He ultimately concluded that, given the above mentioned facts, it was impossible to establish that the Veteran's low back condition was related to service. With regard to the Veteran's diabetes mellitus, type II, the September 2016 VA examiner reported that he was unable to find evidence of diabetes mellitus during service or within one year after the Veteran's separation from service. He indicated that hypoglycemia or fluctuating blood sugar, which was mentioned in an October 2010 letter from retired nurse D.K., did "not correlate or equate to a diagnosis of d[iabetes ]m[ellitus], which ha[d] to be made by specific criterial FBS [fasting blood sugar] or Hgbalc." Rather, the examiner reported, the Veteran's diagnosis of diabetes mellitus was made in 1998, years after his separation from service. The Board finds that each opinion is inadequate to decide the respective claims. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). With regard to the low back condition opinion, the Board finds that the rationale is inadequate as the examiner cannot rely solely on the absence of treatment or diagnoses in a Veteran's service treatment records as a basis for a negative medical opinion. Regarding the diabetes mellitus opinion, the examiner did not actually opine as to whether or not the Veteran's diagnosed diabetes mellitus, type II, was at least as likely as not related to service. Rather, he indicated only that there was no evidence of such in service or within one year thereafter. Moreover, he did not address whether the Veteran's hypoglycemia or fluctuating flood sugar were related to his diabetes mellitus. Rather, he appeared to opinion only that such evidence was no, in fact, diabetes mellitus. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his diabetes mellitus, type II, and his back. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA treatment records. 2. After completing the foregoing development, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's back condition. The examiner should review all pertinent records associated with the claims file. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's low back condition had its onset during service, manifested within one year after active service, or is otherwise etiologically related to his active service. Specifically, the examiner should address the Veteran's November 1990 and May 2005 back surgeries, the Veteran's statements, and the October 2010 and September 2011 letters from D.K. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's diabetes mellitus, type II. The examiner should review all pertinent records associated with the claims file. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diabetes mellitus, type II, had its onset during service, manifested within one year after active service, or is otherwise etiologically related to his active service. Specifically, the examiner should address the findings of the Veteran's November 1990 urine test, the Veteran's contentions that he was treated for fluctuating sugar levels since his separation from service, the Veteran's contention that he was diagnosed with diabetes in 1998, and the October 2010 and September 2011 letters from D.K. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the Veteran's last known address and to his representative, if applicable. It should also be indicated whether any notice sent was returned as undeliverable. 5. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the case should be readjudicated by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). (CONTINUED ON NEXT PAGE) 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 2014). _________________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).