Citation Nr: 18146646 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-33 777 DATE: October 31, 2018 REMANDED Entitlement to service connection for diabetes mellitus, type II, to include as secondary from a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1995 to October 1999, and from October 2003 to April 2004. This appeal arises before the Board of Veterans’ Appeals (Board) from a March 2014 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran’s representative offered an alternative theory of service connection, claiming that the Veteran’s diabetes mellitus was due to exposure to contaminants in the water supply at one of his duty stations, Camp Lejeune, North Carolina. The Veteran’s service records do indicate the Veteran was stationed there during his first period of active service. However, pursuant to 38 C.F.R. § 3.307(a)(7), the applicable time period for consideration is August 1, 1953 to December 31, 1987, and the Board notes the Veteran first entered on to active duty on October 2, 1995 from his home of record of Montgomery, Alabama, and thus the Veteran was not present at Camp Lejeune during the applicable period. As such, the Board will not consider that theory of service connection. Entitlement to service connection for diabetes mellitus, type II, to include as secondary from service-connected disability, is remanded. The Veteran is seeking entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected disability. The Veteran received a VA examination in February 2014, which noted a formal diagnosis of diabetes mellitus, type II, which was being treated with oral hypoglycemic agents and dietary modifications. No remarks as to possible etiology or opinion for service connection were provided by this examiner. VA provided an addendum opinion in March 2014 from a different examiner, providing a negative nexus opinion for secondary service connection for the diabetes as due to service-connected knee or back disabilities. However, the Board considers that addendum opinion inadequate for several reasons, and must therefore remand for another addendum opinion regarding both direct and secondary service connection for the Veteran’s claimed diabetes disability. First, no formal opinion for direct service connection was provided. Second, the addendum opinion focused only on two particular existing service-connected disabilities, the knees and lumbar back, and discussed the connection only in the view of the orthopedic disabilities limiting the Veteran’s ability to exercise. VA is obligated to develop and consider all theories of entitlement that are raised by the record or by the claimant. See Robinson v. Mansfield, 21 Vet. App. 545 (2008). VA must examine the record with a view towards ascertaining whether the claimant or the evidence raises consideration of any theory of entitlement, regardless of specific disability claims. Secondary service connection means service connection not for a disability that was incurred in or aggravated by active service, but rather for one that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310. In Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), the Court held that secondary service connection includes compensation for aggravation of a Veteran’s non-service-connected condition that is proximately due to or the result of a service-connected condition. Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service connection condition. An opinion that something “is not related to” or “is not due to” does not answer the question of aggravation. Allen, 7 Vet. App. at 448; 38 C.F.R. § 3.310(b); see also El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Here, the Board notes that the Veteran was diagnosed with diabetes mellitus type II formally by VA in February 2013, and that VA medical providers had previously in October 2012 noted several laboratory results that they indicated were likely signs of diabetes mellitus type II. The Veteran has a complex medical profile and history, to include the service connected disability of major depressive disorder with social phobia and insomnia associated with migraine headaches, with an evaluation of 50 percent since January 19, 2007. The Veteran received regular, continuing care from VA for this psychiatric disability. In June 2011 and February 2013, the Veteran met with his VA psychiatrist, Dr. J.B., who was discussing new antipsychotic medications for the Veteran to reduce the incidence and effects of tardive dyskinesia, a side effect of the medications the Veteran took for his service-connected psychiatric disorder. Dr. J.B. specifically pointed out to the Veteran that different anti-psychotic medications had risks that include “ . . . weight gain, elevations in blood sugar and blood pressure, and an increase in cholesterol and lipids. In addition, [Dr. J.B. and the Veteran] discussed that some patients even develop diabetes. . . . [The Veteran] indicated an understanding of these risks and benefits and chose to proceed with the use of this medication.” (Emphasis added.) The Board may only consider independent medical evidence to support its findings and may not provide its own medical judgment in the guise of a Board opinion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1990). As such, the Board finds it necessary to remand for an addendum opinion that discusses direct service connection and secondary service connection for his diagnosed diabetes, to include as due to any service-connected disability, to include the effects and possible aggravation by any medications used to treat the Veteran’s service-connected disabilities. The matter is REMANDED for the following action: 1. Obtain any pertinent outstanding VA treatment records and associate them with claims file. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. 2. After the above record search is complete and any new records are added to the claims file, obtain an addendum opinion from an appropriate and qualified medical professional for a supplemental medical opinion to address the nature and etiology of the veteran’s diabetes mellitus type II, to include the effects of all medications, especially psychiatric medications, that may have an effect of the Veteran’s diabetes and related symptoms. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. The Veteran need not be scheduled for another VA medical examination unless deemed to be necessary by the examiner to provide the requested medical opinion. Based on the review of the Veteran’s entire record, the examiner should provide an opinion as to the following: a) Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran’s diabetes disability is related to his active duty service, or are otherwise related to any in-service disease, event, or injury? b) If not, is it at least as likely as not (probability of fifty percent or greater) that the diabetes disability was caused by the Veteran’s service-connected psychiatric disability and/or the medications used to treat it, or any other service-connected disability? c) If service-connected disability did not cause the diabetes disability, is it at least as likely as not (probability of fifty percent or greater) that diabetes disability was aggravated (an increase in severity) by the psychiatric disability or any other service-connected disability, to include medications? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the diabetes disability by the service connected disability. Attention is invited to the June 2011, February 2013, and subsequent remarks by VA physician Dr. J.B. about the effects of the Veteran’s anti-psychotic medications and their possible effect on the Veteran’s elevated blood sugar and diabetes. In formulating the opinion, the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against. Any opinions offered should be accompanied by the underlying reasons for the conclusions. If the examiner is unable to offer any of the requested opinions, a rationale should be provided for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. A detailed rationale supporting the examiner’s opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. 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). This claim 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. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel