Citation Nr: 18148359 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 08-03 044 DATE: November 7, 2018 REMANDED The claim of entitlement to service connection for type II diabetes mellitus on any basis other than as due to exposure to herbicides is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Coast Guard from June 1973 to June 1977. He also served as a member of the Coast Guard Reserve and Oregon Army National Guard, to include periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) from December 1982 to December 1983 and from January 1992 to January 2005. This appeal to the Board of Veterans’ Appeals (Board) arose from an August 2004 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, inter alia, denied service connection for type II diabetes mellitus. The Veteran disagreed with that determination, and this appeal ensued. In June 2010, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. In October 2010, the Board, inter alia, remanded the Veteran’s claim for service connection for type II diabetes mellitus for further action, to include additional development of the evidence. After accomplishing further action, the agency of original jurisdiction (AOJ), inter alia, continued to deny this claim (as reflected in a January 2012 supplemental statement of the case (SSOC), and returned the matter to the Board for further appellate consideration. In November 2012, the Board, inter alia, denied service connection for type II diabetes mellitus as due to exposure to herbicides and remanded the matter of service connection for type II diabetes mellitus on any basis other than as due to exposure to herbicides for further action, to include additional development of the evidence. After accomplishing further action, the AOJ, inter alia, denied the claim for service connection for type II diabetes mellitus on any basis other than as due to exposure to herbicides (as reflected in a May 2013 SSOC), and returned the matter to the Board. In October 2013, August 2014, and April 2015, the Board, inter alia, again remanded the claim for service connection for type II diabetes mellitus on any basis other than as due to exposure to herbicides. Following each remand, after taking further action, the AOJ, inter alia, continued to deny this claim (as reflected in a February 2014, a December 2014, and a September 2016 SSOC, respectively, and returned the matter to the Board. In January 2017, the Board again remanded the remaining claim on appeal for further action; however, the AOJ returned the claim to the Board without taking any further action necessitating yet another remand in July 2017 remand. Thereafter, and after accomplishing further action, the AOJ continued to deny the claim, and returned the matter to the Board). [Parenthetically, the Board notes that this appeal originally included claims for service connection for hearing loss, tinnitus, right knee patellofemoral syndrome, left knee patellofemoral syndrome, chronic cervical spine strain, and for a compensable rating for chemical injury residuals of the eyes. However, the Board denied service connection for hearing loss, tinnitus, right knee patellofemoral syndrome, left knee patellofemoral syndrome, and chronic cervical spine strain in October 2010, and granted an initial 20 percent rating for chemical injury residuals of the eyes in April 2015. Accordingly, those matters have been resolved]. Unfortunately, the Board finds that further action on the remaining claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the most recent, July 2017 remand, the Board instructed the AOJ to obtain an addendum opinion addressing the following: whether it is at least as likely as not that the Veteran’s diabetes was caused or aggravated by service-related stress; whether it is at least as likely as not that the Veteran’s diabetes was caused or aggravated by the diet he was served during periods of ACDUTRA; and whether it is at least as likely as not that the Veteran’s diabetes was caused or aggravated by his limited ability to exercise due, in part, to service-connected low back pain. In addition, regarding service-related stress, the Board further directed that the requested opinion include comment on the medical proposition, cited in the October 2014 VA examination report, that “there is strong evidence that psychological stress is related to deterioration in [glycemic] control in established diabetes,” as well as on specific entries in the medical evidence of record. These entries included records dated in November 1998 (PeaceHealth Medical Group Clinic Note), to the effect that a source of stress for the Veteran at that time was the fact that he was training very hard and working long days in the reserves, as part of learning to be a medic; in August 2003 (PeaceHealth Medical Group Letter), wherein a private care provider noted that the Veteran’s diabetes seemed fairly volatile and responded rapidly to food intake styles and exercise styles, and the provider suggested that the military minimize the Veteran’s body and food stress; and in July 2004, when, during a VA examination, the Veteran reported that exercise, such as he was required to do in the National Guard, caused him to develop hypoglycemic events. A review of the claims file reveals that an addendum opinion was obtained in May 2018. The providing physician opined that the “Veteran’s excessive eating causing weight gain less likely than not secondary (less than 50% probability) could control his overeating problem and excessive calories.” The physician also opined that he could not identify evidence that the Veteran’s physical activity in military increased his diabetic problem and his weight (less than 50% probability), and further stated that, “[o]n the contrary, additional physical demands by the military would more likely than not have helped him to burn some of his excessive weight and also help to better control his diabetes.” The physician also opined that the Veteran’s back condition less likely than not (less than 50% probability) caused problems with his diabetic control. The physician also opined that an undefined “stress” in the military was less likely than not (less than 50% probability) a significant factor in the onset of his diabetes and blood sugar levels, as well as in aggravation of his diabetes and blood sugar levels. However, while the physician provided an unclear statement as to the Veteran’s excessive eating, the physician did not explicitly opine as to whether it was at least as likely as not that the Veteran’s diabetes was caused or aggravated by the diet he was served during periods of ACDUTRA, as instructed by the Board. In addition, while the physician provided comment about the Veteran’s physical activity in the military and his diabetic problem, and opined that the Veteran’s back pain less likely than not caused problems with his diabetic control, the physician did not explicitly opine as to whether it was at least as likely as not that the Veteran’s diabetes was caused or aggravated by his limited ability to exercise due, in part, to service-connected low back pain, as instructed by the Board. Moreover, while the physician opined that undefined “stress” in the military was less likely than not a significant factor in the onset of the Veteran’s diabetes and blood sugar levels, as well as in aggravation of his diabetes and blood sugar levels, the physician did not provide comment on the medical proposition cited in the October 2014 VA examination report and the specific entries in the medical evidence of record, as described above and instructed by the Board. The physician only listed the November 1998 and August 2003 entries at the end of his opinion, and even still, included no comment. As the AOJ failed to fully or substantially comply with the Board’s remand directives with respect to this claim, another remand of this matter is required. See Stegall, supra; see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance, is required). Accordingly, on remand, the AOJ should arrange to obtain an addendum medical opinion from the physician who provided the May 2018 VA addendum opinion, or from another appropriate physician based on claims file review (if possible). The AOJ should only arrange for further examination of the Veteran if such is deemed necessary in the judgment of the individual designated to provide the addendum opinion. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the VA Medical Center (VAMC) in Roseburg, Oregon, and that records from that facility dated through April 2018 are associated with the file; however, more recent records may exist. Therefore, the AOJ should obtain from the Roseburg VAMC all pertinent, outstanding records of evaluation and/or treatment of the Veteran since April 2018, following the current procedures prescribed in 38 C.F.R. § 3.159(c) regarding requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claim on appeal, explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claim on appeal. This matter is hereby REMANDED for the following action: 1. Obtain from the Roseburg VAMC all outstanding records of evaluation and/or treatment of the Veteran, dated since April 2018. Follow the procedures of 38 C.F.R. § 3.159 regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the remaining claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain from the physician who provided the May 2018 VA opinion an addendum opinion addressing the etiology of the Veteran’s type II diabetes mellitus. If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the claims file, and arrange to obtain, from an appropriate physician, a medical opinion based on claims file review (if possible). Only arrange for the Veteran to undergo further VA examination, by an appropriate physician, if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the addendum opinion/examination report should reflect consideration of the Veteran’s documented medical history and lay assertions. Service-Related Stress—The physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s type II diabetes mellitus was caused OR aggravated (worsened beyond natural progression) by service-related stress. In so doing, the physician should comment on the significance, if any, of the medical proposition, cited in the October 2014 examination report, to the effect “there is strong evidence that psychological stress is related to deterioration in [glycemic] control in established diabetes,” and should discuss the likelihood that stress the Veteran experienced during periods of ACDUTRA (generally, two-week periods of annual training) subsequent to the onset of diabetes, aggravated his diabetes. The physician should also comment on the significance, if any, of entries in medical records dated in November 1998 (PeaceHealth Medical Group Clinic Note), to the effect that a source of stress for the Veteran at that time was the fact that he was training very hard and working long days in the reserves, as part of learning to be a medic; in August 2003 (PeaceHealth Medical Group Letter), wherein a private care provider noted that the Veteran’s diabetes seemed fairly volatile and responded rapidly to food intake styles and exercise styles, and the provider suggested that the military minimize the Veteran’s body and food stress; and in July 2004, when, during a VA examination, the Veteran reported that exercise, such as he was required to do in the National Guard, caused him to develop hypoglycemic events. Diet Served During Reserve Service—The physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not that the Veteran’s type II diabetes mellitus was caused OR aggravated by the diet he was served during periods of ACDUTRA. In so doing, the physician should comment on the significance, if any, of the evidence of record indicating that the Veteran had difficulty controlling his blood sugar during periods of reserve training—to include entries in medical records dated in January 1999 (PeaceHealth Medical Group Clinic Note), to the effect that the Veteran reported very high blood sugar levels during periods when he was training in the reserves, because he had to eat the food that was put before him; and in August 2003 (PeaceHealth Medical Group Letter), wherein a private care provider noted that the Veteran’s diabetes seemed fairly volatile and responded rapidly to food intake styles and exercise styles. Inability to Exercise Due to Service-Connected Low Back Pain—The physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not that the Veteran’s type II diabetes mellitus was caused OR aggravated by his limited ability to exercise due, in part, to service-connected low back pain. In so doing, the physician should comment on the significance, if any, of entries in medical records dated in October 2002 (Dr. F.F.M. Letter), to the effect the Veteran’s physical condition, including low back pain, limited the type of sit-ups he could do; in August 2003 (PeaceHealth Medical Group Letter), to the effect that the Veteran’s exercise was sharply limited due to chronic back pain and spasm, and that his diabetes seemed fairly volatile and responded rapidly to food intake styles and exercise styles; in December 2003 (Permanent Profile Request Memorandum), to the effect that the Veteran was unable to perform the standard Army physical fitness test due, in part, to low back pain; in September 2004 (Physical Profile – DA Form 3349), showing that the Veteran was placed on a permanent physical profile for diabetes, and for difficulties with his back and neck; in October 2009 (Letter from W.S.), wherein the employee wellness coordinator at the Veteran’s job indicated that the Veteran was unable to work out at the levels he would like due to problems with his low back and knees; and in February 2011 (VAMC Progress Note), to the effect that the Veteran usually had a very strict exercise regimen, but that he had not been able to exercise for the past month due to knee and back pain. In addressing all the above, the examiner is advised that the Veteran is competent to report his symptoms and history, and that his reports in this regard must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5.To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, supra. 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claim on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel