Citation Nr: 18152640 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-46 237 DATE: November 23, 2018 REMANDED Entitlement to service connection for diabetes mellitus II is remanded. Entitlement to an initial rating in excess of 20 percent disabling for right bicep tendon tear with tendinosis and AC joint arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1995 to June 1999. This matter is before the Board of Veterans’ Appeals (Board) on appeal from December 2012 (increased rating - right shoulder) and December 2014 (service connection - diabetes) rating decisions by a Department of Veterans Affairs Regional Office (RO). 1. Service Connection - Diabetes The Veteran asserts entitlement to service connection for diabetes mellitus II. Specifically, the Veteran asserts that his diabetes is etiologically related to anthrax vaccines he received during service, or, alternatively, due to weight control programs he underwent during service. The Veteran underwent a VA examination in October 2016. The examiner opined that the Veteran’s diagnosed diabetes was “less likely than not (less than 50% probability)” etiologically related to service. In support of this opinion, the examiner noted that the Veteran was not diagnosed with diabetes until many years following separation from service. The examiner also opined that the Veteran’s diabetes was “less likely as not (less than 50% probability)” etiologically related to his in-service weight-control programs and/or weight standards. In this regard, the examiner noted medical literature that found maintaining a healthy weight through good nutrition and exercise would help prevent diabetes, and that healthy lifestyle changes could prevent or delay the development of type 2 diabetes. In addition, the examiner opined that the Veteran’s diabetes was “less likely than not (less than 50% probability)” etiologically related to his in-service anthrax vaccinations. In this regard, the examiner noted speculation concerning a possible connection between the development of diabetes in association with anthrax vaccinations, but that medical literature did not support such speculation. Specifically, the examiner cited a study which did not find an increased risk of developing type 1 diabetes with use of vaccines in military personnel. In an August 2017 letter, the representative asserted that the October 2016 VA examination was inadequate. The representative noted that while the examiner recognized speculation concerning a possible connection between anthrax vaccinations and the development of diabetes, the examiner dismissed such association on the basis of medication literature concerning vaccines and type 1 diabetes. In this regard, the representative noted the Veteran has type 2 diabetes. The representative further noted that the examiner did not explain why the study concerning type 1 diabetes had a bearing on type 2 diabetes. Absent such explanation, the representative asserted that the examiner’s supporting rationale was inadequate. After a review of the October 2016 VA examination report, the Board finds it is unclear what source the examiner relied upon in noting speculation regarding a possible etiological association between anthrax vaccinations and diabetes. It appears the examiner might have been referring to speculation derived from the cited medical literature. In any event, the cited medical literature only notes studies involving type 1 diabetes and the examiner did not explain why or how the study was relevant to type 2 diabetes. Accordingly, the Board finds the October 2016 VA examination incomplete and an addendum opinion is necessary to properly adjudicate this issue on appeal. 2. Increased Rating – Right Shoulder The Veteran underwent a VA examination in August 2016. The Veteran reported weakness with activity, and difficulty lifting objects after repetitive use. He also reported flare-ups three times per week in which pain increased to 8 or 9 on a scale to 10. Functional loss was noted to result in difficulty lifting objects overhead, inability to throw and pain with repetitive use. The examiner noted the following ROM testing results: forward flexion to 155 degrees; abduction to 145 degrees; external rotation to 45 degrees; and internal rotation to 60 degrees. Pain was noted upon ROM examination that did not result in or cause functional loss. The examiner noted she was unable to state whether flare-ups or pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time without resorting to mere speculation. In this regard, the examiner noted that the evidence consisted only of the Veteran’s lay statements. In an August 2017 letter, the representative asserted that the August 2016 VA examination was inadequate. Specifically, the representative asserted that the VA examiner failed to provide an adequate rationale for her conclusion that she could not state whether pain, weakness, fatigability or incoordination significantly limited functional ability following repeated use or during flare-ups without resorting to mere speculation. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the United States Court of Appeals for Veterans Claims (Court) held that examiners have to offer opinions with respect to the additional limitation of motion during flare-ups based on estimates derived from information procured from relevant sources, including a veteran’s lay statements. The Court explained that an examiner must do all that reasonably could be done in order to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. The Court held in that case that the VA examination was inadequate because the examiner, although acknowledging that the veteran in that case was not suffering from a flare-up at the time of the examination, failed to ascertain adequate information such as frequency, duration, characteristics, severity, or functional loss regarding flare-ups in order to provide the requested opinion. Accordingly, on remand the AOJ should afford the Veteran a new VA examination to determine the current manifestations and severity of his service-connected right shoulder disability, to include an adequate discussion of functional loss due to flare-ups or repetitive use. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, and all private treatment records not already associated with the file. 2. Refer the Veteran’s claims file to the VA examiner who provided the October 2016 VA diabetes examination. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed diabetes was causally or etiologically related to his in-service anthrax vaccinations. The examiner should address the August 2017 letter, wherein the Veteran’s representative asserted that the October 2016 VA examination was inadequate because while the examiner recognized speculation concerning a possible connection between anthrax vaccinations and the development of diabetes, the examiner dismissed such association on the basis of medication literature concerning vaccines and type 1 diabetes. However, the Veteran has type 2 diabetes, and the examiner did not explain why the study concerning type 1 diabetes had a bearing on type 2 diabetes. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Then, schedule the Veteran for an examination by an appropriate examiner to determine the current nature and severity of his service-connected right shoulder disability. The examiner should review pertinent documents in the Veteran’s claims file and this Remand in connection with the examination. All indicated studies should be completed, and all pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner should conduct range of motion studies. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also assess any functional impairment due to such factors as flare-ups, pain, weakness, fatigability, or incoordination, and express this functional impairment in terms of further loss of motion. In this regard, the examiner should ascertain adequate information such as frequency, duration, characteristics, severity, or functional loss, to include information provided by the Veteran. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel