Citation Nr: 21003967 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 16-45 761 DATE: January 25, 2021 REMANDED Entitlement to service connection for mitochondrial myopathy, including as due to exposure to herbicide agents or as secondary to service-connected diabetes mellitus, type II, is remanded. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU), prior to September 4, 2014, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1964 to December 1973. He served in Vietnam and his military awards include the Purple Heart and Combat Infantryman Badge. This matter is before the Board of Veterans’ Appeals (Board) on appeal of May 2013 and January 2017 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2020, the Board remanded these claims for additional development. A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for mitochondrial myopathy, including as due to exposure to herbicide agents or as secondary to service-connected diabetes mellitus, type II, is remanded. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 1 Vet. App. 49 (1990). In September 2020, the Board remanded the Veteran’s claim of entitlement to service connection for mitochondrial myopathy. The Board required “an addendum opinions from an appropriate clinician regarding whether the Veteran’s mitochondrial myopathy is at least as likely as not related to his active service, including exposure to herbicide agents” and “whether mitochondrial myopathy is at least as likely as not proximately due to diabetes mellitus, type II or aggravated beyond its natural progression by diabetes mellitus, type II.” In November 2020, additional VA etiology opinions were added to the claims file. The examiner opined mitochondrial myopathy was less likely than not incurred in or caused by the Veteran’s active service (including exposure to herbicide agents.) In support of this opinion he stated that medical studies had shown “a statistical relationship between mitochondrial DNA damage, but have not provided a causal link between herbicide exposure and the development of mitochondrial myopathy. There is no established medical nexus related to service.” Similarly, the examiner opined mitochondrial myopathy was less likely than not proximately due to service-connected diabetes mellitus, type II. In support, he stated, “there are some subtypes of diabetes associated with some specific mitochondrial DNA mutations. However, there is no established etiological link between the specific mitochondrial mutation which is related to mitochondrial myopathy due to type II Diabetes Mellitus. There is no established medical nexus.” The rationale provided in support of these negative etiology opinions is insufficient. The examiner acknowledged a “statistical relationship” between mitochondrial myopathy and herbicide exposure and an “association” between some types of diabetes and mitochondrial DNA mutation. However, he did not provide any discussion of the Veteran’s particular medical history and how this “statistical relationship” or “association” might be applicable to his clinical course. Moreover, the examiner’s negative etiology opinions appear to rely on the lack of an “established medical nexus” within the medical community. It is not clear what standard of proof would be required establish such a medical nexus. This standard may be higher than the benefit of the doubt standard applied to a Veteran’s claim for service connection. Thus, the lack of an “established medical nexus” without additional explanation of this standard and a discussion of the Veteran’s specific medical history, is insufficient rationale to reject the Veteran’s claim. The November 2020 etiology opinions did not provide the analysis as directed by the Board’s prior remand. These opinions are insufficient and additional VA etiology opinions must be obtained. See Stegall, supra. 2. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II is remanded. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting in the procurement of service treatment records and all relevant pre-and post-service treatment records, and by providing an examination, when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In August 2020, the Board noted that the most recent VA treatment records associated with the claims file were from December 2016. The Board remanded the claim and directed the RO to obtain outstanding VA treatment records. Subsequently, VA treatment records from September 2019 to August 2020 were associated with the claims file. No VA treatment records from December 2016 to September 2019 were obtained. September 2019 VA primary care notes refer to recent laboratory testing and indicate prescriptions were “issued” earlier in 2019. November 2019 primary care notes refer to a “pro-diabetes” appointment in February 2018. Thus, it appears additional VA treatment records remain outstanding. In August 2020, the Board also directed the RO to contact the Veteran and request that he identify and authorize the release of outstanding relevant medical records from private medical treatment providers. A September 2020 letter from the RO requested this information and assistance from the Veteran. VA treatment records from August 2020 note that the Veteran’s daughter called his primary care provider and reported her father had been recently hospitalized after having a heart attack. At the time of the phone call, she said that the Veteran was living in a rehabilitation facility. Accordingly, it is not clear the September 2020 letter was effective in contacting the Veteran. 3. Entitlement to a total disability rating due to individual unemployability (TDIU), prior to September 4, 2014, is remanded. The issue of entitlement to a TDIU prior to September 4, 2014 remains intertwined with the issues discussed above. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Contact the Veteran again and ask him to complete a VA Form 21-4142 for any private medical treatment provider (including any neurologist, endocrinologist, or other specialist who provided treatment for mitochondrial myopathy or diabetes mellitus, type II) or facility (including any hospital or facility where a pancreatic surgery or care related to a pancreatic surgery were performed) which may have records relevant to his claims. Make two requests for the authorized records from any medical treatment provider or facility identified unless it is clear after the first request that a second request would be futile. 2. Obtain all outstanding VA treatment records. If no VA treatment records are associated with the file for the period between December 2016 to September 2019, document all efforts made to obtain them. 3. Obtain an addendum opinion from an appropriate clinician. The clinician must fully review the claims file, including this remand decision. The clinician must provide an opinion regarding whether the Veteran’s mitochondrial myopathy is at least as likely as not related to his active service, including exposure to herbicide agents. The clinician must also opine whether mitochondrial myopathy is at least as likely as not proximately due to diabetes mellitus, type II or aggravated beyond its natural progression by diabetes mellitus, type II. In providing these opinions, the clinician should fully review and discuss the evidence of record, including statements from the Veteran, VA treatment records, reports from private neurologists and other clinicians, and the medical literature provided by the Veteran. Failure to fully discuss the Veteran’s specific medical history and/or to fully explain whether, in his case, mitochondrial myopathy is “at least as likely as not” causally related to herbicide agent exposure or diabetes mellitus, type II will render the opinion(s) provided inadequate. 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. Aggravation and causation are distinct theories and must be addressed separately and independently of each other. If aggravation is found, the clinician must attempt to establish a baseline level of severity of mitochondrial myopathy prior to aggravation by diabetes mellitus, type II. If the clinician determines an examination is required to provide the opinions requested, schedule an examination. If feasible, schedule a telehealth examination. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.