Citation Nr: 21062418 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 95-05 892 DATE: October 7, 2021 REMANDED Entitlement to service connection for type II diabetes mellitus, to include as secondary to service-connected posttraumatic stress disorder (PTSD), chronic fatigue syndrome (CFS), and/or gastroesophageal reflux disease (GERD), is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1989 to September 1993. In recent September 2021 correspondence, the Veteran for the first time raised the issue of clear and unmistakable error (CUE) in relation to claims concerning his service-connected chronic cystitis, bilateral (left and right) leg cellulitis associated with dermatitis, and bronchitis. But the correspondence does not specify the rating decision in which CUE occurred, and multiple rating decisions are of record. Because any motion for revision of a prior decision based on CUE must be plead with specificity, the Board cannot construe the September 2021 correspondence as a reasonably raised CUE motion. Mindenhall v. Brown, 7 Vet. App. 271, 275 (1994) (stating where there are multiple decisions, a failure to specify the dates of the decision being collaterally attacked renders the pleading of CUE insufficient). Furthermore, the local regional office (RO) has not adjudicated the issue of CUE raised by the September 2021 statement, and the Board does not have jurisdiction in the first instance to adjudicate allegations of CUE in decisions of the RO. See Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). The Veteran, therefore, must initiate any CUE claim at the RO and, as mentioned, specify the RO rating decision(s) that he is collaterally attacking meaning after the fact. In this appeal the Veteran is claiming entitlement to service connection for type II diabetes mellitus, partly on the basis that his diabetes is directly related to environmental exposures during his service. Alternatively, he asserts that his diabetes is secondary to meaning caused or aggravated by his already determined to be service-connected PTSD, CFS, and GERD. See February 2017 Claim; June 2017 Notice of Disagreement (NOD); and June and July 2018 Correspondence. There are several VA examination reports in the claims file. The Veteran initially underwent a VA diabetes examination in March 2017. The examiner opined that the diabetes was less likely than not (less than 50/50 probability) proximately due to or the result of CFS. In support of this opinion, the examiner noted a review of the claims file, medical literature, and an interview of the Veteran. The examiner explained that type II diabetes patients become resistant to the action of insulin, and that the pancreas is unable to make enough insulin to overcome that resistance. Instead of moving into the cells where insulin is needed for energy, sugar instead builds up in the bloodstream. The examiner added that it was believed that genetic and environmental factors play a role in the development of the condition. In addition, being overweight is strongly linked to diabetes development s. With regards to direct service connection, the examiner observed that the Veteran's service treatment records (STRs) are unremarkable for any symptoms or diagnosis of diabetes, and that there is no evidence of any manifestation or diagnosis of this condition within the one-year presumptive period following the Veteran's separation from service. As that examiner, however, did not provide any medical opinion as to whether the Veteran's diabetes alternatively was caused or is aggravated by a service-connected disability, the Board remanded this claim back to the RO in October 2018 for this needed additional medical comment. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). In a February 2019 VA addendum examination report, the examiner additionally opined that it is "less likely than not (less than 50% probability)" the diabetes is proximately due to or the result of the Veteran's service-connected conditions. In support of this opinion, the examiner noted that medical literature established that genetic and environmental factors, as well as family history and geography, play a role in the development of type II diabetes. The examiner further noted that medical literature had not established that CFS, PTSD or GERD cause or aggravate diabetes. The Board nonetheless found that February 2019 addendum also inadequate since the examiner did not cite to any particular medical literature supporting the statements provided. Accordingly, the Board found the opinion was not fully explained and that the Veteran's assertions were not fully addressed, so the Board again remanded the claim for still more medical comment. In an ensuing December 2020 VA addendum medical opinion, the examiner opined that it is "less likely than not (less than 50% probability)" the Veteran's diabetes is proximately due to or the result of his service-connected disabilities. In support of this opinion, the examiner noted that the medical literature does not establish that diabetes could be caused by the Veteran's service-connected disabilities, including CFS, PTSD and/or GERD. Instead, the examiner said that the medical literature establishes that genetic and environmental factors play a role in the development of type II diabetes. Also, being overweight is strongly linked to the development of this disease. Other known risk factors cited included family history and geography. The examiner further opined that there was no objective evidence that the Veteran's diabetes was "aggravated beyond the natural progress by his service-connected disabilities." In support of this opinion, the examiner again noted that the medical literature did not support a finding that the service-connected disabilities, including CFS, PTSD and/or GERD, could aggravate diabetes. Instead, the only condition noted that could cause the Veteran's body mass index (BMI) to increase was his GERD. The examiner added that "[w]e know that many people with diabetes mellitus are overweight, so it seems to make sense that GERD is more common in these individuals." In July 2021, the Board concluded that the December 2020 VA examination was inadequate because the examiner never addressed the Veteran's assertion that his diabetes was alternatively caused by environmental exposure during his deployment to Southwest Asia, which he says involved exposure to many unknown harmful elements and agents and placed him in many health endangering environments. See June 2018 Correspondence. In addition, the December 2020 VA examiner seemingly asserted that the Veteran's service-connected GERD might have caused his BMI to increase and, thus, raised the issue of obesity as an "intermittent step" between his service-connected disability and diabetes. See Walsh v. Wilkie, 32 Vet. App. 300 (2020); VAOPGCPREC 1-2017 (Jan. 6, 2017). Medical literature titled, "Diabetes, Psychiatric Disorders, and the Metabolic Effects of Antipsychotic Medications" submitted by the Veteran's representative in May 2021 correspondence also was not considered by the VA examiner. Therefore, the Board again remanded this claim in July 2021 for still more needed medical comment. To this end, the Veteran subsequently underwent a VA examination in August 2021. But, however, even this most recent examination is inadequate for adjudication purposes, and it is incumbent on the Board in this circumstance to ensure the adequacy of the examination and opinion by obtaining all necessary additional information. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); 38 C.F.R. § 3.159(c)(4). The VA examiner opined that the Veteran's diabetes is less likely than not caused by his environmental exposure during his deployment in the Southwest Asia Theatre of Operations because medical literature does not indicate a pathophysiological relationship. However, in reaching this conclusion, the VA examiner failed to cite to any particular medical literature discounting this proposition. This most recent VA examiner also did not provide any rationale for her conclusion that the Veteran's diabetes is not secondary to again, meaning caused or aggravated by his service-connected PTSD, CFS, and/or GERD, or provide any medical opinion in response to the Board's remand directives regarding whether his obesity caused or aggravates his type II diabetes mellitus. A remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the Board's remand order. Stegall v. West, 11 Vet. App. at 270-71 (1998). As there was not acceptable substantial compliance with the Board's prior remand directives, and in accordance with Stegall, still more development of this claim is required. See also Dyment v. West, 13 Vet. App. 141 (1999) (noting that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Accordingly, this claim is REMANDED for the following still additional development and consideration: 1. Obtain still more medical comment concerning the nature and etiology of the Veteran's type II diabetes mellitus. A copy of this remand and all relevant medical and other records must be made available to the examiner to assist in this determination. The examiner should review the pertinent evidence, including the Veteran's lay assertions. The examiner must provide rationale for the medical opinion offered, irrespective of whether favorable or unfavorable to the claim. 2. Is it at least as likely as not (50 percent or greater probability) the Veteran's diabetes is related or attributable to his military service from September 1989 to September 1993 whether directly, presumptively, or secondarily by way of a service-connected disability? In making these necessary determinations, the examiner is asked to consider the Veteran's lay statements that he developed diabetes due to environmental exposure during his deployment in the Southwest Asia Theatre of Operations. *Consider the possibilities posited in the ensuing action paragraphs 3, 4, 5, 6, 7, and 8 (below). 3. Is it at least as likely as not (50 percent or greater probability) the Veteran's diabetes was caused by his service-connected disabilities including especially his PTSD, CFS and GERD? Please explain why or why not. The examiner is asked to specifically consider the Veteran's lay statements that his service-connected disabilities affected his overall health and process of nutrition and the submitted medical journal article. See treatise by Maria D. Llorente, MD, and Victoria Urrutia, MD, "Diabetes, Psychiatric Disorders, and the Metabolic Effects of Antipsychotic Medications" (January 2006) (https://clinical.diabetesjournals.org/content/24/1/18). 4. Is it at least as likely as not (50 percent or greater probability) the Veteran's diabetes was aggravated by his service-connected disabilities, including especially his PTSD, CFS and GERD? Please explain why or why not. If the examiner determines the diabetes was aggravated by a service-connected disability, if possible, the examiner must identify the baseline level of the disability prior to the aggravation versus since (i.e., the extent of aggravation). The examiner must consider the Veteran's lay statements that his service-connected disabilities affected his overall health and process of nutrition and consider the Veteran's submitted medical journal article. See treatise by Maria D. Llorente, MD, and Victoria Urrutia, MD, "Diabetes, Psychiatric Disorders, and the Metabolic Effects of Antipsychotic Medications" (January 2006) (https://clinical.diabetesjournals.org/content/24/1/11). The current examiner also must remain mindful that the prior August 2021 VA examiner failed to cite any medical literature supporting the proposition that "there is no pathophysiological relationship upon reviewed medical literature" that the Veteran's type II diabetes mellitus was neither etiologically related to his environmental exposures during deployment in the Southwest Asia Theatre of Operations, nor secondary to his service-connected disabilities, to include PTSD, CFS, and/or GERD. 5. Is it at least as likely as not (50% or better probability) that service-connected disabilities, including especially the PTSD (anxiety disorder), CFS, bronchitis, lumbar spine disability and GERD, caused the Veteran to become obese, including from lack of exercise resulting from his service-connected disabilities? In other words, is his obesity (or higher than normal BMI) an "intermediate step" between his service-connected disability and later development of diabetes? 6. If the answer is "no," is it at least as likely as not (50% or better probability) the Veteran's service-connected disabilities, including especially his PTSD (anxiety disorder), CFS, bronchitis, lumbar spine disability and GERD, aggravated his obesity, including owing to lack of exercise resulting from service-connected disability? 7. Is it at least as likely as not (50% or better probability) obesity (or aggravation of obesity) was a substantial factor in the Veteran developing diabetes? 8. Is it at least as likely as not (50% or better probability) the Veteran would not have diabetes if he were not obese (or but for obesity aggravated by his service-connected disabilities)? Rationale for the responses is essential, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. The examiner is advised that the Veteran is competent to report his symptoms and history, and these reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. The absence of evidence of treatment for type II diabetes mellitus in the Veteran's service treatment records (STRs) cannot, alone, be sufficient rationale for providing an unfavorable opinion, certainly not in the context of secondary service connection (as opposed to direct or presumptive service connection) although it is permissible to consider this as one of several factors, provided there also is explanation of why it is reasonable to have this expectation of more documentation of relevant symptoms, findings, etc., prior to initial diagnosis. If the examiner is unable to provide an opinion without resorting to mere speculation, an explanation as to why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered should be provided. In other words, merely saying that he/she cannot respond will not suffice. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, Cameron B. 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.