Citation Nr: 21063743 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-47 760 DATE: October 15, 2021 REMANDED Entitlement to service connection for diabetes mellitus, to include as due to hypertension, obstructive sleep apnea (OSA), and obesity is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2000 to November 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been before the Board previously. In November 2019 the Board remanded the issue on appeal for the Agency of Original Jurisdiction (AOJ) to obtain an addendum opinion that considers if the Veteran's diabetes was caused by exposure to environmental irritants while serving in the Persian Gulf or caused/aggravated by the service-connected hypertension or by obesity as an intermediate step. Subsequently, after a January 2020 Supplemental Statement of the Case considered the record, this matter was returned to the Board for appellate consideration. The November 2019 Board decision also remanded the issue of service connection for OSA. Subsequently, a January 2020 rating decision granted service connection for OSA. As such, this issue is no longer on appeal. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection for diabetes mellitus, to include as due to hypertension, OSA, and obesity. After review of the record, a remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that his diabetes mellitus was caused by his service-connected hypertension and OSA. See 10/22/2019 Appellate Brief, at page 2; see also 4/2/2019 Correspondence. Additionally, he contends that his diabetes mellitus should be considered under Gulf War illnesses. See 4/5/2017 NOD. Further, the Veteran raised the theory that his diabetes mellitus was due to his service-connected musculoskeletal disabilities, such as bilateral shoulder disability and bilateral ankle disability by way of obesity as an intermediary step. See 2/8/2020 Correspondence. Initially, the Board notes that service connection is currently in effect for hypertension, OSA, and bilateral shoulder and bilateral ankle disabilities. Additionally, post-service treatment records showed a diagnosis of diabetes mellitus. See 11/29/2016 CAPRI, at page 28. The Veteran was afforded a diabetes mellitus VA examination in January 2020. At the conclusion of the examination, the clinician rendered a negative nexus opinion. The clinician provided a confusing rationale. First, the clinician stated that the Veteran was obese and had hypertension, which are "precursors for [t]ype II [diabetes mellitus]." However, the clinician then stated that not all obese and hypertensive patients develop diabetes and, as such, "on that alone [the Veteran] does not have causality." See 1/6/2020 C&P Examination. Further, the clinician provided an addendum opinion on January 9, 2020. The clinician reported that there is "absolutely no medical literature or research that reports that exposure to environmental irritants while serving in the Persian [G]ulf causes [d]iabetes. Moreover, the clinician stated that the Veteran was diagnosed with diabetes 12 years after the Veteran's exposure to environmental irritants. Regarding obesity, the clinician reported that the Veteran has been overweight since 2004 and that it presents a strong risk for diabetes. However, the clinician also stated that the Veteran could have managed to engage in low impact exercise and diet management. The clinician also stated that the Veteran managed his own diet and continued to gain weight after service, as such, his obesity was not caused by service. Furthermore, the clinician stated that although the risk factors for hypertension and diabetes are the same, hypertension did not cause or aggravate the Veteran's diabetes since their etiologies are different. See 1/9/2020 C&P Examination. However, the Board finds the examination and addendum opinions inadequate to decide the claim. Regarding obesity, the clinician stated that obesity poses a strong risk for diabetes and that the Veteran's obesity was not caused by service since he could have managed to engage in low impact exercise and diet management. The opinion did not focus or explain, as instructed by the November 2019 Board remand, on the question if diabetes was caused by the Veteran's service-connected musculoskeletal disabilities by way of his obesity as an intermediate step. Additionally, the opinion did not discuss the VA research filed in April 2019, which suggests a relationship between OSA disability and diabetes and blurry vision (found in-service) as a symptom of diabetes. See 4/2/2019 Correspondence. Furthermore, the opinion did not discuss the VA research filed in February 2020, which suggests a relationship between air pollution and diabetes. See 2/8/2020 Medical Treatment Record Non-Government Facility. Moreover, the opinion did not discuss the relevance of the fact that diabetes was diagnosed 12 years after the Veteran's exposure to environmental irritants. Finally, the clinician did not discuss causation nor aggravation by his service connected OSA disability. 38 C.F.R. §§ 3.303, 3.310(b); El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Furthermore, in the August 2020 brief, the Veteran's authorized representative listed a link indicating that environmental factors, such as being overweight and inactive, seem to be contributing factors in the development of diabetes mellitus. Links are not probative evidence. Evidence is probative when it "tends to prove or disprove a point in issue." BLACK'S LAW DICTIONARY 579 (7th ed.1999). In this regard, the Board does not know if it is complete, and links often lead to a "dead" website. Also, to the extent the representative has based an argument on online reviews, it is unclear what in particular was incorrect, erroneous, etc. Without supporting evidence or a more specific contention about what was wrong or missing or inadequate about the evidence provided by this examiner, the Board will consider this relevant evidence and weigh it, as appropriate based on its merits. As such, on remand, the AOJ should obtain an addendum opinion that discusses if obesity as an intermediate step, exposure to air pollutants in service, or the Veteran's disabilities under 38 C.F.R. § 3.310 cause or aggravate the Veteran's diabetes disability. This matter is REMANDED for the following actions: 1. Obtain any and all of the Veteran's outstanding records from appropriate repositories. All records and/or responses received should be associated with the claims file. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide the records. 2. Request the Veteran's representative submit the complete article/study referenced in the August 2020 brief and/or any other complete, relevant articles that are desired to be considered in this appeal. 3. After completing directives #1 and #2, return the claims file to the examiner who conducted the January 2020 diabetes VA examination and authored the opinion and addendum opinion. A copy of this remand request should also be provided. The examiner is asked to provide a response to the following: (a.) Whether the obesity/weight gain as a result of the musculoskeletal service-connected disabilities was a substantial factor in causing his diabetes. (b.) Whether his diabetes would not have occurred but for the obesity/weight gain caused by the musculoskeletal service-connected disabilities, such as bilateral shoulder and bilateral ankle disabilities. (c.) If no to the above questions (a)-(b), is it at least as likely as not (approximately 50 percent or greater probability) that his diabetes was either 1) proximately due to OR 2) aggravated by any service-connected disability, to include OSA. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. **In doing so, please address the VA research filed in April 2019, which suggest a relationship between OSA disability and diabetes. See 4/2/2019 Correspondence; see also 2/8/2020 Medical Treatment Record Non-Government Facility, at pages 6 and 7. Additionally, the relationship between the articles' statement of blurry vision as a symptom of diabetes and the in-service finding of blurry vision. See id; see also 11/21/2016 STR Medical, at page 3. Furthermore, if submitted in full, please address the VA research filed in February 2020, which suggest a relationship between exposure to air pollution and diabetes. See 2/8/2020 Medical Treatment Record Non-Government Facility, at pages 6 and 7. Moreover, please address the relevance of the fact that diabetes was diagnosed 12 years after the Veteran's exposure to environmental irritants.** If the January 2020 reviewing clinician is no longer available, then the claims file and the January 2020 VA opinion and addendum opinion should be forwarded to another examiner of at least equal qualifications to obtain the requested opinion. A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., Associate Counsel 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.