Citation Nr: 21067295 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-57 855 DATE: November 3, 2021 REMANDED The appeal as to the claim of entitlement to service connection for a right foot disorder is remanded. The appeal as to the claim of entitlement to service connection for diabetes mellitus type II is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from September 1973 to April 1983. His service was under honorable conditions. The matters are on appeal from a June 2013 rating decision. In January 2020, the Veteran testified at a video conference hearing at the RO (Regional Office) before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing has been prepared and associated with the evidence of record. In March 2020, the Board remanded the issues on appeal for further evidentiary development. The issues have returned to the Board for further appellate consideration. 1. Entitlement to service connection for a right foot disorder. The Veteran contends that his current right big toe sprain is related to his active service. In this regard, during a January 2020 hearing before the Board, he testified that he injured his right big toe when he fell in the shower and it got caught in the shower door. The Veteran further asserted that he has experienced symptoms of pain and decreased mobility since the initial injury. Service treatment records include a March 1981 emergency care and treatment visit for an injury to the Veteran's right big toe. The Veteran reported that he fell, and his right big toe got caught in a door; the assessment was a right big toe injury and profile was assigned for seven days. Post-service records include the report of a January 2021 VA examination, during which the Veteran reported ongoing chronic pain of his right big toe since active service, when he injured his toe due to a fall in the shower. Upon examination and review of the record, the examiner diagnosed right great toe sprain. The examiner opined that the Veteran's current right great toe sprain was not related his inservice injury, as the injury in service was acute, and there is no medical evidence of chronicity of care. The Board finds the medical opinion of record inadequate to adjudicate the claim, as the January 2021 VA examiner did not address the Veteran's statements and testimony indicating that he experienced ongoing right big toe pain and decreased mobility, since the documented injury during active service. Accordingly, an additional medical opinion is necessary to make a determination in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to service connection for diabetes mellitus type II. The Veteran contends that his current diabetes mellitus type II disorder preexisted active service and was aggravated during the course of service. In this regard, he reports that he was initially rejected from active service due to having sugar in his urine, but he was informed that if he obtained a letter from his private physician contradicting that finding, then he would be approved and accepted into active service. The Veteran further reports that he has been treated for diabetes mellitus type II since the early 1990's, with gaps in treatment, due to a lack of insurance. Service treatment records include the report of a September 1973 induction examination that includes a finding of a negative glucose test. There is a notation on the examination report that states, "regarding sugar in the urine-ok per ltr." Post-service records include a 1991 private treatment record indicating a diagnosis of diabetes mellitus type II. A July 2009 private treatment record that notes the Veteran's report of problems with his blood sugar since 2005; testing at the time revealed an abnormal blood glucose finding. Subsequent private and VA outpatient treatment records demonstrate ongoing treatment for diabetes mellitus type II. The report of a January 2021 VA examination indicates a diagnosis of diabetes mellitus type II. Upon examination and review of the record, the examiner found that the Veteran's current diabetes was not related to his active service. In providing the opinion, the examiner noted that the service treatment records are negative for a preexisting diabetes diagnosis, and treatment for the disorder during active service. The examiner remarked that he found the Veteran's report of sugar in his urine prior to entry into service credible; however, he concluded that it was not supported by the service treatment records or post-service records, as the service treatment records were negative for a finding of diabetes, and the post-service records did not demonstrate a finding of diabetes until July 2009. The Board finds the medical opinion of record inadequate to adjudicate the claim. While the January 2021 VA examiner found the Veteran's statements regarding sugar in his urine prior to entry into service, he failed to consider the Veteran's ongoing assertions and testimony of symptoms since active service. Moreover, the Veteran's September 1973 induction examination suggests that he had a positive test result, demonstrating sugar in his urine. Finally, the post-service records indicate an initial diagnosis of diabetes mellitus type II in 1991, not in 2009. Thus, the examiner's opinion is based on an inaccurate review of the record. Accordingly, an additional medical opinion is necessary to make a determination in this case. See Id. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include updated VA outpatient treatment records. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the current right great toe sprain, manifested during, or as a result of, active military service. In providing the opinion, the examiner must discuss the March 1981 service treatment record that shows the Veteran sought emergency care for an injury to his right big toe, due falling and his right big toe got caught in a door; the assessment was a right big toe injury and profile was assigned for seven days. The examiner must discuss the Veteran's current diagnosis of a right great toe sprain. Finally, the examiner must discuss the Veteran's statements and testimony indicating that he experienced ongoing right big toe pain and decreased mobility, since the documented injury during active service. For purposes of the opinion, the examiner should assume that the Veteran is a credible historian to report on in-service and post-service symptomology he experienced. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 3. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the current diabetes mellitus type II disorder, was present in service and, if so, did the disorder clearly and unmistakably exist prior to the Veteran's entrance onto active service? With respect to any such disorder which the examiner believes existed prior to the Veteran's entrance onto active duty, was the disorder aggravated by service? Please indicate the degree of certainty as to whether or not the disorder (s) was or was not aggravated by service. With respect to any currently present disorder which the examiner believes was not present during service, is it at least as likely as not (i.e., at least 50 percent probable) that the disorder is etiologically related to the Veteran's active service? In providing the opinion, the examiner must discuss the September 1973 induction examination that includes a finding of a negative glucose test, and a notation on the examination report that states, "regarding sugar in the urine-ok per ltr." The examiner must discuss the Veteran's statements and testimony, indicating that he was initially rejected from active service due to having sugar in his urine, but he was informed that if he obtained a letter from his private physician contradicting that finding, then he would be approved and accepted into active service. The examiner must also discuss the post-service records, to include an initial diagnosis of diabetes mellitus type II in 1991, during the course of private treatment. For purposes of the opinion, the examiner should assume that the Veteran is a credible historian to report on in-service and post-service symptomology he experienced. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 4. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period for response before the case is returned to the Board for further appellate action B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Schinnerer, 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.