Citation Nr: 21067411 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-17 758 DATE: November 4, 2021 ORDER Service connection for obstructive sleep apnea (OSA) is granted. Service connection for type 2 diabetes mellitus is granted. Service connection for degenerative arthritis, intervertebral disc syndrome (IVDS), and osteoarthritis of the lumbar spine with radiculopathy (low back disabilities) is granted. Service connection for degenerative joint disease (DJD) of the right knee is granted. Service connection for DJD of the left knee is granted. REMANDED Entitlement to service connection for kidney stones, to include as secondary to service-connected type 2 diabetes mellitus, is remanded. FINDINGS OF FACT 1. The competent and credible evidence demonstrates that the Veteran's OSA is secondary to his service-connected acquired psychiatric disorder and/or tinnitus. 2. The competent and credible evidence demonstrates that the Veteran's type 2 diabetes mellitus is secondary to his service-connected acquired psychiatric disorder. 3. The evidence as to whether the Veteran's low back disabilities are etiologically related to his service is at least in equipoise. 4. The evidence as to whether the Veteran's right knee DJD is etiologically related to his service is at least in equipoise. 5. The evidence as to whether the Veteran's left knee DJD is etiologically related to his service is at least in equipoise. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for OSA have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for an award of service connection for type 2 diabetes mellitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for right knee DJD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for left knee DJD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 2005 to February 2007, to include service in Djibouti, Africa. He also served on periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the U.S. Army Reserve, to include periods of ACDUTRA from November 1986 to March 1987 and for 13 days from August 2, 2009. These matters come to the Board of Veterans' Appeals (Board) on appeal from September 2014 and April 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. In March 2020, the Veteran and his wife testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This case was previously before the Board in June 2020 and May 2021, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. In the most recent remand, the Board directed the AOJ to assist the Veteran in obtaining additional private treatment records, to obtain updated VA treatment records, and to afford the Veteran new VA examinations and/or medical opinions regarding the issues on appeal. In May 2021, the AOJ sent the Veteran a letter asking him to submit or provide a release for private treatment records. In July 2021, he submitted private treatment records from one provider, but he did not respond to the AOJ's May 2021 request to identify additional private treatment providers or to provide a release for their records. In May 2021 and August 2021, the AOJ obtained updated VA treatment records. In light of the foregoing, the Board finds that the AOJ has substantially complied with the remand directives pertaining to records development. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The AOJ also obtained new VA medical opinions in July and August 2021. The Board notes that the opinions are not all fully adequate, and that the AOJ has therefore not substantially complied with the remand directives regarding those examinations and/or opinions. However, as explained below, the Board is granting the Veteran's claims for service connection for OSA, diabetes, low back disabilities, and right and left knee disabilities in full. As such, there is no prejudice to the Veteran in adjudicating those claims presently. As the Board is unable to grant the Veteran's claim for service connection for kidney stones at this time, and the July 2021 opinion obtained regarding that claim is not fully adequate, a further remand of that claim is required. See Stegall, supra. As a final preliminary matter, the Board notes that the Veteran's representative submitted a VA Form 20-0996 (Decision Review Request: Higher-Level Review) in August 2021, listing the issues currently on appeal. In so doing, however, the representative did not check the box on the form to indicate that the request was being made as an opt-in to the Appeals Modernization Act, and the AOJ rejected the application. Under the circumstances, the Board will continue to review the Veteran's appeal in the legacy review system. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for OSA, to include as secondary to a service-connected acquired psychiatric disorder and/or tinnitus The Veteran contends that his OSA was incurred in or caused by service. In a June 2021 statement, a private provider, F.N., Ph.D., opined that OSA was secondary to the Veteran's service-connected acquired psychiatric disorder and/or tinnitus. Therefore, the record has reasonably raised the theory of secondary service connection. As an initial matter, the Board notes that an April 2014 sleep study confirms that the Veteran has OSA. The Veteran is also currently service connected for an acquired psychiatric disorder, diagnosed as unspecified trauma and stressor-related disorder and major depressive disorder, and for tinnitus. The primary questions for the Board are whether the Veteran's OSA is directly related to his service, or whether it is secondary to his service-connected acquired psychiatric disorder and/or tinnitus. As noted, the Veteran submitted a statement from a private provider, Dr. N., in June 2021. Dr. N. stated that he reviewed the Veteran's VA medical records, sleep study results, other opinion evidence of record, and the Board's May 2021 remand, and that he conducted an interview with the Veteran in June 2021. Dr. N. opined that it was more likely than not that the Veteran's OSA was secondary to his service-connected acquired psychiatric disorder. He reasoned that there were many studies showing a relationship between sleep apnea and depression and cited to several medical articles in support of that proposition. He stated that the pathogenic effect seemed to be that anxiety and/or psychiatric trauma constricted the muscles of the airway as it did other muscles, both voluntary and involuntary. Dr. N. also stated that there were many studies showing a relationship between tinnitus and sleep apnea, cited to them, and stated that where some speculated that sleep apnea could produce tinnitus, others hypothesized that tinnitus is very stressful to the patient, that the Veteran reported that his tinnitus was stressful, and that stress was associated with sleep disorders, including sleep apnea. He also addressed other factors in the Veteran's case which related to sleep apnea, including that he is African American, male, and obese. He then noted that obesity was a major problem for most categories of psychiatric medications, and that peer reviewed research indicated that there was a relationship between psychiatric medications and obesity, and that the Veteran had been treated with several psychiatric medications and had gained weight while taking them. Dr. N. also noted that the Veteran weighed 215 pounds on his entrance to service and 300 pounds at separation. In light of Dr. N.'s June 2021 opinion, the Board finds that it is at least as likely as not that the Veteran's OSA is secondary to his service-connected acquired psychiatric disorder, to include medications required to treat that disability, and/or his service-connected tinnitus. Dr. N.'s opinion is the most probative evidence of record on this question. His opinion was based on review of the Veteran's record, including his reports, the medical records, and medical literature regarding the link between OSA and acquired psychiatric disorder and tinnitus, with a thorough rationale provided. As such, it is entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Inasmuch as the theory of secondary service connection was not raised until June 2021, there are also no negative opinions of record regarding that theory. The Board notes that the claims file contains additional probative evidence on the question of whether the Veteran's OSA is directly related to his service. This evidence includes a January 2016 lay statement from the Veteran's wife, a February 2018 lay statement from D.G., a fellow service member, an October 2018 Sleep Apnea Disability Benefits Questionnaire (DBQ) from K.H., M.D., a July 2020 Sleep Apnea DBQ from W.J., M.D., November 2020, July 2021, and August 2021 negative nexus opinions from VA examiners, and a July 2021 positive nexus opinion from a private provider, K.M., M.D. As noted, all of this evidence addresses the question of whether the Veteran's OSA is directly related to his active service. However, inasmuch as the Board is granting the Veteran's claim on a secondary basis, it need not address his contention that his OSA is directly related to his service. Inasmuch as Dr. N.'s June 2021 opinion constitutes competent evidence that the Veteran's OSA is secondary to his service-connected acquired psychiatric disorder and/or tinnitus, the appeal of this issue is granted. 2. Entitlement to service connection for type 2 diabetes mellitus, to include as secondary to a service-connected acquired psychiatric disorder and/or to non-service connected kidney stones The Veteran contends that his diabetes was incurred in or caused by service. Specifically, in his January 2015 notice of disagreement (NOD), he contended that during his tenure in the military his civilian records indicated an elevated amount of sugar in his blood work, that military rations were not intended for people with borderline sugar levels, and that the rations added to (aggravated) his already elevated blood sugar levels. He has also contended that his diabetes is secondary to his kidney stones. Finally, the Veteran submitted a private opinion from Dr. N. in June 2021 in which Dr. N. opined that his diabetes was secondary to his service-connected acquired psychiatric disorder. The claims file demonstrates that the Veteran has a current diagnosis of diabetes. The first element of service connection has therefore been established. The Veteran is also service-connected for an acquired psychiatric disorder. The primary questions for the Board are whether his diabetes is directly related to his service, or whether it is secondary to his service-connected acquired psychiatric disorder. In his June 2021 statement, Dr. N. stated that he reviewed the Veteran's entire claims file, the Board's May 2021 remand, and the April 2014 sleep apnea study, and that he conducted an interview with the Veteran as well. He noted that the Veteran was service-connected for unspecified trauma disorder and major depressive disorder and was also diagnosed with diabetes, and opined that diabetes was secondary to the Veteran's acquired psychiatric disorder. Dr. N. reasoned that many peer-reviewed studies showed a nexus between major depressive disorder and diabetes, cited to those articles, and stated that one of the many consequences of depression was diabetes. He also noted that there were many peer-reviewed articles showing a connection between posttraumatic stress disorder, or trauma, and diabetes, and cited to those articles as well. Dr. N. then stated that the Veteran had received and participated in mental health treatment including medications and counseling, but that he remained significantly depressed. He further noted that weight was the main risk factor for diabetes and stated that the Veteran was overweight due to service-connected physical injuries, depression, and trauma. He then stated that given responses to alternative possible causes for diabetes except for those that were service-connected, it was his opinion that diabetes was more likely than not due to the Veteran's service-connected unspecified trauma disorder and major depressive disorder. In light of Dr. N.'s June 2021 opinion, the Board finds that it is at least as likely as not that the Veteran's diabetes is secondary to his service-connected acquired psychiatric disorder. Dr. N.'s opinion is the most probative evidence of record on this question. His opinion was based on review of the Veteran's record, including his reports, the medical records, and medical literature regarding the link between diabetes and acquired psychiatric disorders, with a thorough rationale provided. As such, it is entitled to significant weight. See Nieves-Rodriguez, supra. Inasmuch as the theory of secondary service connection was not raised until June 2021, there are also no negative opinions of record regarding that theory. The Board notes that the claims file contains additional probative evidence on the question of whether the Veteran's diabetes is directly related to his service. This includes an October 2018 diabetes DBQ from Dr. K., November 2020 and July 2021 negative nexus opinions from VA examiners, and a July 2021 positive nexus opinion from a private provider, Dr. M. However, inasmuch as the Board is granting the Veteran's claim on a secondary basis, it need not address his contention that his diabetes is directly related to his service, or that it is secondary to his kidney stones. Inasmuch as Dr. N.'s June 2021 opinion constitutes competent evidence that the Veteran's diabetes is secondary to his service-connected acquired psychiatric disorder, the appeal of this issue is granted. 3. Entitlement to service connection for low back disabilities The Veteran contends that his low back disability was incurred in or caused by service. Specifically, he contended in his January 2015 NOD that his back pain evolved from prolonged lifting and pulling of military equipment over his tenure in the reserve service. As an initial matter, the Board notes that the Veteran has current disabilities of the low back. A November 2020 VA examination found that he had current diagnoses of degenerative arthritis of the spine and IVDS; her report also noted that a November 2018 private treatment record showed a diagnosis of osteoarthritis of the lumbar spine with radiculopathy. The first element of service connection has therefore been established. Regarding an in-service event, the Board notes that May 1993, October 2001, and December 2001 service treatment records (STRs) show that the Veteran was treated for low back pain during service. The May 1993 STR shows that he was diagnosed with L5 somatic dysfunction at that time. In the October and December 2001 STRs, the Veteran reported having recurrent back pain after lifting heavy things. The Board also notes that an August 2005 STR demonstrates that while serving in Africa, the Veteran worked at least in part in water well drilling. Regarding a link, or nexus, between the Veteran's current low back disability and an in-service event, injury, or disease, the Veteran submitted a lumbar spine DBQ from Dr. M. in July 2021. Dr. M. stated that the Veteran had lumbar spine disabilities that manifested or were diagnosed during active service. He cited to the May 1993 STR showing treatment for low back pain, muscle spasms, and radiating pain in service, noting that the final diagnosis was lumbar spine somatic dysfunction. Dr. M. explained that that was defined as impaired or altered function of related components of the somatic, or body framework system, and that somatic dysfunction injuries typically presented with restricted motion, fixation of structures, development of trigger points, and the compression and entrapment of nerves. Dr. M. further noted that low back pain continued on and off and was noted again in July 1997, and that another provider noted bilateral knee pain in an October 2001 STR. He stated that pain continued throughout military service with restricted movement, increasing lower extremity weakness, and increased muscle spasm, and that the Veteran's injuries during service progressed and created a chronically altered gait. He further noted that the Veteran had daily exposure to whole-body vibrations from drilling and military equipment, and that an increased prevalence of musculoskeletal symptoms in the neck, shoulders, and low back had been medically proven when exposed to whole-body vibration as a daily routine. Dr. M. added that while deployed to Africa, the Veteran's duties included operating air compressors and related pneumatic tools, and performing digging, backfilling, and loading operations. He stated that it was a known medical fact that exposure to vibration could cause significant damage to the body and traumatic pressure on the joints, especially the knees, feet, ankles, hips, and spine, and that as a result, chronic joint disabilities usually followed. Dr. M. then cited to imaging studies of the lumbar spine and noted that the Veteran's pain was found at the base of the spine and radiated downward with severe intensity, and that undue stress on the vertebrae had caused thoracic and cervical spine pain along with abnormal curves to the spine. He further noted that the Veteran had an abnormal gait, and that when an altered gait is repeated day after day, week after week, and year after year, it weakened the muscles and joints. Dr. M. then opined that after a complete records review, it was his professional opinion that the Veteran's low back disabilities were incurred as a direct result of his active military service. In light of Dr. M.'s July 2021 opinion, the Board finds that it is at least as likely as not that the Veteran's low back disabilities were incurred in or caused by service. The Board acknowledges that Dr. M.'s citation to the July 1997 STR is inconsistent with that specific piece of evidence, inasmuch as the July 1997 STR is silent for complaints of, treatment for, or a diagnosis of a low back problem. However, the remainder of his opinion is entirely consistent with the evidence of record. The basic premise of Dr. M.'s opinion is that the Veteran was treated for low back pain during service, that it was caused in part by his work drilling and performing other types of laborious activities while deployed, and that his current low back disabilities are causally related to his in-service injuries or the performance of his in-service duties. Inasmuch as Dr. M.'s July 2021 opinion is largely consistent with the Veteran's STRs and the other evidence of record, the Board resolves any reasonable doubt in the Veteran's favor and finds that Dr. M.'s opinion is entitled to significant probative weight. His opinion was based on review of the Veteran's record, including his reports, the medical records, and other records verifying the Veteran's duties during his active service, with a thorough rationale provided. See Nieves-Rodriguez, supra. The Board acknowledges that November 2020 and July 2021 VA examiners offered negative nexus opinions regarding the Veteran's low back disabilities. However, as noted in its May 2021 remand, the Board found that that November 2020 VA opinion was not fully adequate. The Board further finds that the July 2021 VA examiner did not support his opinion with sufficient rationale. The Board finds that Dr. M.'s July 2021 opinion is the most probative evidence of record on the question of whether the Veteran's low back disabilities were incurred in or caused by service. In any event, the evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. As such, and resolving reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not that the Veteran's low back disabilities were incurred in or caused by service. The Board also notes that notes that the claims file has raised the question of whether the Veteran's low back disabilities pre-existed service. While the Veteran's July 1986 entrance examination is silent for any notation or indication or low back problems, he reported in the May 1993 STR that he had had back pain on and off since high school. The October 2001 STR also shows that the Veteran reported injuring his back in high school while playing football. When asked about that injury at his March 2020 hearing, however, the Veteran explained that he fell on his back during his senior year of high school while playing football, but that providers said it was only a strain. He further testified that despite the injury, he went on to play football in college. The Board finds the Veteran's testimony in this respect fully credible, as there is nothing in the claims file to contradict his testimony. It finds that the evidence demonstrates that the Veteran's low back disabilities did not clearly and unmistakably preexist service, and that it is at least as likely as not that they were incurred in or caused by service. The appeal of this issue is granted. 4. Entitlement to service connection for a right knee DJD 5. Entitlement to service connection for a left knee DJD The Veteran contends that his knee disabilities were incurred in or caused by service. As an initial matter, the Board notes that he has DJD of both knees, as demonstrated by June 2021 imaging. The first element of service connection has therefore been established. Regarding an in-service event, the Board notes that the Veteran's STRs show that he was treated for knee problems on multiple occasions during service. An October 2001 STR shows that fluids built up in his knees after running; in a December 2001 STR he reported having knee trouble; he also reported having knee problems in a May 2004 STR, and was given a physical profile of no running at that time; the Veteran also reported right knee pain in a September 2008 STR, when he was diagnosed with DJD or arthritis of the bilateral knees, and a provider noted that the Veteran still had restrictions on running due to bilateral knee pain and swelling; an August 2009 STR also shows that the Veteran was seen for bilateral knee pain and by that time he had a permanent profile for his knees. Regarding the nexus, or link, between the Veteran's current knee DJD and an in-service event or injury, the Veteran submitted a statement from Dr. M. in July 2021. Dr. M. stated that the Veteran had bilateral knee pain that manifested during his military service. He stated that a July 1997 STR noted knee swelling, increased knee fluid, and decreased physical activity, and he also cited to the October and December 2001 STRs regarding knee pain. Dr. M. also cited to the May 2004 STR in which the Veteran was given a physical profile, as well as pre-deployment assessments which noted profiles. Dr. M. then stated that despite physical therapy, the Veteran's knee problems progressed in service, and that during service he had traumatic injuries to his knee joints and prolonged exposure to vibration. He repeated the duties of the Veteran while he was deployed to Africa and stated that it had been medically accepted that having one knee injury would result in having a similar injury to the other knee. Dr. M. stated that the knees were one of the largest joints of the body and supported the body's weight along with the hip joints and the back, and that the Veteran developed poor posture, altered walking, and low back pain with chronic gait problems. Dr. M. then opined that after a complete records review, it was his professional opinion that the Veteran's knee disabilities were incurred as a direct result of his active service. In light of Dr. M.'s July 2021 opinion, the Board finds that it is at least as likely as not that the Veteran's knee disabilities were incurred in or caused by service. The Board acknowledges that Dr. M.'s citation to the July 1997 STR is inconsistent with that specific piece of evidence, inasmuch as the July 1997 STR is silent for complaints of, treatment for, or a diagnosis relating to the knees. However, the remainder of his opinion is entirely consistent with the evidence of record. As noted, STRs from October and December 2001 show treatment for knee problems, a May 2004 STR shows that the Veteran was put on a physical profile for his knees at that time, and the Veteran's pre-deployment assessments, while failing to specify what profile or profiles he was on, certainly confirm that he was on physical profile for at least some reason. Dr. M.'s statements regarding the problems caused by the Veteran's duties while deployed involving drilling, backfilling, and other laborious tasks are also consistent with the other evidence of record. Inasmuch as Dr. M.'s July 2021 opinion is largely consistent with the Veteran's STRs and the other evidence of record, the Board resolves any reasonable doubt in the Veteran's favor and finds that Dr. M.'s opinion is entitled to significant probative weight. His opinion was based on review of the Veteran's record, including his reports, the medical records, and other records verifying the Veteran's duties during his active service, with a thorough rationale provided. See Nieves-Rodriguez, supra. The Board acknowledges that November 2020 and July 2021 VA examiners offered negative nexus opinions regarding the Veteran's knee disabilities. However, as noted in its May 2021 remand, the Board found that that November 2020 VA opinion was not fully adequate. The Board further finds that the July 2021 VA examiner did not support his opinion with sufficient rationale, and that Dr. M.'s July 2021 opinion is the most probative evidence of record on the question of whether the Veteran's knee disabilities were incurred in or caused by service. In any event, the evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. As such, and resolving reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not that the Veteran's knee disabilities were incurred in or caused by service. The appeal of these issues is granted. REASONS FOR REMAND Entitlement to service connection for kidney stones, to include as secondary to service-connected type 2 diabetes mellitus, is remanded. The Veteran contends that his kidney stones were incurred in or caused by service. Specifically, he contends that he developed kidney stones during a 13-day period of ACDUTRA from August 2, 2009, while serving at Fort Jackson, South Carolina. He further contends that his kidney stones are secondary to his now service-connected diabetes and in December 2020 he submitted and undated article indicating that diabetes can lead to kidney stones along with a 2006 article on diabetes and kidney stone formation. In its April 2020 remand, the Board directed the AOJ to afford the Veteran a VA examination in connection with his claim. It specifically instructed the examiner to consider a March 2018 opinion from Dr. H. While the AOJ obtained a VA opinion in November 2020, in its May 2021 remand the Board found that the November 2020 VA opinion was inconsistent with evidence of record showing that the Veteran was treated for kidney stones during the 13-day period of ACDUTRA that began on August 2, 2009, that her opinion did not address the Veteran's case specifically, that it addressed the issue in terms of possibility rather than probability, and that because the Veteran submitted articles regarding the relationship between diabetes and kidney stones subsequent to the November 2020 VA examination, the examiner did not have the benefit of reviewing those articles. For these reasons, the Board directed the AOJ to obtain an addendum opinion from the November 2020 VA examiner in its May 2021 remand. The Board specifically instructed the examiner to consider the medical articles submitted by the Veteran in December 2020, and that if the examiner found that Veteran's diabetes was service-related, she should also provide an opinion as to whether the Veteran's kidney stones were secondary to his diabetes. The AOJ obtained an addendum opinion from a different VA examiner in July 2021. He offered a negative nexus opinion as to direct service connection, reasoning that there was no information in the Veteran's STRs to indicate that he developed kidney stones during service, citing to the Veteran's January 2007 separation examination and stating that it was normal. The examiner also offered a negative nexus as to secondary service connection, reasoning that there was no information to indicate that the Veteran developed kidney stones as a result of diabetes, that there was no evidence in medical literature to suggest that diabetes could cause kidney stones, and that there was no evidence in medical literature to suggest that diabetes aggravates kidney stones. The Board finds that the July 2021 VA opinion is inadequate for a number of reasons. First, the examiner failed to address the fact that the Veteran was treated for kidney stones during the 13-day period of ACDUTRA beginning on August 2, 2009. Second, the examiner's statement that there was no evidence in medical literature to suggest that diabetes could cause kidney stones directly contradicts the medical articles submitted by the Veteran in December 2020, which indicate that there may be a link between diabetes and kidney stones. Third, the examiner did not acknowledge or address the March 2018 statement of Dr. H. Fourth, the examiner's opinion is not supported by sufficient rationale. Under the circumstances, remand for a new opinion is required. See Stegall, supra. The Board also notes that the Veteran submitted a private opinion from Dr. M. regarding kidney stones in July 2021. Dr. M. stated that the Veteran had ongoing urinary frequency, frequent urinary tract infections (UTIs), and kidney stones noted throughout his STRs. He stated further that during active service the Veteran had ongoing episodes of having to hold his urine along with being exposed to contamination causing UTIs, painful urination, incontinence, and frequency, and that the frequent need to urinate caused him to have ongoing bladder pain and pressure. He then opined that it was his professional opinion that the Veteran's frequent UTIs, urination, incontinence, kidney stones, and nephrolithiasis was incurred as a direct result of his military service. While clearly supportive of the Veteran's claim, the Board finds that Dr. M.'s July 2021 statement regarding kidney stones is insufficient to support an award of service connection. The statement is inconsistent with the evidence of record. The Board has carefully reviewed the Veteran's STRs but is unable to find even a single reference in those records showing complaints of, treatment for, or any diagnoses related to urinary frequency, UTIs, or incontinence. As noted, the Veteran was certainly treated for kidney stones during the 13-day period of ACDUTRA beginning on August 2, 2009, but this is the only reference to kidney stones or to any of the other problems noted by Dr. M. in his July 2021 statement in the Veteran's STRs. The Veteran in fact denied having painful or frequent urination at his July 1986 entrance examination, in a September 1991 STR, in a July 1997 STR, in an October 2001 STR, and in a December 2001 STR. While the Board therefore finds that Dr. M.'s July 2021 statement is insufficient for an award of service connection for kidney stones, it finds further that the new VA examiner should consider it when formulating his or her opinion. Updated records of any VA treatment records should also be procured. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency). This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed, arrange to provide the record on appeal to a qualified VA examiner for the purpose of determining the etiology of the Veteran's kidney stones. The examiner should review the record. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's kidney stones had their onset in, or are otherwise attributable to, the Veteran's period of active service. In so doing, the examiner should consider the August 2009 STRs showing that the Veteran was treated for kidney stones during a 13-day period of ACDUTRA that began on August 2, 2009. The examiner should also consider the March 2018 statement of Dr. H. and the July 2021 statement of Dr. M. If the examiner finds that is it unlikely that the Veteran's kidney stones had their onset in, or are otherwise attributable to, a period of active service, the examiner should offer a further opinion as to the likelihood of whether the Veteran's kidney stones 1) are related to a disease or injury incurred in or aggravated during a period of active duty for training (ACDUTRA) or 2) are related to an injury incurred in or aggravated during a period of inactive duty for training (INACDUTRA) (the Board notes parenthetically that only injuries, and not diseases, are recognized under 38 U.S.C. § 101(24) as the basis for establishing service-connected related to periods of INACDUTRA). If the examiner finds that the Veteran's kidney stones are not service-related, he or she should offer a further opinion as to whether they are a) caused or b) aggravated (i.e., worsened beyond their natural progression) by his service-connected diabetes. In so doing, the examiner should consider and address the two medical articles submitted by the Veteran in December 2020 regarding the relationship between diabetes and kidney stones. The need for an in-person and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinion(s). A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.