Citation Nr: 21070237 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-55 685 DATE: November 23, 2021 REMANDED Entitlement to service connection for a bilateral lower extremity disability characterized as neuropathy is remanded. Entitlement to service connection for diabetes mellitus is remanded. REASONS FOR REMAND 1. Entitlement to service connection for service connection for a bilateral lower extremity disability characterized as neuropathy; and entitlement to diabetes mellitus are remanded. The Veteran had active duty service from July 1967 to July 1969 and subsequently served in the Army Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal of an October 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to service connection for diabetes mellitus and a bilateral lower extremity disability claimed variously as radiculopathy and/or diabetic neuropathy, to include as secondary to Agent Orange exposure. The Board here notes, as it did in September 2019, that the Veteran's service records reflect service in the Republic of Vietnam. Exposure to herbicide agents is therefore conceded 38 C.F.R. § 3.307. These matters were previously before the Board in September 2019 at which time they were remanded to, in pertinent part, obtain a VA examination as to the nature and etiology of the Veteran's claimed disabilities, to include whether his claimed bilateral lower extremity is related to his claimed diabetes mellitus, type II and/or his service-connected lumbar strain with arthritis and degenerative disc disease; and/or his in-service exposure to herbicide agents. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Once VA undertakes the effort to provide an examination when developing a claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board now finds that there has not been substantial compliance with its September 2019 remand directives as an adequate VA medical opinion has not been obtained. The Veteran was afforded a VA examination in May 2021. At that time, the examiner recorded a diagnosis of diabetes mellitus, type II with a diagnosis date the day of the examination. It was further opined that the Veteran's claimed bilateral lower extremity radiculopathy was at least as likely as not the result of the diabetes mellitus, type II, stating as follows: "[Electromyography] from 01/2017 shows length dependent sensory peripheral polyneuropathy consistent with Diabetic peripheral neuropathy . . . Neurology Consult [03/2020] notes neuropathy is multifactorial in nature but likely related to Diabetes Mellitus. It does not mention a back condition as potential etiology. The EMG results are consistent with Diabetes, not lumbar radiculopathy. It is more likely than not current neuropathy is proximately related to Diabetes Mellitus." The VA examiner used the same rationale above in support of his conclusions that the Veteran's claimed bilateral lower extremity disability was not the result of either his service-connected lumbar spine disability or his in-service herbicide agent exposure. However, in an addendum opinion obtained in September 2021, the same examiner stated that the Veteran did not have a diagnosis of diabetes mellitus, type II. The examiner did not offer any addendum or revision to his prior opinions regarding the relationship, or lack thereof, between the Veteran's bilateral lower extremity disability and his lumbar spine disability and/or herbicide agent exposure. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion. Stefl v. Nicholson, 21 Vet. App. 120, 125 (U.S. 2007). The Board finds that Dr. T.'s May 2021 and September 2021 opinions are inadequate, as they are conclusory, not supported by a factually accurate, fully articulated rationale, and do not reflect consideration of all lay and medical evidence of record. As an initial matter, the Board observes that the VA examiner's opinion as to the nature and etiology of the Veteran's claimed bilateral lower extremity disability rests on the factual premise that the Veteran has diabetes mellitus, type II. Other than that examiner's May 2021 diagnosis, there is no other evidence of record reflecting a diagnosis of diabetes mellitus. In September 2021 the same examiner revised his opinion to state that the Veteran did not have diabetes mellitus, type II. In light of this revision, the rationale supporting the opinions that the Veteran's claimed bilateral lower extremity disability are less likely than not the result of his lumbar spine disability and/or herbicide agent exposure is largely undermined, significantly reducing the opinions' probative value. Further, the VA examiner stated that a March 2020 treating provider consultation note "does not mention a back condition as potential etiology." However, the March 2020 consultation note cited in the examination report states as follows: "[The Veteran] is . . . returning for review of lower extremity paresthesias and EMG consistent with peripheral neuropathy . . . felt multifactorial from . . . pre-diabetes . . . and low back pain." [emphasis added] 05/26/2020, CAPRI, p. 3. The Board finds that the VA examiner's May 2021 opinions do not reflect consideration of the evidence suggesting that the Veteran's treating providers have identified his lumbar spine disability as a contributing factor to his claimed bilateral lower extremity disability. Accordingly, the VA opinion as to any purported relationship between the Veteran's lumbar spine disability and his claimed bilateral lower extremity disability, or lack thereof, is inadequate. The Board here notes that there is currently insufficient evidence to support a finding that the Veteran's claimed bilateral lower extremity disability is the result of his service-connected lumbar spine disability. The March 2020 treating provider consultation note identifies an extensive list of medical conditions as contributing factors to the Veteran's claimed bilateral lower extremity disability, beyond those quoted above. 05/26/2020, CAPRI, p. 3. The Board also notes that the Veteran's treating providers characterize the Veteran's bilateral lower extremity disability as peripheral neuropathy, a condition associated with damage to peripheral nerves, rather than radiculopathy, a condition associated with damage to nerves associated with the spine. Under 38 C.F.R. § 3.310(a), a disability which is proximately due to or the result of a service-connected disease or injury is service connected. "Proximate cause" is defined as a "cause that directly produces an event and without which the event would not have occurred.'" VAOPGCPREC 6-2003 (quoting Black's Law Dictionary 213 (7th ed. 1999)). When there are potentially multiple causes of a harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action. A determination of proximate cause is basically one of fact, for determination by adjudication personnel. VAOPGCPREC 6-2003 and 19-1997. In light of the numerous factors identified by the Veteran's treating providers as contributing to his claimed bilateral lower extremity disability, and their ultimate characterization of the disability as one associated with the peripheral nerves, rather than nerves associated with the spine, the Board cannot here make a finding that the Veteran's service-connected lumbar spine disability was a substantial factor in bringing about the claimed disability, or that the claimed disability would not have occurred but for the lumbar spine disability. The evidence discussed above does raise the possibility that the Veteran's claimed bilateral lower extremity disability has been aggravated by his lumbar spine disability. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established. This baseline is to be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). There is currently no medical opinion addressing the issue of aggravation, and the Board may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board further finds that the VA May 2021 opinion as to the purported relationship between the Veteran's claimed bilateral lower extremity disability and his conceded herbicide agent exposure, apart from its reliance on the inaccurate premise of a diabetes diagnosis, is conclusory. In addition to the rationale discussed above, Dr. T. further stated that "there is no evidence that the Veterans' [herbicide agent] exposure [led] to [his bilateral lower extremity disability]." 08/30/2021, C&P Exam, Neuropathy/HA, p. 2. The Board finds this opinion conclusory, as it does not reflect the application of medical principles to the evidence of record. In light of the foregoing, the Board finds that there is no medical opinion currently of record that adequately addresses the nature and etiology of the Veteran's claimed bilateral lower extremity disability. Accordingly, there has not been substantial compliance with the Board's September 2019 remand directives and additional remand is required. Because evidence developed in the course of adjudicating the Veteran's claim to service connection for a bilateral lower extremity disability could significantly impact a decision on the issue of service connection for diabetes mellitus, type II, the issues are inextricably intertwined, and a remand is required. The matters are REMANDED for the following action: 1. Forward the claims file, including this remand, to the examiner who provided the May 2021 opinion. If the May 2021 VA examiner is unavailable, or is unable to offer the opinion sought, the requested opinions should be obtained from another appropriately qualified clinician. The examiner shall indicate in the addendum report that the claims file was reviewed. The need for an additional in person examination is left to the discretion of the medical professional offering the addendum opinion. The examiner is requested to opine as to whether the Veteran's claimed bilateral lower extremity disability is at least as likely as not (1) proximately due to service-connected disability, to include lumbar strain with arthritis and degenerative disc disease and/or in-service exposure to herbicide agents or (2) aggravated beyond its natural progression by service-connected disability to include lumbar strain with arthritis and degenerative disc disease and/or in-service exposure to herbicide agents. If the Veteran is found to have a diagnosis of diabetes mellitus at the time of the examination, the examiner should state whether it is at least as likely as not that the Veteran's claimed bilateral lower extremity disability is proximately due to, or aggravated beyond its natural progression by, such diabetes mellitus. If aggravation is found (at least as likely as not) due to lumbar strain, herbicide agent exposure, and/or diabetes mellitus, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner explain why an opinion cannot be provided and specifically state whether the inability to provide an opinion is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence that would allow for an opinion on this matter. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sametshaw, Eric C. 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.