Citation Nr: 21071309 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 13-25 243 DATE: November 30, 2021 REMANDED Entitlement to service connection for a throat disorder is remanded. Entitlement to service connection for type II diabetes mellitus is remanded. Entitlement to service connection for a disorder characterized by trembling and tingling of the fingers is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1984 to April 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2011 and February 2012 rating decisions. The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2014. A transcript is of record. The Board remanded the case for further development in September 2015, May 2018, August 2019, and February 2021. The case has since been returned to the Board for appellate review. The Board notes that the appeal had also originally included the issue of entitlement to service connection for a right lower extremity neurological disorder. However, in an April 2021 rating decision, the agency of original jurisdiction (AOJ) granted service connection for right S1 radiculopathy. The grant of service connection for that issue constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, the matter is no longer in appellate status. See Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). The Board further notes that the Veteran has been granted a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) effective from December 19, 2011. Upon review, the Board finds that further development is needed prior to adjudication of the issues remaining on appeal. The Veteran was afforded an additional VA examination in connection with his claim for service connection for a throat disorder in April 2021. The examiner determined that he did not have any congenital defect or disease. She noted that a thyroglossal duct cyst was considered as a possible diagnosis, but has been ruled out and that the diagnosis was removed from the Veteran's problem list in December 2011. The examiner also found that he was successfully treated for epiglottitis with antibiotics. She opined that it is less likely as not that a throat disorder manifested in or is otherwise causally or etiologically related to the Veteran's military service, including any symptomatology or asbestos exposure therein. In rendering the opinion, she found that there are no episodes of acute illness documented in the service treatment records that are suggestive of the presence of epiglottitis. Nevertheless, the Board notes that a March 2008 treatment record shows that there was principal final diagnosis of an infected thyroglossal duct cyst rather than a possible diagnosis as noted by the April 2021 VA examiner. Moreover, it is unclear as to whether she considered the post-service medical records noted in the prior remand directive documenting assessments and findings of pharyngitis with regional lymphadenopathy; epiglottic thickening/adult epiglottitis; infected thyroglossal duct cyst; recurring pharyngeal swelling; episodic throat swelling with epiglottitis; and throat culture results showing moderate growth of normal oropharyngeal flora. See, e.g., medical records dated in December 2005, March 2008, April 2008, and May 2009. Thus, the April 2021 VA examiner's opinion appears to have been based upon an inaccurate or incomplete factual premise. Nor did she provide any rationale for the conclusion that a disorder may be related to symptomatology or asbestos exposure in service. Therefore, the Board finds than additional VA medical opinion is needed. The Veteran was also afforded an additional VA examination in connection with his claim for service connection for diabetes mellitus in April 2021. The examiner opined that it is less likely than not that the disorder manifested in or is otherwise causally or etiologically related to his military service. In so doing, she stated that there is no evidence of the presence of diabetes mellitus during service and that the Veteran was already at a high risk for diabetes based on family history and race. The April 2021 VA examiner also opined that the Veteran's type II diabetes mellitus is less likely than not proximately due to or the result of his service-connected hypertension or major depressive disorder with anxiety disorder. She explained that hypertension and depression are not risk factors for the development of type II diabetes mellitus. The examiner further stated that there is no evidence of aggravation of the Veteran's diabetes mellitus beyond its natural progression. In this regard, she noted that he remained on the same medication and dosage. She acknowledged Dr. F.'s (initials used to protect privacy) November 2016 statement that the Veteran has hypertension complicating his diabetes mellitus, but noted that there was no explanation or evidence to support such a statement. She also observed that Dr. F. stated that the Veteran's depression was worsened by his chronic health problems, but did not specify the chronic health problems to which she was referring and that her statement suggests an adverse effect on depression and not vice versa. In addition, the April 2021 VA examiner noted that the Veteran was obese at the time of his discharge from service, specifically observing that he weighed 240 pounds in March 1988 with a body mass index (BMI) of 35. She found that his weight had fluctuated considerably since his military service, that he had been able to lose a substantial amount of weight at least twice despite his service-connected back disability and depressive disorder, and that he had reported exercising regularly at various times. The examiner stated that there is no evidence that the Veteran's lumbar spine disability and/or major depressive disorder caused or aggravated his obesity and commented that hypertension does not cause or aggravate obesity. Therefore, the examiner concluded that it is less likely than not that any of the Veteran's service-connected disabilities caused him to become obese and that it is less likely than not that his obesity was an intermediate step between his service-connected hypertension, lumbar spine disability, and/or major depressive disorder and his current type II diabetes mellitus. She reiterated that the Veteran had been documented as exercising and indicated that dietary modification is the cornerstone of weight loss therapy and has been shown to be superior to exercise as a mode of weight loss. She noted that effective weight loss can be achieved with dietary modification alone, as shown in multiple studies. She also observed that heritability is a major factor in obesity. The examiner further acknowledged that the Veteran reported binge eating during a January 2012 VA examination and that Dr. F. noted that same month that he comfort eats; however, she found such manifestations are not noted elsewhere in the medical record. In addition, the examiner stated that it is less likely than not that the Veteran would not have diabetes mellitus if he were not obese, as he has two other strong risk factors (a very strong family history of diabetes in first degree relatives and his race.) Nevertheless, the Board notes that, in a March 2012 statement, the Veteran reported binge eating since his military service. The April 2021 had relied upon a finding that he had only been documented as binge eating in January 2012. As such, it appears that her opinion may have been based on an inaccurate or incomplete factual premise. The examiner also did not address the Veteran's contention that his service-connected psychiatric disability is productive of anxiety or panic attacks that may cause or aggravate his diabetes mellitus. Therefore, the Board finds that an additional VA medical opinion is needed. Lastly, the Board finds that the issue of entitlement to a disorder characterized by trembling and tingling of the fingers is inextricably intertwined with the claim for service connection for type II diabetes mellitus. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a throat disorder, diabetes mellitus, and trembling and tingling of the fingers. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After any additional records are associated with the claims file, the AOJ should refer the Veteran's claims file to a VA examiner for a medical opinion as to the nature and etiology of any current throat disorder. A physical examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should identify any throat disorders that have been present during the appeal period or within close proximity thereto. In so doing, the examiner should consider the post-service medical records documenting assessments and findings of pharyngitis with regional lymphadenopathy; epiglottic thickening/adult epiglottitis; infected thyroglossal duct cyst; recurring pharyngeal swelling; episodic throat swelling with epiglottitis; and throat culture results showing moderate growth of normal oropharyngeal flora. See e.g., medical records dated December 2005, March 2008, April 2008, and May 2009. The examiner should specifically consider the March 2008 private treatment record, which noted the principal final diagnosis as infected thyroglossal duct cyst. He or she should also specifically address the private medical problem lists that suggest a thyroglossal duct cyst infection versus epiglottitis, noted in March 2008 and resolved in December 2011. For each diagnosis identified, the examiner should indicate whether the disorder is a congenital defect or disease. For VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. (As an example, VA considers sickle cell anemia as a congenital "disease" for VA purposes, whereas a refractive error is considered a congenital "defect.") The examiner is also advised that the requirement of a "current disability" is satisfied if a disorder is diagnosed at any time during the pendency of the appeal even though the disability may resolve prior to adjudication of the claim. (a) For each current throat disorder that is a congenital defect, the examiner should state whether there is any evidence of superimposed disease or injury during the Veteran's active duty service from May 1984 to April 1988. (b) For each current throat disorder that is a congenital disease, the examiner should state whether the disorder clearly and unmistakably preexisted the Veteran's active duty service. If so, the examiner should state whether there was an increase in the severity of the disorder during the Veteran's active duty service and whether any increase was due to the natural progression of the disorder. (c) If the examiner determines that the throat disorder is not a congenital defect and did not clearly and unmistakably preexist the Veteran's active duty service, he or she should state whether it is at least as likely as not that the disorder manifested in or is otherwise causally related to the Veteran's military service, including any symptomatology or asbestos exposure therein. (The term "clear and unmistakable" means that the evidence is undebatable.) (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing the foregoing development, the AOJ should refer the Veteran's claim file to a VA examiner for a medical opinion as to the etiology of the Veteran's current type II diabetes mellitus. A physical examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. (a) The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's type II diabetes mellitus manifested in or is otherwise causally or etiologically related to his military service, to include any symptomatology therein. (b) The examiner should also provide an opinion as to whether it is at least as likely as not that the Veteran's type II diabetes mellitus was either caused by or aggravated by his service-connected hypertension and/or major depressive disorder, to include any anxiety or panic attacks associated with the latter disorder. In rendering this opinion, the examiner should consider the November 2016 private medical statement from Dr. L.F. stating that the Veteran's hypertension complicates his diabetes mellitus. (c) The examiner should address whether the Veteran's obesity was an intermediate step between his service-connected hypertension, lumbar spine disability, and/or major depressive disorder and his current type II diabetes mellitus. In so do, he or she should state whether it is at least as likely as not that the Veteran's service-connected hypertension, lumbar spine disability, and/or major depressive disorder caused or aggravated his obesity. If so, the examiner should provide an opinion as to whether the obesity was a substantial factor in causing the Veteran's type II diabetes mellitus. The examiner should also provide an opinion as to whether the Veteran's diabetes mellitus would not have occurred or worsened but for the weight gain caused or aggravated by his service-connected disability. In rendering this opinion, the examiner should consider the January 2012 private medical opinion from Dr. L.F. that noted the Veteran's mental health and back problems contributed to his obesity. The examiner should also address the Veteran's contention that his service-connected major depressive disorder caused him to binge eat. See, e.g., January 2012 private medical record and March 2012 statement. It should be noted that, in a March 2012 statement, the Veteran reported that he had been binge eating since service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. The AOJ should ensure compliance with the prior directives and conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. DeVerter, 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.