Citation Nr: 21072226 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 15-43 194 DATE: December 2, 2021 REMANDED Entitlement to an evaluation in excess of 20 percent for type II diabetes mellitus (DM) with diabetic nephropathy is remanded. REASONS FOR REMAND The Veteran had active-duty service from June 1967 to November 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal of an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020 this matter was last before the Board, at which time it was remanded for further development. The Veteran has as a matter of law, the right to compliance with remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Strict compliance with remand directives is not necessary, however substantial compliance is required. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Though the Veteran was provided with additional VA examinations, the examinations are inadequate. As such, the prior remand directives have not been substantially complied with. At issue is the severity of the Veteran's service-connected DM, of which nephropathy, i.e., renal dysfunction, and hypertension are complications that, if not used in the assignment of a 100 percent schedular evaluation, can be evaluated separately. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). The Agency of Original Jurisdiction (AOJ) has evaluated nephropathy as a non-compensable complication. See April 2020 rating decision. A September 2020 VA nephrology attending note documents "a chloride resistant metabolic alkalosis in the setting of hypertension." Primary aldosteronism (a condition of the adrenal glands) was suspected and testing was ordered. In January 2021, the Veteran was afforded a VA kidney conditions examination. The VA examiner, F.B., concluded that there was no renal dysfunction. A March 2021 nephrology attending note relates to follow-up regarding the suspected primary aldosteronism. Primary aldosteronism was assessed and the Veteran was treated with medication. In March 2021, F.B. conducted another VA examination regarding the severity of the Veteran's DM. On this occasion, F.B. identified nephropathy or renal dysfunction as complication of DM. F.B. further concluded that while hypertension was not caused by the DM, it was as likely as not aggravated by DM. In June 2021, a separate VA examiner (A.D.) entered an opinion regarding DM nephropathy. A.D. stated that the Veteran had diabetic nephropathy as early as 2014 based on the presence of microalbuminuria. Later in June 2021, F.B. also entered an opinion into the record regarding hypertension as a secondary condition by way of aggravation. F.B. could not establish a baseline for the hypertension pre-aggravation, but rather suggested, that the increase in the severity of hypertension was due to noncompliance with treatment. F.B. also stated that the hypertension was not "permanently aggravated" by the DM. In July 2021, F.B. entered yet another opinion. In this case, F.B. stated that the hypertension was, in fact, aggravated by the DM due to uncontrolled blood pressure readings following the assessment of DM in 2009. In August 2021, F.B. entered their last opinion. This time, F.B. concluded that hypertension was, in fact, not aggravated by the DM. F.B. reasoned so because the Veteran's blood pressure readings were consistent before and after the assessment of DM. Once VA provides an examination, it must be adequate, or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009). The opinions regarding nephrology and hypertension are insufficient to decide the claims. F.B. has offered far too many contradictory opinions for the Board to give their opinions any credence. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (it is the responsibility of the Board to assess the probative weight of the evidence). On the other hand, A.D., the June 2021 VA examiner related that the Veteran's diabetic nephropathy had its onset in 2014 based on the presence of microalbuminuria. Along these lines, while albuminuria alone is not nephritis, the nephrosclerotic type, originating in hypertension or arteriosclerosis, develops slowly with minimal laboratory findings and is associated with natural progress. See 38 C.F.R. § 4.115. F.B.'s opinions regarding hypertension are of no value. Further, no opinion adequately addresses the findings of the VA nephrology notes relating to hypertension in the setting of primary aldosteronism or the presence of microalbuminuria since 2014. Accordingly, the examination reports are returned. 38 C.F.R. § 4.2. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to address the severity of his type II diabetes mellitus (DM) with diabetic nephropathy. Regarding complications of DM, the examiner is asked to address the following, as well: a) Is it at least as likely as not (about a 50 percent or greater probability) that the Veteran's service-connected DM caused hypertension? b) If the examiner concludes that is NOT at least as likely as not that the service-connected DM caused hypertension, is it at least as likely as not that the service-connected DM caused or aggravated (either permanently or temporarily) hypertension? If the examiner finds aggravation, the examiner is asked to identify the baseline of hypertension prior to the aggravation. In offering this opinion, the examiner's attention is directed to the presence of albuminuria since 2014, as well as the assessment of primary aldosteronism in the setting of hypertension in March 2021. Any tests deemed necessary should be conducted and all clinical findings should be reported in detail. All opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 2. After the above development and any other development deemed necessary is completed, readjudicate the claim. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph R. Keselyak, 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.