Citation Nr: 21075560 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-58 089 DATE: December 20, 2021 REMAND Entitlement to service connection for diabetes mellitus type II (diabetes) is remanded. Entitlement to service connection for a neurological disability of the right upper extremity is remanded. Entitlement to service connection for a neurological disability of the left upper extremity is remanded. Entitlement to service connection for a neurological disability of the right lower extremity is remanded. Entitlement to service connection for a neurological disability of the left lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1987 to October 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. A hearing was conducted at the Board in Washington, D.C. A transcript of this hearing is contained within the electronic claims file. In a February 2020 Decision, the VLJ who conducted the hearing reopened the claims of entitlement to service connection for the bilateral upper extremities and thereafter remanded all claims, instructing the agency of original jurisdiction (AOJ) to obtain examinations and medical opinions. Those examinations and opinions were obtained in October 2020 (discussed more fully below). The previous VLJ, however, no longer is employed by the Board. In March and April 2021, the Board sent to the Veteran a letter informing her that she had the option to have another hearing in front of a different VLJ or for the Board to proceed with adjudication. The letters indicated that failure to respond within thirty days would result in the latter. As of the date of this Decision, the Veteran has not replied. Thus, the Board may proceed with adjudication, satisfied that due process has been respected. See 38 U.S.C. § 7102(a); 38 C.F.R. § 20.604. If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, a VLJ shall remand the case to the agency of original jurisdiction (AOJ), specifying the action to be undertaken. 38 C.F.R. § 20.904(a). 1. Entitlement to service connection for diabetes is remanded. The Veteran claims that her diabetes is secondary to her service-connected heart disability, to include the medication taken therefor. Nov. 13, 2019, Hr'g Tr. (Tr.) at 3; Feb. 27, 2015, Notice of Disagreement (NOD). The October 2020 VA examination indicated that the Veteran currently does not have a diagnosis of diabetes. In reaching that conclusion, the examiner stated that he was "unable to find any of above positive criteria for a prior diagnosis of diabetes. Veteran states she was taken off of metformin in 2015. Current DC VA records do not list diabetes as an active diagnosis. Veteran is not on any medications for diabetes." The Board finds that remand is required for multiple reasons. First, this opinion overlooks pertinent medical records that do confirm a previous diagnosis of diabetes. Specifically, a May 2015 letter from Dr. L.K. indicates that the Veteran has been treated for diabetes since 2009 and that, between February 2013 and September 2014, she was prescribed 80 milligrams (mg) of Atorvastatin. Thus, as the record clearly shows a prior diagnosis of diabetes, the VA examiner's statement that he could find no evidence of any diagnosis of diabetes is based up on an inaccurate factual premise and can be afforded no probative value on appeal. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based on an inaccurate factual premise has no probative value."). Second, even if the Veteran did not have an active diagnosis of diabetes at the time of the October 2020 VA examination, the pertinent question for VA disability compensation purposes is whether the Veteran had a diagnosis at any point during the pendency of her appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim). The Veteran's claim was received in August 2014. According to Dr. L.K., the Veteran was taking medication for diabetes until September 2014. Thus, she clearly had a diagnosis of diabetes during the pendency of this appeal. Even if granting that this is close call, the Board still is bound to consider recent diagnoses prior to the Veteran filing a claim. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) ("[W]hen the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency."). Third, the Board's prior directives specifically asked the examiner to discuss Dr. L.K.'s May 2015 letter. Thus, VA failed to ensure substantial compliance with the past directives, so remand is required on that front as well. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for a neurological disability of the bilateral upper and lower extremities is remanded. The Veteran avers that the numbness and tingling she experiences in her extremities is caused by her service-connected heart disability or, in the alternative, her diabetes. See Tr. at 2. The Board, however, requested medical opinions on both a direct and secondary basis. The medical opinion provided for the Veteran's bilateral upper extremities suffers the same infirmities as the diabetes opinion. The examiner also found that no diagnosis of any extremity could be confirmed. He noted the Veteran's complaints of paresthesias in her four extremities since her heart surgery in 1999 and various complaints of pain/swelling during service. The latter, however, was discounted because there was no in-service diagnosis via diagnostic testing. The examiner also stated that he reviewed private records; he specifically cited a December 17, 2017, entry where the Veteran's neurologist did not provide any definitive diagnosis as to her extremities and a January 21, 2020, entry that disclosed EMG testing of the left upper extremity only, which showed normal results. The examiner further opined that paresthesias of the extremities is not an accepted complication of the Veteran's heart surgery. These opinions are inadequate. First, the examiner incorrectly notes that the Veteran was seen by a neurologist in December 2017 who did "not diagnose any pathology[,] however[,] did note a history of paresthesias of left hand and leg." Those records reveal that the "Assessment" specifically was paresthesias of the left upper and lower extremities. The examiner fails to discuss why paresthesias does not qualify as a diagnosis in and of itself. Furthermore, there does not appear to be any record of EMG testing for any other extremities other than the private one for the Veteran's left upper and lower extremities. As such, the Board finds that a new examination is warranted and that the pertinent testing should be performed. As it pertains to direct service connection, the examiner entirely premises his opinion on the fact that there was no confirmed diagnosis during service. He appropriately acknowledged the Veteran's complaints of pain and swelling but dismissed them because no diagnosis was rendered at that time. That, of course, is not a medical opinion on which the Board can rely. Cf. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (discussing that a medical examination solely premised on a lack of an in-service injury is inadequate). Regarding secondary service connection, the examiner blanketly states that paresthesias is not a complication of the type of heart surgery the Veteran underwent. There is no distinction between proximate causation or aggravation, and the examiner fails to include any of the hallmark factors that the Board must consider when evaluating whether a medical opinion is adequate. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019) (citations omitted). Lastly, because the Board herein is remanding the claim of entitlement to service connection for diabetes, the claims for the upper and lower extremities inextricably are intertwined, requiring remand. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Send to the Veteran the necessary forms to identify any outstanding private medical records for her alleged diabetes and peripheral neuropathy and afford her the opportunity to complete and submit those forms. VA also must send the Veteran forms necessary to authorize VA to obtain these records on her behalf. If the Veteran identifies any records, then make reasonable attempts to obtain them. Such attempts must be documented in the claims file. 3. If, after reasonable attempts have been made, any identified records cannot be obtained, then notify the Veteran as such in accordance with 38 C.F.R. § 3.159(e). 4. Obtain an addendum to the October 2020 VA diabetes opinion. The examiner shall answer the following: (a.) Does the Veteran have a diagnosis of diabetes? If not, the examiner adequately must explain why not, ensuring to discuss all pertinent medical records including, but not limited to, a statement from her private provider, Dr. L.K., that she has had a diagnosis of diabetes since 2009 and received medication from February 2013 to September 2014. If the examiner deems that a new examination is necessary, then schedule the Veteran for one. (b.) If the answer to (a.) is yes, then is it at least as likely as not (a fifty percent probability or greater) that the Veteran's diabetes occurred in, or is the result of, her period of active duty service, to include a March 1999 entry in her service medical records that she has diabetes, and her indication on a March 2003 Report of Medical History that she has high or low blood sugar? (c.) If the answer to (b.) is no, then is it at least as likely as not (a fifty percent probability or greater) that the Veteran's service-connected heart disability (i) proximately caused or (ii) aggravated beyond natural progression her diabetes, to include any medication that she takes for her heart? 5. Schedule the Veteran for a peripheral nerve examination for all four extremities and conduct all necessary tests, to include EMG testing. The examiner shall answer the following: (a.) Does the Veteran have a neurological disability in any of her four extremities? If not, the examiner adequately must explain why not, ensuring to discuss all pertinent medical records and lay statement from the Veteran regarding her alleged onset of pain and swelling. (b.) If the answer to (a.) is yes, then for each diagnosed disability in each extremity, is it at least as likely as not (a fifty percent probability or greater) that the Veteran's disabilities occurred in, or are the result of, her period of active duty service, to include her in-service complaints of pain and swelling in both the upper and lower extremities? (c.) If the answer to (b.) is no, then is it at least as likely as not (a fifty percent probability or greater) that the Veteran's service-connected heart disability (i) proximately caused or (ii) aggravated beyond natural progression any of the diagnosed disabilities in each extremity? (d.) If, and only if, the answer to (b.) or (c.) in paragraph 4 is yes, then is it at least as likely as not (a fifty percent probability or greater) that the Veteran's diabetes (i) proximately caused or (ii) aggravated beyond natural progression any of the diagnosed disabilities in each extremity? Note: The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner's opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 6. Conduct any other development deemed necessary and then readjudicate the Veteran's claims. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.