Citation Nr: 21076029 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 13-12 346 DATE: December 22, 2021 REMANDED Service connection for diabetes mellitus, type II, (DM) to include as secondary to service-connected non-malignant thyroid nodules with hypothyroidism, is remanded. Service connection for atrial fibrillation, to include as secondary to service-connected non-malignant thyroid nodules with hypothyroidism, is remanded. Service connection for arterial disorder, to include as secondary to service-connected non-malignant thyroid nodules with hypothyroidism and / or non-service-connected DM, is remanded. Service connection for hypertension, to include as secondary to service-connected non-malignant thyroid nodules with hypothyroidism and / or non-service-connected DM, is remanded. Service connection for hypogonadism, to include as secondary to service-connected non-malignant thyroid nodules with hypothyroidism and / or non-service-connected DM, is remanded. Service connection for erectile dysfunction, to include as due to non-service-connected hypogonadism and / or DM, is remanded. Service connection for osteoporosis, to include as due to non-service-connected hypogonadism, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1957 to January 1959. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO). By way of background, the Board previously denied these claims in a September 2018 decision as well as service connection for schwannoma and a thyroid disorder. Thereafter, the Veteran appealed to the U.S. Court of Appeals for Veterans Claims (CAVC or "the Court") and, in May 2019, the parties agreed to a Joint Motion for Remand (JMR) to vacate and remand the Board's prior denial for further development. The Court granted the JMR and the matter returned to the Board for further consideration consistent with the terms of the JMR. In December 2019 and May 2021, the Board remanded the claims for additional development consistent with the terms of the May 2019 JMR as well as to obtain VA examinations. As part of the May 2021 Board decision, service connection for schwannoma as well as a thyroid disorder was granted. Regarding the remanded claims, however, the Board finds the resulting VA examinations are not adequate; therefore, as will be outlined below, remand is again necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). While the Board regrets the additional delay in resolving the Veteran's pending claims, remand is necessary to ensure the Veteran is afforded any and all benefits to which he may be entitled. 1. Service connection for DM to include as secondary to service-connected non-malignant thyroid nodules with hypothyroidism, is remanded. 2. Service connection for atrial fibrillation, to include as secondary to service-connected non-malignant thyroid nodules with hypothyroidism and / or PTSD, is remanded. 3. Service connection for arterial disorder, to include as secondary to service-connected non-malignant thyroid nodules with hypothyroidism and / or PTSD and / or non-service-connected DM, is remanded. 4. Service connection for hypertension, to include as secondary to service-connected non-malignant thyroid nodules with hypothyroidism and / or PTSD and / or non-service-connected DM, is remanded. 5. Service connection for hypogonadism, to include as secondary to service-connected non-malignant thyroid nodules with hypothyroidism and / or non-service-connected DM, is remanded. The Veteran has contended he has DM, atrial fibrillation, arterial disorder, hypertension, and hypogonadism related to ionizing radiation exposure during service or secondary to service-connected non-malignant thyroid nodules with hypothyroidism and / or non-service-connected DM. The Board finds the evidence of record is insufficient to resolve these claims. At the outset the Board notes, the Veteran was afforded VA examinations regarding these claims in July 2021 in accordance with the May 2021 Board remand directives. At the time, of relevance, the Veteran was service-connected for non-malignant thyroid nodules, a thyroid disorder as due to ionizing radiation. Accordingly, the July 2021 VA examiner based his opinions, in-part, on the Veteran's then diagnosis of non-malignant thyroid nodules. In October 2021, however, service connection for non-malignant thyroid nodules with hypothyroidism was granted. This is significant as the July 2021 VA examiner reasoned that the Veteran's non-malignant thyroid nodules were hormonally inactive. This is contradicted by the Veteran's most recent October 2021 thyroid and parathyroid conditions disability benefits questionnaire and corresponding opinion. Indeed, in October 2021 a VA examiner opined that while the Veteran's thyroid nodules may have been benign and metabolically inactive at times, in light of his elevated TSH and the presence of nodules, an inference can be made that the nodule has some metabolic activity which is suppressing normal thyroid hormonal production by the thyroid or, less commonly, the peripheral activity of the produced thyroxine. Thus, remand is necessary for all of these claims to ensure consideration of the Veteran's newly service-connected hypothyroidism as well as the October 2021 VA examiner's opinion that an inference can be made that the nodule has some metabolic activity. The Board additionally finds the July 2021 VA examiner's opinions of aggravation regarding service connection for arterial disorder, DM, atrial fibrillation, and hypogonadism are not adequate as the examiner based his reasoning for these opinions on causation alone rather than aggravation and therefore did not provide a rationale in support of the opinion rendered. Thus, remand of these claims is necessary to obtain an opinion addressing aggravation specifically. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Also, the October 2021 VA examiner opined that morbid obesity is a sign of the Veteran's service-connected hypothyroidism. The record reflects that obesity is a risk factor for DM, atrial fibrillation, arterial disorder, hypertension, and hypogonadism. Indeed, the July 2021 VA examiner opined that the Veteran's DM could be related to age and obesity. The Board notes that obesity is not a disability for purposes of VA benefits; hence, it cannot be service connected on a direct basis. See Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). However, indirect secondary service connection can be granted with obesity acting as an "intermediate step." See VAOPGCPREC 1 2017 (Jan. 6, 2017). Specifically, benefits are warranted (1) if the service-connected disability caused the Veteran to become obese, (2) if obesity was a substantial factor in causing a subsequent disability, and (3) if the subsequent disability would not have occurred but for obesity. Id. As such, an opinion addressing obesity is necessary. Regarding only the Veteran's claims of service-connection for atrial fibrillation, arterial disorder, and hypertension, the Board finds the record reasonably raises an additional theory of entitlement to service connection as secondary to service-connected PTSD. More specifically, the Veteran has contended that he has PTSD that is linked to arterial fibrillation, arterial disorder, and hypertension. As the Board is required to address all theories of entitlement reasonably raised by the record, the Board finds a VA opinion addressing this additional theory of entitlement is necessary on remand. See Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008). Finally, regarding only service connection for hypogonadism, the Veteran has also contended this condition is related to conceded ionizing radiation exposure during service. In support thereof, the record contains a February 2016 private provider opinion that the Veteran's osteoporosis is related to in-service radiation exposure. Said opinion, however, is conclusory and lacks a rationale in support thereof. While the record contains a recent advisory opinion from the Executive Director of Compensation Service, the Board notes hypogonadism is not a radiogenic disease under 38 C.F.R. § 3.311. Further, the advisory opinion lists a date of diagnosis of 2006 while the Veteran's treatment records reference an earlier year of diagnosis. To date, an opinion addressing a direct service connection theory of entitlement has not been obtained. Thus, the Board finds remand is necessary to obtain a VA opinion addressing this theory of entitlement. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Based on the above, these claims are remanded for another VA examination. 6. Service connection for erectile dysfunction, to include as due to non-service-connected hypogonadism and / or DM, is remanded. 7. Service connection for osteoporosis, to include as due to non-service-connected hypogonadism, is remanded. As the Board previously decided in the May 2021 decision, the Veteran has current diagnoses of erectile dysfunction and osteoporosis, as noted in VA treatment records dated during the appeal period. The Veteran reported in a correspondence submitted with the June 2009 VA Form 21-526 that his hypogonadism resulted in osteoporosis and erectile dysfunction. In the December 2019 Board remand, there was also a request for additional evidentiary development for erectile dysfunction on a secondary basis to DM. Furthermore, a June 2015 VA treatment record documents that the Veteran's DM is complicated by erectile dysfunction. As found above, the Board is again remanding service connection for DM and hypogonadism for additional evidentiary development, decisions on which may impact the claims for erectile dysfunction and osteoporosis. As such, these issues are remanded as inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Regarding osteoporosis, the Veteran has contended this condition could also be related to conceded ionizing radiation exposure during service. In support thereof, the record contains a February 2016 private provider opinion that the Veteran's osteoporosis is related to in-service radiation exposure. Said opinion, however, is conclusory and lacks a rationale in support thereof. While the record contains a recent advisory opinion from the Executive Director of Compensation Service, the Board notes osteoporosis is not a radiogenic disease under 38 C.F.R. § 3.311. To date, the Veteran has not been afforded a VA examination for hypogonadism on a direct basis. Thus, the Board finds remand is necessary to obtain a VA examination. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, these claims are remanded. The matters are REMANDED for the following action: 1. Return the entire claims file and this remand to the July 2021 VA examiner, if available, or to another appropriate examiner for review. The examiner should render an opinion, including rationale, addressing the following: (a.) Whether it is at least as likely as not the Veteran's diabetes mellitus, atrial fibrillation, arterial disorder, hypertension, and / or hypogonadism are caused or aggravated by service-connected non-malignant thyroid nodules with hypothyroidism. - In so opining, special attention is directed to the October 2021 VA examination of record indicating that the Veteran's nodule "has some metabolic activity which is suppressing normal thyroid hormonal production by the thyroid or, less commonly, the peripheral activity of the produced thyroxine." (b.) Whether it is at least as likely as not the Veteran's non-malignant thyroid nodules with hypothyroidism caused the Veteran to become obese. i. If yes, was the obesity a substantial factor in causing or aggravating the Veteran's diabetes mellitus, atrial fibrillation, arterial disorder, hypertension, and / or hypogonadism? ii. If yes, would the diabetes mellitus, atrial fibrillation, arterial disorder, hypertension, and / or hypogonadism not have occurred but for the obesity caused by the Veteran's non-malignant thyroid nodules with hypothyroidism? In so opining, the examiner is directed to address and consider the October 2021 VA examiner's opinion that morbid obesity is a sign of the Veteran's service-connected hypothyroidism. The examiner is also directed to address and consider treatment records referencing obesity as a risk factor for diabetes mellitus, atrial fibrillation, arterial disorder, hypertension, and hypogonadism. Special attention is also directed to the July 2021 VA examiner's opinion that the Veteran's diabetes mellitus could be related to obesity. (c.) Whether it is at least as likely as not the Veteran's atrial fibrillation, arterial disorder, and / or hypertension are caused or aggravated by service-connected PTSD? (d.) Whether it is at least as likely as not the Veteran's osteoporosis and / or hypogonadism is related to service, to include ionizing radiation exposure. (e.) If, and only if, service connection for diabetes mellitus is found, the examiner should opine whether it is at least as likely as not the Veteran's arterial disorder, hypertension, hypogonadism, and / or erectile dysfunction, are caused or aggravated by diabetes mellitus. (f.) If, and only if, service connection for hypogonadism is found, the examiner should opine whether it is at least as likely as not the Veteran's osteoporosis and / or erectile dysfunction is caused or aggravated by hypogonadism. The VA examiner is again cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. After the above development, and any other development deemed necessary, readjudicate the claims. RACHEL E. JENSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.