Citation Nr: 21006334 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 13-25 243 DATE: February 3, 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. Entitlement to service connection for a right lower extremity neurological disorder 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, and August 2019. The case has since been returned to the Board for appellate review. Although the Board regrets the additional delay, a remand is necessary to obtain additional medical opinions that comply with the Board’s prior remand directives. Regarding the claim for service connection for a throat disorder, the Veteran was afforded a VA examination in November 2019. The examiner indicated that the Veteran did not have a current or past diagnosis of a throat disorder. In so finding, the examiner stated that a January 26, 2012, private medical history indicated that the Veteran’s thyroglossal duct problems resolved in 2008. However, on review, the private medical history indicates that the Veteran’s thyroglossal duct cyst, infection versus epiglottitis, resolved in December 2011. As such, it appears that the opinion was based on an inaccurate or incomplete factual premise. Therefore, a remand is required to obtain an additional VA medical opinion. Regarding the claim for service connection for type II diabetes mellitus, the Veteran was afforded a VA examination in November 2019. The examiner opined that the Veteran’s back pain, hypertension, and depression did not cause his obesity. In so finding, the examiner stated that the Veteran’s obesity was due to his inability to stop consuming food. The Board notes that, in a January 2012 private medical record, the Veteran reported that his depression caused binge eating. However, the examiner did not address that contention. Moreover, a remand is necessary to obtain a medical opinion as to whether the Veteran’s service-connected back disability, hypertension, and/or major depressive disorder aggravated his obesity which in turn aggravated his diabetes mellitus. The November 2019 examiner further opined that it was less likely than not that the Veteran’s diabetes mellitus was aggravated beyond its natural progression by his service-connected hypertension and major depressive disorder. In rendering his opinions, the examiner stated that “being sad” does not elevate glucose to levels that cause damage to the body. However, the examiner did not adequately address whether the Veteran’s major depressive disorder aggravated his diabetes mellitus without causing damage to the body. Moreover, the examiner provided no supporting rationale for his conclusion that there is no concrete evidence that the Veteran’s hypertension aggravates his diabetes mellitus. Therefore, a remand is necessary to obtain an additional VA medical opinion. Regarding the right lower extremity neurological disorder, the Veteran was afforded a VA examination in November 2019. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He further opined that the claimed condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition. In so finding, he stated that there was no pathology to render opinions. However, the examiner also opined that the Veteran’s neuropathy of the right leg was not aggravated by his service-connected back disorder. The Board notes that the November 2019 examiner questioned the neurological findings contained in a February 2019 VA examination report. However, the examiner did not reconcile his conclusion that the Veteran did not have a diagnosis of a peripheral nerve condition or peripheral neuropathy with the April 2017 VA examination report. In this regard, the April 2017 VA examination report noted neurological abnormalities, mild incomplete paralysis of the right sciatic nerve, and a diagnosis of diabetic peripheral neuropathy of the lower extremities. There is also no indication that the examiner considered the November 2015 private medical record that noted an assessment of sciatica. Therefore, a remand is necessary. Lastly, the Board finds that the issues of entitlement to a right lower extremity neurological disorder and a disorder characterized by trembling and tingling of the fingers are 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 the disorders on appeal. 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 completing the foregoing development, the AOJ should refer the Veteran’s claims file to a different suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any 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. 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. (a) 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. 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. (b) 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 doing, 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 diabetes mellitus. He or she 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. He or she 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 in support of claim. (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 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 any additional records are associated with the claims file, the AOJ should refer the Veteran’s claims file to a different suitably qualified VA examiner for a clarifying 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 note 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 in December 2005, March 2008, April 2008, and May 2009. He or she should specifically address the private medical problem lists that suggest a thyroglossal duct cyst, infection versus epiglottitis, was 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. To assist the examiner, 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 congenital “disease” for VA purposes, whereas 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 or etiologically 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 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. After any additional records are associated with the claims file, the AOJ should refer the Veteran’s claims file to a different suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any neurological disorder involving the right lower extremity that may be present. 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. He or she should specifically consider the November 2015 private medical report from Dr. D.H. 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 neurological disorder involving the right lower extremity that has been present during the appeal period or in close proximity thereto, to include whether the Veteran has any sciatic nerve damage. If any previously diagnosed right lower extremity neurological disorders are not found, the examiner should address whether they were misdiagnosed or have resolved. For each disorder identified, the examiner should state whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to the Veteran’s military service, to include any lifting, injury, or symptomatology therein. The examiner should also provide an opinion as to whether it is at least as likely as not that the disorder was either caused by or aggravated by the Veteran’s service-connected lumbar spine disability. (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 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. 5. The AOJ should review the medical opinions to ensure compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Wulff, 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.