Citation Nr: 21010179 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-03 991A DATE: February 24, 2021 REMANDED Entitlement to service connection for diabetes mellitus, type II, to include as secondary to a service-connected disease or injury, is remanded. Entitlement to service connection for cardiac arrhythmia and/or supraventricular tachycardia, to include as secondary to a service-connected disease or injury, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1977 to October 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2012 and April 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. These issues were denied by the Board in a June 2018 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2020 memorandum decision, the Court vacated the Board’s June 2018 decision and remanded the matters to the Board. In October 2020, the Board remanded the claims for further development. (In that decision, the Board also granted entitlement to an earlier effective date for the award of service connection for sleep apnea with bronchitis and granted entitlement to a certificate of eligibility for specially adapted housing. Those issues are no longer on appeal.) 1. Entitlement to service connection for diabetes mellitus, type II, is remanded. The Veteran has offered two theories of entitlement to service connection for diabetes mellitus, type II. First, he contends his diabetes mellitus, type II, was incurred in service, to include as a result of developing obesity in service. Alternatively, he argues his diabetes mellitus, type II, was caused or aggravated by his right knee disability; the Veteran argues he developed obesity as a result of physical limitations stemming from his right knee disability. In October 2020, the Board ordered the RO to provide the Veteran with a VA examination. The Board noted the Veteran’s service treatment records dated in June 1986 and July 1987 included complaints of headaches, blurry vision, and dizzy spells, as well as findings of abnormal fasting blood sugar. The Board directed a VA examiner to opine as to (a) whether the Veteran’s diabetes mellitus, type II, had its onset in service; and (b) whether his diabetes mellitus, type II, was caused or aggravated by his service-connected right knee disability. Regarding the latter contention, the Board directed the examiner to opine as to whether it was at least as likely as not that the Veteran’s service-connected right knee disability caused the Veteran to become obese, and, if so, whether it was at least as likely as not that obesity was a substantial factor in causing the Veteran’s diabetes mellitus, type II. The Board further noted that, under the law, obesity can qualify as an “intermediate step” between a service-connected disability and a current disorder. See Marcelino v. Shulkin, 29 Vet. App. 155 (2018). Since the Board’s remand was issued, the Court issued a decision in Walsh v. Wilkie, holding that obesity as an intermediate step in a causal chain for service connection can be established on either a causal or aggravation basis. 32 Vet. App. 300 (2020). In December 2020, a VA Compensation and Pension (C&P) examination was provided, along with opinions concluding, in sum, that the Veteran’s diabetes mellitus, type II, was not incurred in service and was also not caused by his service-connected right knee disability. The Veteran has since argued, essentially, that this examination was inadequate. On review, the Board agrees and finds that another examination is warranted. First, regarding the direct theory of entitlement, the VA examiner based her opinion on the lack of “objective evidence” of abnormal glucose readings in service; the examiner acknowledged the Board’s indications that such readings were in the record, but stated she could not find them and therefore the evidence did not support a nexus. The Board notes these records are available and must be reviewed by an examiner in order to ensure compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In addition, the examiner did not discuss the Veteran’s complaints of in-service symptoms, nor did the examiner even attempt to address the Veteran’s contentions that his development of obesity in service directly led to his diabetes mellitus, type II. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (holding that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). The Board also finds an updated opinion is needed to address whether the Veteran’s diabetes mellitus, type II, would not have occurred but for obesity caused or aggravated by his service-connected right knee disability. The examiner opined that the Veteran’s right knee disability “did not cause his obesity,” as obesity was instead caused “by the intake of more calories than are needed.” However, the examiner did not discuss the “substantial factor” question, as directed by the Board, nor whether the Veteran’s right knee disability aggravated his obesity, under the intermediate step theory. See Walsh, supra. Moreover, the examiner failed to meaningfully address the Veteran’s lay contentions that his right knee disability prevented him from exercising and thus caused or aggravated his obesity, which in turn caused or aggravated his diabetes mellitus, type II. (The examiner cited obesity as a risk factor for the development of diabetes.) For these reasons, the Board finds another examination must be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure the examination or opinion is adequate). 2. Entitlement to service connection for cardiac arrhythmia and/or supraventricular tachycardia is remanded. The Veteran contends his heart disorder was incurred in service. He has also generally argued his heart disorder was caused or aggravated by various service-connected disabilities. In October 2020, the Board ordered the RO to provide the Veteran with a VA examination. The Board noted the Veteran’s service treatment records included complaints of dizzy spells and headaches, and that the Veteran had argued his heart disorder began in service, specifically manifested by shortness of breath and chest pain. In subsequent statements submitted in December 2020 and January 2021, the Veteran reported experiencing heart palpitations in service, which he claimed may also have been a manifestation of heart problems. In December 2020, a VA C&P examination was provided, along with several opinions finding, in summary, that the Veteran’s heart disorder was not incurred in service and was also not caused by any of his service-connected disabilities. The Veteran has since argued, essentially, that this examination was inadequate. On review, the Board agrees and finds that another examination is warranted. First, regarding the direct theory of entitlement, the VA examiner based her opinion on the lack of any “documentation” of heart-related problems in service. No meaningful discussion was provided regarding the Veteran’s competent lay reports of in-service symptoms. Moreover, the examiner did not address the in-service symptoms specifically identified by the Board in its prior remand. This is impermissible and warrants a remand for an updated opinion. See Barr, supra at 311; Buchanan, supra. The Board also finds updated opinions are needed to address whether any of the Veteran’s service-connected disabilities aggravated his current heart disorder. See 38 C.F.R. § 3.310. Although the VA examiner authored myriad opinions stating there was no causal relationship between the Veteran’s heart disorder and his service-connected disabilities, no discussion of aggravation was provided. This must be done on remand. The matters are REMANDED for the following action: 1. The RO should contact the Veteran and inquire regarding his concerns pertaining to any missing records in VA’s possession. Then conduct all reasonable and necessary development to obtain any missing records and/or respond to the Veteran’s requests for records. 2. Schedule the Veteran for an examination with a different examiner to determine the nature and etiology of the Veteran’s diabetes mellitus, type II. (a) State whether the criteria for a diagnosis is met. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diabetes mellitus, type II, had its onset in, or is otherwise attributable to, his period of active service. Specifically discuss the Veteran’s reported in-service symptoms as well as the service treatment records documenting abnormal blood glucose levels. (c) Opine whether it is at least as likely as not that the Veteran’s service-connected right knee disability caused or aggravated his obesity. (d) Opine whether it is as least as likely as not that the Veteran’s obesity was a substantial factor in the development of his diabetes mellitus, type II. (e) Opine whether it is at least as likely as not that the Veteran’s diabetes mellitus, type II, would not have occurred but for obesity caused or aggravated by a service-connected disability, to include a right knee disability. (f) If it is determined that there is another likely etiology for the Veteran’s diabetes mellitus, type II, that should be stated. The examiner should set forth all examination findings, with a clear rationale for the conclusions reached. 3. Schedule the Veteran for an examination with a different examiner to determine the nature and etiology of the Veteran’s cardiac arrhythmia and/or supraventricular tachycardia. (a) State whether the criteria for any heart-related diagnosis is met. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s cardiac arrhythmia and/or supraventricular tachycardia had its onset in, or is otherwise attributable to, his period of active service. Specifically discuss the Veteran’s reported in-service symptoms (including those mentioned in December 2020 and January 2021 statements) as well as the service treatment records documenting potentially heart-related symptoms, to include dizzy spells and headaches. (c) Opine whether it is at least as likely as not that any of the Veteran’s service-connected disabilities caused or aggravated his cardiac arrhythmia and/or supraventricular tachycardia. (d) If it is determined that there is another likely etiology for the Veteran’s cardiac arrhythmia and/or supraventricular tachycardia, that should be stated. The examiner should set forth all examination findings, with a clear rationale for the conclusions reached. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ryan, 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.