Citation Nr: 21021295 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 10-22 693 DATE: April 12, 2021 ORDER Service connection for diabetes mellitus is granted. REMANDED Entitlement to service connection for left lumbar radiculopathy is remanded. Entitlement to service connection for right lumbar radiculopathy is remanded. Entitlement to service connection for benign paroxysmal positional vertigo (vertigo) is remanded. FINDING OF FACT The Veteran’s diabetes mellitus has been shown by the most probative evidence to be secondary to his service-connected hypertension. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, as secondary to service-connected hypertension, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1982 to January 1993. In October 2017 and January 2019, the Board remanded these issues to the Department of Veterans Affairs (VA) Regional Office (RO) in order for the RO to issue the Veteran a Statement of the Case (SOC); the RO accomplished such in October 2019 and the Veteran then perfected his appeal by his October 2019 Substantive Appeal. The Veteran testified before the undersigned Veterans Law Judge (VLJ) of the VA Board of Veterans’ Appeals (Board) at a November 2020 video-conference hearing. A hearing transcript has been associated with the claims file. Entitlement to service connection for diabetes mellitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In his March 2017 Notice of Disagreement (NOD), the Veteran asserted that his diabetes mellitus was secondary to his service-connected hypertension. In an April 2017 statement, he asserted that it was common knowledge that long-standing hypertension can cause diabetes mellitus due to the stricture of blood vessels. During his November 2020 Board hearing, the Veteran again asserted that his hypertension was due to his hypertension and/or hypertensive heart disease, and he was told such by his VA treatment provider, Dr. Tran. Dr. Tran, in an October 2015 Disability Benefits Questionnaire (DBQ), diagnosed the Veteran with diabetes mellitus and responded in the affirmative that such was at least as likely as not permanently aggravated by service-connected hypertension. The DBQ form did not direct the examiner to provide additional comment. In an August 2019 DBQ, the Veteran was diagnosed with diabetes mellitus, onset April 2015, treated with medication. The VA examiner opined that it was less likely as not that the Veteran’s diabetes mellitus was proximately due to or the result of his service-connected hypertension. The examiner discussed that diabetes mellitus and hypertension frequently occur together, and obesity, inflammation, stress, and insulin resistance are thought to be the common pathways, and that the Veteran has coexisting conditions of diabetes mellitus and hypertension and the medical literature did not support a causal relationship between the two conditions. The examiner reported that when the pathways of diabetes mellitus and hypertension interact, they influence each other, and that hypertensive heart disease is a risk factor for macrovascular and microvascular complications of diabetes mellitus, but it is not the cause of diabetes mellitus, and there are other factors that can lead to diabetes mellitus. The examiner opined that it was less likely than not that the Veteran’s diabetes mellitus is aggravated beyond its natural progression by his service-connected hypertension, and discussed further only the Veteran’s hypertension and hypertensive heart disease. In November 2020, Dr. Tran submitted a statement on behalf of the Veteran’s claim, indicating that such represented his rationale for his opinion that the Veteran’s diabetes mellitus is at least as likely as not permanently aggravated by his service-connected hypertension, the conclusion reported in his October 2015 DBQ. Dr. Tran reasoned that hypertension could affect the renal system which processes medications including diabetic mellitus medications, and therefore, such impacts the effectiveness of those medications, making it more complicated to treat the Veteran’s diabetes, as he is a patient with hypertension. Dr. Tran’s October 2015 DBQ and resultant November 2020 addendum, together, appear to have been based on a review of the pertinent records, there is no indication that he was not aware or did not have access to records available to the VA examiner that included evidence required for an adequate etiological opinion. He offered a reasonable medical basis for his conclusion. Is it significant that review of the Veteran’s VA treatment records confirms that Dr. Tran has treated the Veteran on numerous occasions, including for medication management, the issues discussed in his etiological opinion. Absent probative evidence to the contrary, the Board is not in a position to further question the opinion. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The VA examiner, in the August 2019 DBQ, offered a negative etiological opinion and also appears to have discussed common pathways, influences, and risk factors related to the relationship between the Veteran’s diabetes mellitus and service-connected hypertension, without specific comment as to the Veteran’s disability picture. The VA examiner did not respond in any appreciable way to the inquiry as to whether the Veteran’s diabetes mellitus is aggravated by his service-connected hypertension. The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The VA opinion is thus of little probative value. Thus, the most probative evidence supports the conclusion that the Veteran’s diabetes mellitus is secondary to his service-connected hypertension, and the Board concludes that service connection for the same is warranted. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49, 55-57. REASONS FOR REMAND 1. Entitlement to service connection for left lumbar radiculopathy and right lumbar radiculopathy is remanded. This issue is particularly complicated and requires additional medical comment. In July 2005, the RO granted service connection for peripheral vascular disease (PVD) of the right and left lower extremities, each rated separately, considering the relevant rating criteria contemplating claudication, the distance the Veteran is able to walk, and diminished peripheral pulses or the ankle/brachial index (ABI). In June 2012, the RO granted service connection for degenerative disc disease, L5-S1 level. In August 2017, a Decision Review Officer (DRO) of the RO granted service connection for the loss of use of the feet. By the Board decision herein, service connection is granted for diabetes mellitus. The Veteran’s VA and private treatment records include his complaints of bilateral lower extremity symptoms. In September 2005, during private treatment, he reported lower extremity pain and cramping in both calves when walking on an incline or climbing steps. In January 2009, during VA treatment, he reported chronic low back pain, leg pain, and a history of PVD; the treatment provider noted that, however, his pain radiated from his buttocks down his legs. The Veteran underwent VA examination of his lumbar spine in September 2011, the related DBQ indicates that no radiculopathy was found. During VA treatment in December 2014, the Veteran reported recent bilateral leg pain, especially on the left, with a numbing sensation in the left posterior thigh; he was diagnosed with chronic low back pain and lumbar radiculopathy. During VA treatment in November 2015, he presented at urgent care for a painful numb feeling over the right lateral hip radiating to the anterior and lateral thigh; his clinical presentation was consistent with lumbar radiculopathy. During private treatment in November 2015, he complained of sharp pain and a burning sensation that radiated down to the right foot; he was diagnosed with lumbar radiculopathy. The treatment provider noted VA magnetic resonance imaging (MRI) in 2014 and private MRI in 2010. In February 2017, his private treatment records included diagnoses of diabetes mellitus with diabetic PVD, PVD, and diabetes mellitus with diabetic neurological manifestation, and in May 2017, his diagnoses included peripheral neuropathy. A May 2016 DBQ for an examination of the Veteran’s lumbar spine indicates that no radiculopathy was found. The examiner opined that the Veteran’s lower extremity symptoms (neuralgias) have been evaluated by orthopedics and neurology who have completed MRI, ABI, and electromyography (EMG) and determined that such are not related this his back condition. The examiner discussed that the MRI showed level 1 degenerative disc disease and ABI and EMG were negative. The examiner asserted that despite the Veteran’s episodic visits to urgent care for “lumbar radiculopathy” such a diagnosis was made by providers who did not have access to his specialty evaluations and it remains this examiner’s opinion that the claimed condition, termed radiculopathy, corrected as neuralgia, is less likely than not proximately due to his back condition but continues to be associated with his PVD. The examiner also reported that the Veteran was obese and had diabetes mellitus and hypertension which were additional risk factors for neuralgias. However, in a May 2017 DBQ for an examination of the Veteran’s PVD, the examiner at that time opined that the Veteran’s symptoms involving the bilateral lower extremities are not consistent with claudication and not consistent with PVD, and such are likely due to neurogenic claudication related to lumbar degenerative joint disease/degenerative disc disease. On remand, the RO should obtain an adequate etiological opinion that addresses the conflicting medical evidence of record, as well as the recent grant of service connection for diabetes mellitus. The Veteran discussed at the November 2020 Board hearing that he was exempt from appearing for VA examinations and opinion should be based on the evidence of record. 2. Entitlement to service connection for vertigo is remanded. In his March 2017 NOD, the Veteran asserted that his vertigo was secondary to his service-connected migraine headaches. In his October 2019 Substantive Appeal, he asserted that his vertigo was secondary to his service-connected hypertensive heart disease, hypertension, migraine headaches, peripheral vascular disease, and obstructive sleep apnea; and also cited medical literature discussing a connection between migraine headaches and vertigo. During his November 2020 Board hearing, he asserted that his vertigo began in 2014 or 2015 with headaches, when he experienced spinning in the head and flashes of light. He reported that during emergency room treatment for the same, he was told that he had lost his equilibrium and was prescribed medication which he has continued and that he has had physical therapy for his inner ear imbalance. He asserted that his vertigo is a symptom of his headaches, that such happens right before he has a headache. The Veteran’s VA and private treatment records include instances of treatment for vertigo. VA treatment records dated in May 2014 indicate that he was seen the day prior for vertigo and given medication for the same, to take as needed; the treatment provider noted that he reported that he had been out of his hypertension medication for a few days, but that his blood pressure was normally 140-150/80. VA treatment records dated in April 2015 indicate that the Veteran had been seen for recurrent vertigo in the emergency room, that his systolic blood pressure had been 180, and that his blood pressure taken at home had been well controlled and he had been doing much better with vertigo. In the October 2015 DBQ, the Veteran was diagnosed with vertigo. To date, the Veteran has not been afforded a VA examination to determine the etiology of his vertigo; on remand, the RO should obtain an adequate etiological opinion. As noted above, the Veteran discussed at the November 2020 Board hearing that he was exempt from appearing for VA examinations and opinion should be based on the evidence of record. As to each of the claims remanded herein, the most recent VA treatment records available for Board review are dated in November 2019. His private treatment records from Kaiser Permanente, discussed during his November 2020 Board hearing, available for Board review, are dated from October 2015 to May 2017, save for single-page records dated in November 2003, August 2005, September 2005, and February 2009. On remand, the RO should obtain the Veteran’s updated VA treatment records and any identified outstanding relevant private treatment records from Kaiser Permanente. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2019 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any outstanding relevant private treatment records from Kaiser Permanente. Inform the Veteran that his private treatment records from Kaiser Permanente already associated with the claims file are dated from October 2015 to May 2017, save for single-page records dated in November 2003, August 2005, September 2005, and February 2009. Make two requests for any authorized records unless it is clear after the first request that a second request would be futile. 3. Forward the Veteran’s claims file to an appropriate examiner to obtain an adequate etiological opinion as to his claimed right lower left and right lumbar radiculopathy. The examiner must review the claims file and respond fully to the Board’s inquiries below. (a) The examiner must discuss the precise nature of the Veteran’s bilateral lower extremity symptoms, considering his complaints of pain, cramping, weakness, burning, numbness, and radiation, as well results of prior diagnostic testing and prior VA and private treatment diagnosing lumbar radiculopathy, diabetes mellitus with diabetic PVD, PVD, diabetes mellitus with diabetic neurological manifestation, and peripheral neuropathy. (b) Are the Veteran’s symptoms related to his bilateral lower extremities, beyond those attributed to his PVD, at least as likely as not (at least 50 percent probability) proximately due to his service-connected degenerative disc disease, L5-S1 level, or diabetes mellitus. (c) Are the Veteran’s symptoms related to his bilateral lower extremities, beyond those attributed to his PVD at least as likely as not (at least 50 percent probability) aggravated, i.e., worsened beyond its natural progression, by his service-connected degenerative disc disease, L5-S1 level, or diabetes mellitus? 4. Forward the Veteran’s claims file to an appropriate examiner to obtain an adequate etiological opinion as to his vertigo. The examiner must review the claims file and respond fully to the Board’s inquiries below. (a) Is the Veteran’s vertigo at least as likely as not (at least 50 percent probability) proximately due to his service-connected hypertensive heart disease, hypertension, migraine headaches, peripheral vascular disease, and obstructive sleep apnea. (b) Is the Veteran’s vertigo at least as likely as not (at least 50 percent probability) aggravated, i.e., worsened beyond its natural progression, by his service-connected hypertensive heart disease, hypertension, migraine headaches, peripheral vascular disease, and obstructive sleep apnea? In this regard, the examiner must specifically consider and address: (1) any medication used to the treat the Veteran’s service-connected hypertensive heart disease, hypertension, migraine headaches, peripheral vascular disease, and obstructive sleep apnea, and any resultant implications related to vertigo; (2) the Veteran’s lay statements that his vertigo is a symptom of his headaches, that such happens right before he has a headache; and (3) the VA treatment records demonstrating treatment for vertigo during which his blood pressure management and medication to treat hypertension was discussed. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.