Citation Nr: 21021702 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 14-32 390 DATE: April 13, 2021 ORDER Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected disability, is denied. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for the residuals of left leg deep vein thrombosis, claimed as result of an October 2001 aspiration of a left knee Baker’s cyst, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s diabetes mellitus, type II, began during active service, manifested to a compensable degree within the first post-service year, is otherwise related to an in-service injury or disease, or is proximately due to or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309(a), 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1974 to December 1987. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a September 2012 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2018, the Board issued a decision that (in pertinent part) denied entitlement to compensation under 38 U.S.C. § 1151 for complications resulting from removal of a Baker’s cyst, specifically, left leg deep vein thrombosis. The Veteran appealed that portion of the decision to the United States Court of Appeals for Veterans Claims (Court). In January 2019, the Court issued an order that (in pertinent part) vacated the June 2018 Board decision with respect to the denial of entitlement to compensation under U.S.C. 38 U.S.C. § 1151 and remanded the matter for readjudication consistent with the instructions outlined in a January 2019 Joint Motion for Partial Remand by the parties. The January 2019 Joint Motion and the Court Order make clear that no aspect of the June 2018 Board decision was disturbed beyond the denial of entitlement to compensation under 38 U.S.C. § 1151. In July 2019, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional evidentiary development. The claim of entitlement to service connection for diabetes mellitus, type II, was also previously before the Board. In the June 2018 Board decision, this diabetes issue was remanded to the AOJ for additional development of the evidence. Accordingly, this issue has not been addressed by the Joint Motion or Court Order. The issue was addressed again by the Board in July 2019, when the Board once again remanded the issue to the AOJ for additional development of the evidence. The prior Board actions in this case were issued by different Veterans Law Judges (VLJs), other than the undersigned. The case has now returned to the Board and been reassigned to the undersigned VLJ for further appellate review. 1. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected disability, is denied. The Veteran, in a January 2010 Statement in Support of Claim, contends that service connection for diabetes mellitus, type II, as secondary to service-connected disability (specified at that time as “knee”) is warranted. The Veteran alleged that “In the course of my treatment I was prescribed a medication that has caused me to have DMII as a side effect of the meds.” In an April 2010 statement, the Veteran asserted: “I was given steroids by injection to the right knee, oral by mouth. This raise[d] my blood sugar up to 464. This was trigger[ed] by these treatment[s], this is one of the side-[e]ffects of these steroids. Now I’m treat[ed] for being a Diabetic type 2.” The Veteran’s October 2012 notice of disagreement reiterated his assertion of entitlement to “service connection for diabetes (secondary to medications taken for s/c right knee).” The Veteran’s August 2014 Substantive Appeal again presented his assertion: “the medication prescribed for my service-connected right knee, specifically the numerous steroid injections which caused an elevation in my blood sugar and resulting diagnosis of DMII.” Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for direct-incurrence service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For certain chronic disorders, such as diabetes mellitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability of diabetes mellitus, type II, that began during service, manifested to a compensable degree within a year post-service, is at least as likely as not etiologically related to an in-service injury, event, or disease, or is proximately due to or the result of, or aggravated by, a service-connected disability. Direct incurrence basis Medical evidence of record, including an April 2019 VA examination report, confirms a diagnosis of diabetes mellitus, type II, initially found in March 2009. As such, the first Shedden element for direct-incurrence service connection for diabetes, a current disability, has been met. However, the preponderance of the evidence is against finding that the Veteran’s diabetes mellitus, type II, is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a), (d). The Veteran has not asserted that his diabetes mellitus, type II, had onset during service or is related to his service on a direct incurrence basis. Consistent with such, a review of the Veteran’s service treatment records reveals no diagnoses of diabetes mellitus, type II, or symptoms thereof. Moreover, the Veteran’s post-service medical records show he did not report diabetes or related complaints until many years after his separation from service. The 2009 date of diagnosis is many years after his separation from service, which weighs against demonstration of an in-service injury, event, or disease. The most probative evidence weighs against demonstration of any in-service diagnoses or complaints related to diabetes mellitus, type II, or demonstration of a relevant in-service injury, event, or disease. Thus, the second Shedden element of a claim for service connection on a direct incurrence basis is not met. Thus, a VA examination or a medical opinion addressing this claim on a direct incurrence basis is not warranted. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Additionally, as the second element for the claim for service connection for diabetes mellitus, type II, on a direct-incurrence basis is not met, the third Shedden element for service connection, competent evidence of a nexus between diabetes mellitus, type II, and an in-service injury, event, or disease, need not be further discussed. Presumptive service connection basis The Board has also considered whether the service connection is warranted on a presumptive basis. However, the evidence does not show and the Veteran does not assert that his diabetes mellitus manifested to a compensable degree within one year of separation or that he has had continuous symptoms since service. As noted above, the Veteran’s post-service medical records show he did not report diabetes or related complaints until many years after his separation from service. The 2009 date of diagnosis is many years after his separation from service, which weighs against service connection on a presumptive basis or continuity of symptomatology. Thus, presumptive service connection based on chronic disability is not warranted. See 38 C.F.R. §§ 3.307, 3.309. Secondary service connection basis The Board concludes that while, as discussed above, the Veteran has a diagnosis of diabetes mellitus, type II, the preponderance of the evidence is also against finding that it is proximately due to or the result of, or aggravated by, a service-connected disability, including right knee disabilities and asthma. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310 (a). The Veteran currently has a diagnosis of diabetes mellitus, type II, and an opinion was obtained as to the etiology of the disorder in May 2012. The examiner opined that diabetes mellitus was less likely than not caused by medication to treat his right knee disabilities. Specifically, the examiner noted treatment of the right knee with oxycodone, salsalate, Tylenol, and capsaicin cream. However, the examiner stated that “there is no plausible mechanism to explain how any of these medications could cause diabetes mellitus.” The Board’s June 2018 remand explained that, while the Board did not find any deficiencies in the rationale of the opinion provided, the Board found the opinion incomplete in two respects. First, the examiner addressed only the causation prong of secondary service connection. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (indicating that findings of not due to, not caused by, and not related to a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)). The Board found that a remand was necessary for the examiner to address the aggravation prong of secondary service connection. Second, for some reason, it appears that only part of the claims file was available for the May 2012 examiner’s review. Therefore, the Board found a remand was also necessary so that a medical opinion could be informed by review of the entire claims file. In June 2018, the Board remanded the Veteran’s service connection claim for diabetes mellitus, type II, to obtain an opinion addressing whether the claimed disability was either caused or aggravated by the medication prescribed for his service-connected right knee disability. The AOJ obtained the requested opinion in April 2019. While acknowledging steroids can induce diabetes under certain circumstances, the April 2019 VA examiner determined that “it is less likely than not that the veteran’s diabetes mellitus, type II was caused or aggravated by medication taken for his right knee.” The VA examiner explained the distinction between the diabetes-risk posed by long-term use of steroids versus the absence of significant risk from non-long-term steroid treatments; he noted that the Veteran was not prescribed a long-term course of steroid treatment. The April 2019 VA examiner noted the Veteran developed diabetes 28 years after he received a steroid injection in the knee, and explained that “Intra-articular steroid injection may raise blood sugar [for] 2-3 days and then blood sugar will come back to normal and this does not [lead] to long-term risk of diabetes.” The VA examiner explained that “if someone used oral steroids for more than 3 months, then there is an increased risk of developing diabetes shortly after starting steroid therapy, not 28 years after claiming being treated with some sort of steroids.” The VA examiner presented notes with references to medical literature to support his analysis of the matter. Subsequent to the Board’s June 2018 remand, the AOJ associated VA treatment records with the claims file that raised the issue of whether the claimed diabetes is related to steroids prescribed for the Veteran’s service-connected asthma. Specifically, a July 2018 VA treatment record includes a notation that suggests the Veteran was in the process of pursuing entitlement to service connection for diabetes a result of the steroids prescribed for his service-connected asthma, as opposed to his service-connected right knee disability. The plausibility of this theory of entitlement is supported by medical literature cited in the rationale of the April 2019 VA examiner’s opinion: the report lists “Asthma” amongst conditions that can be treated with steroids, while noting that steroids “can lead to diabetes.” However, the August 2019 VA examination report and medical opinion did not otherwise address the question of whether the Veteran’s prescribed treatments for asthma have cause or aggravated his case of diabetes in the context of his specific health history. The information presented in this regard provided medical information that was general in nature and/or inconclusive and did not address the specifics of the Veteran’s case; it lacks probative value in terms of determining whether the Veteran’s asthma treatments have caused or aggravated his case of diabetes. Thus, in July 2019, the Board found that an opinion in this regard was necessary to make an informed decision on the Veteran’s service connection claim for diabetes. In December 2019, the author of the July 2018 VA examination report / medical opinion prepared an addendum medical opinion concluding: “the veteran’s condition of type 2 diabetes, was not CAUSED or AGGR[A]VATED beyond its natural progression by steroids or other medication prescribed for his service-connected asthma.” The VA examiner’s analysis considered a detailed review of the claims-file including “carefully reviewing the records provided, and medication list from Richmond VAMC from 1992 till 2019.” The VA examiner noted that: [t]he veteran received steroids ‘prednisone’ ta[p]er dose on 7/7/1998 by orthopedics clinic for back pain (5 days), on 1/3/2012 prednisone ta[p]er dose for right foot pain by PCP (4 days), on 1/4/16, the veteran was diagnosed with pneumonia by an outside ER and the veteran filled the prescriptions at the VA (Prednisone and Levaquin) and on 1/12/2016 PCP added another 3 days of prednisone ta[p]er dose for bronchitis. The VA examiner then found: “The prednisone [h]as never been used to treat asthma, he was on inhalers for his asthma, and none of the inhalers he used including Symbicort may cause or aggravate his asthma.” The VA examiner further explains that “if someone used oral steroids continuously for more than 3 months, then there is an increased risk of developing diabetes shortly after starting steroid therapy, not many years after being treated with some sort of steroids.” The VA examiner noted that “the veteran develop[ed] diabetes in 2009, he had risk factors to develop diabetes (morbid obesity, BMI was running from 32 to 34 from 2002 to 2009) regardless of using steroids or not. Furthermore, the VA examiner discusses the details of the Veteran’s laboratory testing results to conclude that “the diabetes has been under good control regardless of using short courses of prednisone ta[p]er dose or not.” The VA examiner’s detailed analysis arrives at the supported conclusion that: “It is more likely the type 2 diabetes mellitus is related to the natural aging process and obesity and not to use [of] short courses of steroids…. [It] was not CAUSED or AGGR[A]VATED beyond its natural progression by steroids or other medication prescribed for his service-connected condition asthma.” The VA medical opinions discussed above, featuring the April 2019 examination report / opinion and its December addendum opinion, indicate that the Veteran’s diabetes mellitus, type II, is unlikely to be caused or aggravated by the medication prescribed for his service-connected disabilities as he contends. The opinions are prepared by a medical expert competent to address the issues. The opinions are adequately informed by the evidence of record, and they are adequately explained with detailed rationales. The Board finds them to be probative. There are no contrary opinions of record, and therefore the Board finds the April and December 2019 VA medical opinions to be persuasive. While the Veteran believes his diabetes mellitus, type II, is proximately due to, the result of, or aggravated beyond its natural progression by, his service-connected right knee disabilities or asthma, he has not been shown to be competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the pharmacological effects of medications. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board that the medical opinions of record, featuring the April and December 2019 VA medical opinions, carry more probative weight in this case. There is no competent evidence indicating that the Veteran’s diabetes mellitus, type II, is proximately due to or the result of, or aggravated by, a service-connected disability. Conclusion As discussed above, the most probative evidence of record does not demonstrate in-service incurrence or aggravation of diabetes mellitus, type II. Additionally, there has been no demonstration by competent evidence that the Veteran’s diabetes mellitus, type II, is proximately due to, or aggravated by, service-connected disability. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for diabetes mellitus, type II. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim for service connection for diabetes mellitus, type II, including as secondary to service-connected disability, the doctrine of resolution of doubt in the Veteran’s favor is not applicable, and service connection must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to compensation under 38 U.S.C. § 1151 for the residuals of left leg deep vein thrombosis, claimed as result of an October 2001 aspiration of a left knee Baker’s cyst, is remanded. A remand by the Board confers on the Veteran claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that a new remand is necessary in this case to complete the development previously directed in the Board’s July 2019 remand. In June 2018, the Board denied the Veteran’s claim of entitlement to compensation under 38 U.S.C. § 1151 for additional disability resulting from VA treatment. In the January 2019 Joint Motion, the parties agreed that the Board provided an inadequate statement of reasons and bases to support its determination. Specifically, the parties determined that the Board failed to consider whether VA obtained the Veteran’s informed consent prior to the October 2001 aspiration of a left knee Baker’s cyst that resulted in additional disability. In July 2019, the Board determined that “it does not appear the Agency of Original Jurisdiction (AOJ) has specifically requested informed consent documentation for the October 2001 procedure from the VA Medical Center in Richmond, Virginia. The Board finds this development is necessary to make a fully informed decision on the Veteran’s claim.” The Board directed that appropriate steps be taken to attempt to obtain the informed consent documentation. In the AOJ’s processing of the Board’s July 2019 remand directives, the AOJ issued a supplemental statement of the case (SSOC) in October 2020 that informed the Veteran: “We requested the [informed consent] records and were advised they are available electronically. We advised you of the unavailability of these records by letter dated February 6, 2020. On May 26, 2020, you spoke with a supervisor and advised that you never gave consent and you have no records.” The Board notes that the SSOC’s summary of events appears to indicate that the AOJ was told that the sought informed consent records “are available electronically,” but have not been obtained. Inspection of the documentation of record concerning the AOJ’s pursuit of the records reveals that a February 2020 printout documents some of this search, although the information is not presented in a format that is entirely clear to the Board. The printout shows, however, the following note: “12/27/19 per C.R. records are available electronically.” This does not appear to be clearly interpretable as a negative response regarding the availability of the sought informed consent documentation. The February 2020 printout further includes a note dated “1/21/2019,” but the Board suspects that this was intended to read “1/21/2020” given the chronological context and other indicators (the note first appears in a printout filed in the claims-file on January 21, 2020, and the note pertains to action conducted in the processing of the Board’s directives issued in the July 2019 remand). This note thus appears to concern action taken after the December 2019 indication that the sought “records are available electronically,” and the note indicates that the AOJ was “a first follow-up attempt” and “ask[ing] for the records to be submitted within 15 days.” It appears that this request was then issued on “Jan 27, 2020,” with context accompanying the request that explains that the Board is “requesting a copy of the informed consent documentation of the veteran[’]s October 2001 aspiration of a left knee Baker cyst,” and further noting that “After review of capri, we are unable to locate the informed consent. Please provide the informed consent or specify if one was not provided, negative response. Thank you.” The next pertinent development documented in the claims-file concerning this record search is a February 2020 letter sent by the AOJ to the Veteran, stating: “We have determined that these [sought informed consent] records cannot be located and therefore are unavailable for review…. Your claim file contains documentation of written and telephonic efforts we made to obtain these records.” The letter lists one action in the efforts to obtain the records: “Requested informed consent documentation … from the VA Medical Center in Richmond, Virginia.” A May 2020 “Report of General Information” documents that during telephonic discussion the Veteran told the AOJ “he never gave consent” to the October 2001 procedure in question. There is importance in this case to determining with clarity the availability or existence of pertinent informed consent documentation, especially in light of the fact that the Veteran is specifically asserting that he “never gave consent.” See Hatfield v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 386 (holding that if there is no documented informed consent, the McNair v. Shinseki, 25 Vet. App. 98 (2011), reasonable person test cannot be used to establish informed consent). The Board has considered that the words “negative response” at the end of the note documented on the February 2020 printout (and its January 2020 preliminary version) may have been interpreted by the AOJ as an indication that the VA medical facility provided a negative response to the request. However, the Board is unable to make a clear determination that any negative response has been received and documented from the VA medical facility in this case. The words “negative response” appear on the January 21, 2020, printout of notes in the record search, which is -prior- to the January 27, 2020, issuance of that record request according to the February 2020 printout. The Board finds that the most reasonable understanding of the documentation is that the author of the request included the words “negative response” in an effort to express that a negative response was sought if the records were found to be unavailable by the recipient of the request. The Board otherwise finds no clear indication that any negative response has been documented to resolve the search for the informed consent documentation, and the December 2019 note in the February 2020 printout suggests that some participant in the record search determined that the “records are available.” Accordingly, the Board finds that a new remand is necessary to ensure completion of the development required by the January 2019 Joint Motion and Court Order, and the Board’s July 2019 remand directives. The matters are REMANDED for the following action: Request informed consent documentation for the Veteran’s October 2001 aspiration of a left knee Baker’s cyst from the VA Medical Center in Richmond, Virginia. All steps taken to obtain these records must be documented in the claims file. If it is determined that it is reasonably certain the records do not exist or that further efforts to obtain them would be futile, this finding must be documented in the claims file by a formal finding of unavailability with notification provided to the Veteran in accordance with 38 C.F.R. § 3.159(e). Please note that documentation of the prior attempt to obtain these records included an indication in a February 2020 printout (and also in the October 2020 supplemental statement of the case) that the sought informed consent records “are available electronically,” and it is not currently clear to the Board that any contrary indication or negative response was received and documented to resolve the effort to obtain the records. If the records are available in a system like VistA, please print the records and upload them to VBMS as the Board does not have access to these systems (i.e., VistA). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Barone, 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.