Citation Nr: 21023825 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-14 195A DATE: April 21, 2021 REMANDED Entitlement to service connection for diabetes mellitus, Type II, is remanded. Entitlement to service connection for a psychiatric disorder is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, has confirmed active duty service from March 1974 to June 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of a Department of Veterans’ Affairs (VA) Regional Office (RO). In June 2018, the Board remanded the claims for further development, to include providing the Veteran with VA examinations to determine the nature and etiology of her diabetes mellitus, Type II, and psychiatric disability. Review of the claims file reveals that the requested development was completed and the examination reports and associated medical opinions were associated with the electronic claims file. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Nevertheless, upon review, the Board finds that the record is incomplete, necessitating remand for additional development to ensure that there is a complete record upon which to decide the Veteran’s claims so that she is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38C.F.R. § 3.159(c) (2020). Service Personnel Records VA has a duty to assist a claimant in the development of her claim, including assisting in the procurement of service personnel records. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2020). Here, the only service personnel record associated with the electronic claims file is the DD Form 214 reflecting service from March 1974 to June 1975 and her military occupational specialty (MOS) of Air Traffic Control Specialist. However, the Veteran has consistently suggested that she had a subsequent period of service after President Reagan fired civilian Federal Aviation Administration (FAA) controllers during a strike in 1981. See, e.g., Veteran’s statement received July 2013. The Veteran’s assertion as to service is not entirely clear since her appeal to the Board reflects that she “went back in to serve and train with the FAA.” See Appeal to Board of Veterans’ Appeals received May 12, 2015. Nevertheless, the Veteran’s statements, particularly the phrase “went back in” suggest a second period of service after her separation from the Army in 1975 that may include active duty for training (ACDUTRA) and/or inactive duty for training (INACDUTRA). The record does not reflect that VA, having received the Veteran’s statements asserting an additional period of service, took steps to verify the claimed additional period of service. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (finding that VA’s duty to assist specifically includes requesting information from other Federal departments). Accordingly, on remand, VA should take steps to ensure that outstanding service records, if any, are associated with the electronic claims file. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA Medical Opinions The Board finds deficiencies in the July 2019 VA medical opinions addressing the etiology of the Veteran’s diabetes mellitus and her depressive disorder. The Veteran claims her diabetes mellitus, Type II developed, in part, from exposure to hepatitis B and hepatitis C during service. While a July 2019 VA opinion addresses whether hepatitis C caused the Veteran’s diabetes, hepatitis B was not discussed. Furthermore, the examiner did not discuss an article submitted by the Veteran suggesting that psychological stress could contribute to the development of diabetes mellitus, Type II. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate). Moreover, as it appears that the record may not contain all of the Veteran’s service personnel records, the unfavorable July 2019 opinion, particularly the section addressing whether the disease manifested within one year of the Veteran’s separation from service, may be based upon an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise has no probative value). A July 2019 VA opinion addressing the etiology of the Veteran’s psychiatric disorder acknowledged the Veteran’s claimed childhood abuse, but did not address whether the Veteran had a preexisting psychiatric disorder that clearly and unmistakably preexisted service, and if so, whether it clearly and unmistakably was not aggravated by service. See 38 C.F.R. § 3.306; Cotant v. Principi, 17 Vet. App. 116, 130-131 (2003) (clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service). Additionally, the rationale for the examiner’s opinion suggests that the Veteran’s currently diagnosed depressive disorder onset during the claimed, yet unverified, period of service in the 1980s. As such, the unfavorable opinion may be based upon an inaccurate factual premise. See Reonal, supra. Lastly, the record reflects that recent VA mail sent to the Veteran was returned by the postal service as undeliverable due to insufficient address. A claimant has a responsibility to keep VA informed of changes of address. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Nevertheless, considering that the Veteran’s participation in further development may be beneficial to her claims, on remand, the Veteran’s representative should be contacted to verify the Veteran’s current address. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Take reasonable measures to attempt to verify the Veteran’s current address, to include contacting the Veteran’s representative, The American Legion, for this purpose. Allow a reasonable time for reply. 3. After verification of the Veteran’s address, contact the Veteran and request that she provide specific dates of service, unit assignments (to include the company), and the complete time period for the claimed period of service in the 1980s. Additionally, invite her to submit copies of all outstanding service personnel records she may have in her possession, if any. 4. Regardless the reply from the Veteran to the above, contact the relevant agencies and record repositories to verify, and request records of, all periods of active duty, active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA), to include assignment to Federal Aviation Administration air traffic control facilities during and after the Professional Air Traffic Controllers Organization strike in 1981. Retirement Points sheets are not adequate for this purpose. All attempts to secure this evidence must be documented in the electronic claims file. If it is determined that no additional records are available, a memorandum reflecting that such development was undertaken and a finding of unavailability of the records should be associated with the Veteran’s electronic claims file and provided to the Veteran and her representative with notice pursuant to 38 C.F.R. § 3.159(e). 5. Then, obtain an addendum opinion from the same examiner who authored the July 2019 VA opinion as to the nature and etiology of the Veteran’s currently diagnosed diabetes mellitus, Type II. The claims file, and a copy of this Remand, must be made available to, and be reviewed by, the examiner. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the currently diagnosed diabetes mellitus, Type II, had its onset during service, manifested within one year after service separation, or is otherwise etiologically related to service, to include the Veteran’s claimed in-service exposure to hepatitis B. **In doing so, consider the Veteran’s lay statements of record describing stressful in-service experiences and articles submitted by the Veteran, to include the article suggesting that psychological stress could contribute to the development of diabetes mellitus, Type II (see VBMS entry with document type “Correspondence,” receipt date 05/07/2015). *Note that the Board’s reference to evidence in this context should not be construed as a determination of its credibility. *The need for another examination(s) is left to the discretion of the medical professional offering the addendum opinion. Should an examination(s) be necessary, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. The examiner must provide a complete rationale for all opinions proffered. 6. Obtain an addendum opinion from the same examiner who authored the July 2019 VA opinion addressing the etiology of the Veteran’s psychiatric disorders, if available, as to the etiology of the Veteran’s currently diagnosed unspecified depressive disorder. The claims file, and a copy of this Remand, must be made available to, and be reviewed by, the examiner. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Whether an acquired psychiatric disorder CLEARLY and UNMISTAKABLY preexisted service, and, if so; (b) Whether such preexisting acquired psychiatric disorder CLEARLY and UNMISTAKABLY was NOT aggravated by service. *The answer to EACH question, as determined by the examiner, MUST include the phrase “clearly and unmistakably” to satisfy the requisite standard of proof. See Cotant v. Principi, 17 Vet. App. 116, 132 (the standard of proof for rebutting the presumption of soundness is evidence that is “clear and unmistakable”). (c) If the answer to (a) or (b) above is in the negative, provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the current unspecified depressive disorder had its onset during service or is otherwise etiologically related to it. *The need for another examination(s) is left to the discretion of the medical professional offering the addendum opinion. Should an examination(s) be necessary, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. The examiner must provide a complete rationale for all opinions proffered. 7. Thereafter, ensure that the examiners have substantially responded to the questions posed by the Board, and if not, take corrective action. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell 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.