Citation Nr: 21024289 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 07-01 459 DATE: April 22, 2021 REMANDED Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1972 to February 1974, and from January 1976 to April 1979. In January 2013, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) of the Department of Veteran’s Affairs (VA) Board of Veterans’ Appeals (Board). A transcript of the hearing is in the claims file. Most recently, in October 2020, the Board remanded this claim for additional development; the claims file has been returned to the Board for adjudication. 1. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected disabilities, is remanded. The Veteran asserts that his current diabetes mellitus, type II, is related to his service-connected disabilities. In an April 2010 statement, the Veteran’s spouse reported that when the Veteran attended a recent VA examination for his left shoulder disability, the examiner recommended that he file for service connection for diabetes mellitus, as such was connected to his limited physical condition. During his January 2013 Board hearing, the Veteran asserted that his diabetes mellitus was a result of physical limitations, as he put on weight which caused him to get diabetes mellitus. The Veteran’s service treatment records are silent for complaint, treatment, or diagnosis of diabetes mellitus, type II, and no party asserts otherwise. While service treatment records dated in February 1978 indicate that the Veteran was indeed placed on a weight management program, a March 1978 notation indicates that he was taken off such, as the physician determined that the Veteran was not obese, instead, he was very muscular and large-boned. Thus, as discussed in prior Board remands and herein, the inquiry at present is not whether the Veteran’s diabetes mellitus is related to service such that his weight in service, many years ago, requires consideration, but rather whether his service-connected disabilities, specifically, his cervical spine disability or disabilities, his left shoulder disability, his PTSD, his acquired psychiatric disorder, and his low back disability, have rendered him unable to participate in physical activity such that his weight increased and he developed diabetes mellitus. A VA examiner, in June 2016, opined that there was no objective evidence that the Veteran’s diabetes mellitus was aggravated or permanently worsened by service-connected disabilities, which at that time included hearing loss, tinnitus, and neck and left shoulder disabilities. The examiner reported that the Veteran’s left shoulder disability would not prohibit physical activity, that the Veteran had ongoing employment in construction and as a laborer until his 1987 post-service industrial neck injury, and that the Veteran’s service treatment records indicate that he was overweight upon enlistment in 1982. The examiner cited the Veteran’s family history of diabetes mellitus, his overweight status, and his physical inactivity as risk factors for his diabetes mellitus. The June 2016 VA examiner did not have the opportunity to consider the physical limitations placed on the Veteran due to his service-connected PTSD, and his service-connected acquired psychiatric disorder and low back disability, disabilities for which service-connected was granted in February 2018 and July 2018, respectively. Also, the examiner considered that the Veteran was overweight upon enlistment in 1982; as noted above, while the Veteran was indeed placed on a weight management program during service in February 1978, a March 1978 notation indicates that he was taken off such, as the physician determined that he was not obese, instead, he was very muscular and large-boned. In November 2018, a VA examiner, after examination of the Veteran, discussed that the development of type II diabetes mellitus is impacted by several factors, a combination of varying degrees of insulin resistance and relative insulin deficiency, and it is likely that both contribute to diabetes mellitus. The examiner reported that these clinical features can arise through genetic or environmental influences, making the cause of each individual’s diagnosis of diabetes mellitus multifactorial. The examiner reported that obesity, sedentary lifestyle, diet, and family history all play a role in the development of diabetes mellitus, and that the Veteran was overweight prior to enlistment into service and his weight continued to rise such that in 2002, when he started VA medical treatment, he was morbidly obese. The examiner concluded that the Veteran’s diabetes mellitus is multifactorial, considering increased weight, diet, family history, and sedentary lifestyle, and that she was unable to say with fifty-percent probability that the Veteran’s diabetes mellitus is due to his service-connected disabilities and their impact on his health. The examiner, in November 2018, considered the Veteran’s overweight status prior to and during service, an unnecessary consideration, and the examiner appeared not to have considered any limitations posed on the Veteran related to his service-connected cervical strain, left shoulder disability, PTSD, acquired psychiatric disorder, and his low back disability. In July 2019, a VA examiner offered an addendum opinion, that the Veteran’s diabetes mellitus is multifactorial, and genetics, obesity, and diet all contribute, and that there is no evidence that that supports that the Veteran’s diabetes mellitus is due to his service-connected disabilities. The examiner noted that throughout the record, there is evidence that the Veteran’s diet was poor and that when he would work on his diet, he would lose a substantial amount of weight. The examiner reported that there was no evidence that the Veteran was physically unable to move his neck, low back, or left shoulder, causing him to be sedentary and leading to diabetes mellitus. The examiner reported that the records indicated that he was able to walk and move, complete physical therapy, and perform home exercises. The examiner concluded that the development of diabetes mellitus is impacted by several factors, combining varying degrees of insulin resistance and relative insulin deficiency, and it is likely that both contribute to diabetes mellitus, and these clinical features can arise through genetic or environmental influences, making the Veteran’s case multifactorial. The examiner noted that the Veteran was obese at the time of his 1988 spinal surgery and she was unable to say with fifty-percent probability that the Veteran’s diabetes mellitus is due to his service-connected disabilities and their impact on health. In an August 2019 addendum, the examiner addressed the issue of whether the Veteran’s service-connected disabilities aggravated his diabetes mellitus. The examiner reported that the first-line treatment for diabetes mellitus is diet and activity, so lack of a healthy carb-monitored diet and sedentary lifestyle will contribute to progression of the disability. The examiner reported that when the Veteran was monitoring his diet, he would lose a substantial amount of weight and his records reveal that he was able to walk and move, complete physical therapy, and perform home exercises. The examiner concluded that there was no evidence that the Veteran’s service-connected disabilities prevented him from any movement or prevented him from eating an approved diet, and there was no evidence that his diabetes mellitus was aggravated by his service-connected disabilities. The examiner, at the time of the July 2019 and August 2019 addendum opinions, did not consider the Veteran’s service-connected PTSD and acquired psychiatric disorder. The Board, in its March 2020 remand, continued to seek an adequate etiological opinion and specifically directed the VA examiner to opine as to: (1) whether it is at least as likely as not that the Veteran’s service-connected disabilities, to include his cervical and lumbar spine disabilities, including associated radiculopathies, his left shoulder disability, and his PTSD and acquired psychiatric disorder, caused him to become obese or aggravated his obesity; if so (2) whether it is at least as likely as not that the obesity/aggravation of obesity as a result of the service-connected disability(ies) was a substantial factor in causing the Veteran’s diabetes mellitus, type II; and (3) whether the Veteran’s diabetes mellitus would not have occurred but for obesity caused/obesity aggravated by the service-connected disability(ies). The examiner was instructed to consider and discuss the Veteran’s ability to participate in diet and exercise and control his weight due to physical and psychological limitations from his service-connected disabilities and advised that consideration of the Veteran’s weight during service is not required. Despite the Board’s specific inquires, detailed above, the examiner, in the April 2020 addendum opinion, appears to have only been asked to opine as to whether the Veteran’s obesity is caused by service-connected disabilities, including cervical and lumbar spine disabilities and associated radiculopathies, a left shoulder disability, and PTSD and an acquired psychiatric disorder. The examiner opined that it was less likely than not that the Veteran’s obesity is caused by his enumerated service-connected disabilities, as there was no evidence that such caused obesity and the record indicated numerous times that the Veteran would lose weight when he would eat healthy and well-balanced food. She reported that the Veteran’s obesity was caused by consumption of large amounts of calories, and cited VA treatment records indicating that the Veteran did not recognize his body mass index (BMI) as obese and would not take care of his diet. She discussed that obesity, sedentary lifestyle, diet, and family history, all play a role in the development of diabetes mellitus, type II, and throughout the record, the Veteran reported that he would lose weight with diet control, and that with the Veteran’s family history of diabetes mellitus, type II, there is a high probability that he would have developed the condition, and his poor diet and consumption of large amounts of calories may have increased the process of developing such. Thus, the Board, in its October 2020 remand, found that the examiner did not respond in full to its specific inquiries. She did not discuss in any way the Veteran’s ability to participate in diet and exercise and control his weight due to physical and psychological limitations from his service-connected disabilities, only noting that he could lose weight through diet at times during the course of the appeal. The Board directed the VA Regional Office (RO), on remand, to attempt again to obtain an adequate etiological opinion. In a November 2020 addendum opinion, the VA examiner appears to have responded to the Board’s first two inquiries, whether the Veteran’s service-connected disabilities caused him to become obese and whether his service-connected disabilities aggravated his obesity. She opined that the Veteran’s obesity is less likely than not proximately due to or aggravated by his service-connected disabilities. She provided the same rationale to support such, that the Veteran had a family history of diabetes mellitus, that there was a combination of factors impacting the development of diabetes mellitus, that he was able to lose weight when he ate healthfully, that he self-reported his diet issues, that he did not recognize his weight status, and that it did not appear that he was unable to exercise. She discussed that the Veteran was overweight prior to enlistment into service and his weight continued to rise and that he was morbidly obese prior to his post-service spinal surgery, she was unable to opine as to whether his current mobility status has increased his obesity and risk of diabetes mellitus. Significantly, the examiner was advised to specifically consider and discuss the Veteran’s ability to participate in diet and exercise and control his weight over time due to physical and psychological limitations from his service-connected disabilities. She did not; instead it appears that she cited VA treatment record notations referring to the Veteran’s ability to lose weight when he ate healthfully, his failure to recognize his weight status, his self-reported diet issues, and his ability to complete physical therapy exercises. In essence, the November 2020 VA examiner provided the same opinion the Board found inadequate in its October 2020 remand. Each of the prior VA opinions have been rendered without consideration of the Veteran’s ability to ability to participate in diet and exercise and control his weight over time due to physical and psychological limitations from his service-connected disabilities. Recitation of notations in his VA treatment records of his ability to eat healthfully and lose weight or his ability to complete physical therapy exercises at home during periods of time does not adequately respond to the Board’s inquiry. The Board does not argue the medical history cited by the examiners in each of the opinions of record; the Board seeks a discussion of the Veteran’s physical and psychological limitations from his service-connected disabilities over time. Thus, the Board finds that another remand to direct the RO to attempt again to obtain an adequate etiological opinion, considering the specific inquiries detailed above, is required. See G.C. Prec. Op. 1-2017. The most recent VA treatment records available for Board review are dated in January 2021; on remand, the RO should obtain and associate with the claims file the Veteran’s updated VA treatment records. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2021 to the present. 2. Then, forward the Veteran’s claims file to the examiner who submitted the November 2020 opinion, or a suitable substitute. If any examiner determines that additional examination of the Veteran is required, so schedule the Veteran. The examiner must provide complete opinions as to the following inquiries: (a) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s service-connected disabilities, to include his cervical and lumbar spine disabilities, including associated radiculopathies, his left shoulder disability, and his PTSD and acquired psychiatric disorder, caused him to become obese? The examiner must specifically consider and discuss the Veteran’s ability to participate in diet and exercise and control his weight over time due to physical and psychological limitations from his service-connected disabilities. (b) Is it at least as likely as not that the Veteran’s service-connected disabilities, to include his cervical and lumbar spine disabilities, including associated radiculopathies, his left shoulder disability, and his PTSD and acquired psychiatric disorder, aggravated his obesity? The examiner must specifically consider and discuss the Veteran’s ability to participate in diet and exercise and control his weight over time due to physical and psychological limitations from his service-connected disabilities. (c) If so, is it at least as likely as not that the obesity/aggravation of obesity as a result of the Veteran’s service-connected disability(ies) was a substantial factor in causing his diabetes mellitus, type II; and (d) Would the Veteran’s diabetes mellitus, type II, not have occurred but for the obesity caused/obesity aggravated by his service-connected disability(ies)? NOTE: The examiner is specifically advised that consideration of the Veteran’s weight during service is not required, as there is an in-service March 1978 notation indicating that he was taken off of the weight management, and the Board seeks etiological opinions only on a secondary basis as related to the Veteran’s service-connected disabilities. (Continued on the next page) NOTE: Recitation of the Veteran’s VA treatment record notations referring to his ability to lose weight when he ate healthfully, his failure to recognize his weight status, his self-reported diet issues, and his ability to complete physical therapy exercises, during a period of time does not adequately respond to the Board’s inquires as the Board seeks an opinion that considers and discusses the Veteran’s ability to participate in diet and exercise and control his weight over time due to physical and psychological limitations from his service-connected disabilities. 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.