Citation Nr: 21030719 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 09-15 255A DATE: May 19, 2021 REMANDED Entitlement to service connection for diabetes mellitus type II under 38 U.S.C. § 1151 is remanded. Entitlement to service connection for diabetes mellitus type II, to include as due to exposure to polychlorinated biphenyls (PCBs), and/or secondary to service-connected posttraumatic stress disorder, major depressive disorder with bruxism (PTSD), including medications for PTSD, and obesity is remanded. Entitlement to service connection for polyneuropathy of the lower extremities, to include as secondary to diabetes mellitus type II is remanded. Entitlement to service connection for a kidney disorder, to include diabetic nephropathy and protein in urine, to include as secondary to diabetes mellitus type II is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1968 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before a now retired Veterans Law Judge in October 2010. The Board subsequently remanded this matter in April 2011 and June 2016. The Veteran testified at another videoconference hearing before the undersigned Veterans Law Judge in October 2016. The Board subsequently remanded this matter in May 2017. In a November 2019 decision, the Board denied, in pertinent part, the above claims. The Veteran appealed the Board's November 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 Order, the Court vacated, in part, the above claims to the Board for further development. 1. Entitlement to service connection for diabetes mellitus type II under 38 U.S.C. § 1151 is remanded. In the November 2020 Order, the Court determined that the Board provided inadequate reasons or bases for finding that the Veteran was informed of a diagnosis of diabetes in April 2001, because it did not identify adequate reasons for rejecting his lay statements that he was not informed. The Court noted that on April 11, 2001, the Veteran was seen by a VA primary care provider. On April 12, 2001, the Veteran's blood sugar was 156. The examiner noted she contacted the Veteran about this, and the Veteran reported he was fasting at the time of the labs. The examiner noted that the Veteran likely had diabetes and that she informed him that he would need to come in for another fasting blood sugar test. The examiner reported the Veteran said he would come in the following week for the blood work. On April 18, 2001, the examiner noted the Veteran had a repeat fasting blood sugar test result of 150 and diagnosed diabetes because the Veteran had two fasting blood sugar tests greater than 126. The Court found that the note did not reference a conversation about this evidence with the Veteran. The Court noted that the Veteran had repeatedly stated that he was not informed in April 2001 that he had diabetes. The Court found that the Board did not specifically identify evidence that the Veteran was informed of his diabetes diagnosis in April 2011. The Court's findings are binding on the Board. The Board will assume for the sake of analysis that the Veteran was not told about his diagnosis on April 18, 2001. The Board notes that an opinion was provided in July 2018 for his claim. Specifically, in a July 2018 VA opinion, the examiner stated that medical evidence disclosed that the Veteran likely had diabetes mellitus on April 11, 2001. The examiner said that the Veteran was advised he had diabetes mellitus on April 12, 2001, by VA Staff Physician Dr. L.C. The examiner opined that it was not at least as likely as not that the Veteran's diabetes permanently increased in severity beyond the expected natural progress of the disease compared to if he had been treated during the period between diagnosis of diabetes mellitus and the time the Veteran was advised that a diagnosis of diabetes mellitus was assigned. The examiner reasoned that the Veteran was advised as soon as the lab studies were noted. He was advised of his diagnosis and need for lifestyle change on the very next day. The Board finds a new opinion is required for two reasons. First, assuming the Veteran's statements to be credible that he was not informed of his diagnosis, the July 2018 VA examiner's opinion is based on an inaccurate factual premise. The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, or based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Second, the Veteran has argued that his diabetes symptoms were more severe because of the VA's failure to timely inform him. The July 2018 examination report did not address the possibility that there was a delay in taking medication for treatment of diabetes between the date of testing in April 2001 and the date it is documented in VA treatment records that he was placed on medications effective August 26, 2002. Therefore, on remand, an additional VA opinion should be obtained with consideration of the Veteran's statements he was not advised of his diabetes diagnosis immediately, and using the appropriate standards for a 38 U.S.C. § 1151 claim. 2. Entitlement to service connection for diabetes mellitus type II, to include as due to exposure to polychlorinated biphenyls (PCBs), and/or secondary to service-connected posttraumatic stress disorder, major depressive disorder with bruxism (PTSD), including medications for PTSD, and obesity is remanded. In the November 2020 Order, the Court determined that the Board did not provide adequate reasons or bases with respect to whether secondary service connection for diabetes was warranted. The Court noted that the Veteran had been service connected for PTSD since 1998. In November 2004, the Veteran submitted an opinion from a private epidemiologist and researcher who worked with veterans for 25 years and found that veterans with PTSD were more likely to have insulin-dependent diabetes. In November 2010, the Veteran's treating VA physician reported the Veteran suffered from diabetes, among other conditions, and opined his PTSD impaired the proper management of his other diseases, including diabetes. The Court found that the Board did not address whether this evidence established a basis for service connection for the Veteran's diabetes as secondary to his PTSD. The Court's findings are binding on the Board. The Board notes that a VA opinion has not been provided for his secondary service connection claim to PTSD. Additionally, the August 2011 VA examiner, as noted below, raised the theory that obesity was the cause of the Veteran's diabetes. Further, the Veteran's representative argued in an August 2020 Appellate Brief that there was evidence indicating the Veteran's obesity was related to PTSD medication or excessive eating to self-medicate and lack of exercise due to PTSD symptoms. The Board also notes that there is no opinion that addresses obesity as an "intermediate step," pursuant to a January 2017 General Counsel opinion. Obesity is not a disease or disability for which service connection may be granted. Nonetheless, the Board finds that an opinion is needed to clarify whether obesity was an "intermediate step" between the Veteran's service-connected disability, PTSD, and the Veteran's diabetes. See VAOPGCPREC 1-2017. Specifically, to meet the criteria, the Veteran must demonstrate that a previously service-connected disability caused the Veteran to become obese; that obesity was a substantial factor in causing secondary disability; and the secondary disability would only have occurred but for the obesity. Therefore, on remand, a VA opinion is needed to address the Veteran's obesity as an "intermediate step." Finally, the Board notes that regarding the Veteran's argument that his diabetes is related to PCBs, a VA opinion was provided in August 2011. At this time, the examiner noted that the Veteran was assigned to a site now known to be a location designed by the EPA where clean-up of PCBs was required; specifically, the Veteran was assigned to the Philadelphia Naval Shipyards from 1968 to 1970. The examiner opined that it was at least as likely as not that the Veteran was exposed to PCBs in service. The examiner also opined that it was less likely as not that the Veteran incurred diabetes as a result of PCB exposure while in service. The examiner reasoned that a review of the literature was undertaken and there were very few reports showing an association between PCB exposure/PCB levels in the blood and development of diabetes. However, the examiner noted, that these reports were retrospective and contained very small sample sizes. Additionally, an association did not prove cause and effect. Finally, the examiner stated that in the most often cited report addressing this topic, an association between PCB exposure and diabetes was only found in women and not in men. Therefore, the examiner concluded that it was much more likely than his diabetes was due to and worsened by his significant obesity (his weight was over 250 pounds when his diabetes was diagnosed). At the October 2016 Board hearing, the Veteran reiterated that PCBs simulate the way dioxins act in the body, resulting in his current diabetes. As the years have passed since this opinion and there may be new literature on this association, and as the Board is already remanding the diabetes claim for secondary service connection theory, the examiner should also re-address this theory. Therefore, on remand, a VA opinion should be obtained to determine whether the Veteran's PTSD, including medications for PTSD, and obesity, caused or aggravated the Veteran's diabetes. 3. Entitlement to service connection for polyneuropathy of the lower extremities, to include as secondary to diabetes mellitus type II and entitlement to service connection for a kidney disorder, to include diabetic nephropathy and protein in urine, to include as secondary to diabetes mellitus type II are remanded. The Board finds that the issues of service connection for polyneuropathy and service connection for a kidney disorder are inextricably intertwined with the issue of diabetes mellitus type II. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, obtain a VA opinion from an appropriate examiner to clarify the inaccuracies stated in the July 2018 VA opinion. The claims file and a copy of this remand must be made available for review. Following a review of the pertinent evidence, the examiner must determine the following: Whether it is at least as likely as not (50 percent or greater probability) that the severity of the Veteran's diabetes increased as the direct result of VA carelessness, negligence, lack of proper skill, or erroneous judgment involving treatment attempted or afforded. The examiner should assume for the sake of analysis that the Veteran was not told about his confirmed diagnosis of diabetes from April 18, 2001, until the date he was placed on diabetes medications August 26, 2002. The examiner should also address whether a delay in treatment between April 2001 and August 2002 resulted in an increase in the severity of the Veteran's diabetes during the period of time since he filed his claim for 1151 benefits in December 18, 2002. In other words, did the delay in providing treatment until August 26, 2002, cause increased severity which extended until and beyond December 18, 2002. A clear rationale must be provided for all opinions expressed. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Also, obtain a VA opinion from an appropriate examiner to determine the etiology of the Veteran's diabetes. The claims file and a copy of this remand must be made available for review. Following a review of the pertinent evidence, the examiner must determine the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diabetes was (i) caused or (ii) aggravated beyond the normal course of the condition by the Veteran's exposure to PCBs in service. (b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diabetes was (i) caused or (ii) aggravated by the Veteran's service-connected PTSD. (c) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diabetes was (i) caused or (ii) aggravated by the Veteran's medications taken for his service-connected PTSD. (d) Also, regarding obesity as an "intermediary step," the examiner is asked to determine the following: i. Is it at least as likely as not (50 percent or greater probability) that the Veteran's service-connected condition(s), including PTSD, caused the Veteran to become obese? ii. If yes, was the obesity a substantial factor in causing or aggravating (worsening beyond its natural progression) the Veteran's diabetes? iii. If yes, would the diabetes mellitus not have occurred but for the obesity caused by the Veteran's service-connected condition(s), including PTSD? A clear rationale must be provided for all opinions expressed. The examiner must consider and discuss the evidence of record including the Veteran's lay statements that he was exposed to PCBs in service, and that his PTSD symptoms cause him to overeat and not exercise, and the November 2004 and November 2010 opinions linking diabetes to PTSD. The examiner must also consider and discuss the medical evidence presented by the Veteran linking diabetes to PCBs, as well as discuss the Veteran's symptoms of PTSD and his medications, and its relationship to his obesity and diabetes. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Thereafter, readjudicate the claims on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning this matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saudiee Brown 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.