Citation Nr: 21031137 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 13-89 494A DATE: May 20, 2021 REMANDED Entitlement to service connection for diabetes mellitus type II, is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a heart disorder, to include as secondary to diabetes mellitus, is remanded. Entitlement to service connection for an eye disorder, to include as secondary to a heart disorder and/or diabetes mellitus, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1958 to April 1960, with additional periods of service in the Army National Guard. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Muskogee, Oklahoma. Jurisdiction of this appeal is currently with the RO in Houston, Texas. This case was most recently before the Board in October 2019, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. 1. Service Connection Diabetes Mellitus Type II and a Right Knee Disorder The Veteran seeks entitlement to service connection for diabetes mellitus type II and a right knee disorder. As noted above, the claims were most recently before the Board in October 2019, when the claims were remanded to the AOJ for further development. Specifically, the October 2019 Board remand directed the AOJ to obtain new VA opinions to determine the nature and etiology of his claimed diabetes mellitus type II and a right knee disorder. The October 2019 Board remand directed the AOJ to obtain VA opinions to determine whether the Veteran's diabetes mellitus type II clearly and unmistakably preexisted his active duty service, and if so, whether it was clearly and unmistakably not aggravated by service; and if the response to the question is negative, please provide an opinion as to whether it is at least as likely as not that his current diabetes mellitus type II is etiologically related to service; a complete rationale was requested for all opinions rendered. With respect to the right knee disorder, the October 2019 Board remand directed the AOJ to obtain VA opinions to determine whether the Veteran's left knee [sic] disability (emphasis added), clearly and unmistakably preexisted his active duty service, and if so, was it clearly and unmistakably not aggravated by service; and if the response to the question is negative, please provide an opinion as to whether it is at least as likely as not that his current left knee [sic] disorder is etiologically related to service; a complete rationale was requested for all opinions rendered. The requested VA examinations were afforded with respect to the Veteran's claims in January 2020 and November 2020; an additional VA opinion with regard to the Veteran's right knee disorder was obtained in January 2021. The January 2020 VA examiner opined that the Veteran's diabetes mellitus type II was less likely than not incurred in or etiologically related to service. Additionally, the examiner opined that diabetes mellitus type II clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by service. In that regard, the examiner stated that there was insufficient evidence to support the condition was related to active service and insufficient evidence to determine whether it was aggravated beyond its natural progression by service. In November 2020, the examiner opined that the Veteran's diabetes mellitus type II was less likely than not incurred in or caused by service. In that regard, the examiner noted the evidence did not show findings of diabetes mellitus prior to active service and that his induction and separation exams indicated the Veteran was in good health and did not have diabetes mellitus on urinalysis testing. The examiner also noted that the Veteran was first diagnosed with diabetes in 1985, 25 years after separation from active service, that he did not have service in the Republic of Vietnam nor herbicide exposure, that there were no available records documenting diabetes or diabetic symptoms while on active service and that there was no evidence of diabetes mellitus, type II prior to enlistment. Further, the examiner noted that the treatment records from 2003 to 2020 did not substantiate an aggravation of diabetes mellitus as a result from active service. Therefore, the examiner opined it was less likely than not that the Veteran's diabetes mellitus type II clearly and unmistakably preexisted his active service and it was less likely than not that the Veteran's current diabetes mellitus, type II, is etiologically related to active service. In January 2021, the examiner opined that the Veteran's right knee disorder was less likely than not incurred in or caused by active service. In that regard, the examiner noted the Veteran was not seen or treated for any knee condition during service and noted the March 1958 pre-induction examination indicating the Veteran had a "trick" knee with a childhood operation. The examiner further noted that the February 1960 separation examination indicating the Veteran had a trick knee without any issues in the prior six months and that his physical examination was all normal upon separation. Additionally, the examiner noted that the Veteran's right knee disorder clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by service. In this regard, the examiner noted that the Veteran had right knee surgery and wore a brace for some time, did not have evidence of worsening knee pain during service, and at time of discharge, the Veteran noted his "trick knee" but did not have any treatment or issues within the past six months. The Board finds the January 2020, November 2020, and January 2021 VA medical opinions inadequate to decide the claims. In this regard, the examiner failed to provide supporting rationale for the conclusions reached. Rather, the examiner merely concluded there was no nexus without well-reasoned and detailed explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Specifically, the January 2020 examiner merely stated that there was insufficient evidence to determine whether diabetes mellitus was etiologically related to service and to determine whether it was aggravated beyond its natural progression. The November 2020 examiner provided some explanation as to the opinion that the diabetes mellitus type II did not clearly and unmistakably preexist service and was not aggravated beyond its natural progression. However, the November 2020 examiner also opined that the diabetes mellitus type II was not etiologically related to active service, without supporting rationale nor explanation. With regard to the January 2021 VA medical opinion, the examiner noted the Veteran's childhood and preexisting right knee disorder and surgery and noted there was no evidence of worsening. However, the examiner failed to adequately address the Board's prior remand directives as to whether the right knee disorder clearly and unmistakably preexisted his active duty service, and if so, was it clearly and unmistakably not aggravated by service; and if the response to the question is negative, please provide an opinion as to whether it is at least as likely as not that his current left knee [sic] disorder is etiologically related to service; a complete rationale was requested for all opinions rendered. Therefore, the Board finds the January 2020, November 2020, and January 2021 VA addendum opinions inadequate to decide the claims. Given these deficiencies, the Board is unable to find that substantial compliance with the prior remand has been achieved. See D'Aries, 22 Vet. App. at 105; see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As such, remand is again to obtain VA opinions that comply with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. at 268, 271 (1998). 2. Service Connection Heart and Eye Disorders Regarding the issues of entitlement to service connection for heart and eye disorders, to include as secondary to diabetes mellitus type II, the Board notes that the issues are inextricably intertwined with the claim of entitlement to service connection for diabetes mellitus type II remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claims for entitlement to service connection for heart and eye disorders should be deferred pending final dispositions of the claim of entitlement to service connection for diabetes mellitus type II. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, the Veteran should be afforded appropriate VA examinations to determine the etiology of his claimed acquired diabetes mellitus type II and a right knee disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies and tests should be conducted. The need for further in-person examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (A) With regards to the claimed diabetes mellitus type II, is it clear and unmistakable (obvious, manifest, and undebatable) that such preexisted active service? (B) If so, is it clear and unmistakable (obvious, manifest, and undebatable) that the preexisting diabetes mellitus, type II WAS NOT aggravated during service; or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress? (C) With regards to the claimed right knee disorder, is it clear and unmistakable (obvious, manifest, and undebatable) that such preexisted active service? (D) If so, is it clear and unmistakable (obvious, manifest, and undebatable) that the preexisting right knee disorder WAS NOT aggravated during service; or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress? The examiner should be sure to address the Veteran's history of right trick knee and childhood surgery. (F) If the answer to item A is no and the diabetes mellitus type II and/or a right knee disorder DID NOT preexist service, is it at least as likely as not (a probability of 50 percent or greater) that such disorder had its onset in service or is etiologically related to service? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, Associate 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.