Citation Nr: 21040077 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 09-08 887 DATE: July 2, 2021 REMANDED Entitlement to service connection for diabetes mellitus, type I, (DMI) is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to DMI, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1972 to February 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his ex-wife testified at a September 2009 videoconference hearing before a Veterans' Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. Following the issuance of a January 2010 remand, the VLJ who conducted the September 2009 hearing retired. In February 2014, the Board offered the Veteran an opportunity to have a hearing before another VLJ who would participate in the decision on his appeal. In March 2014, the Veteran responded that he did not wish to have another hearing before the Board. See 38 U.S.C. § 7107(c); 38 C.F.R. §§ 20.707, 20.717. In March 2014, the Board, in pertinent part, denied the claims of entitlement to service connection for DMI and a right foot condition. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (the Court). In a September 2016 memorandum decision, the Court vacated the Board's denial and remanded the claims for development. Following a May 2017 remand, the Board again denied these claims in an October 2018 decision. The Veteran appealed the denial to the Court. In May 2020 the Court vacated the October 2018 decision and remanded the claims for additional development. Most recently, the Board remanded this matter in December 2020 for further development consistent with the Court's most recent remand. That development has been completed, and the matter has returned to the Board for further appellate review. 1. Entitlement to service connection for type I diabetes mellitus (DMI) is remanded. 2. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to DMI, is remanded. Initially, the Board acknowledges that the Veteran and his representative have challenged the competency of the April 2021 VA examiner and have specifically asked for that examiner's curriculum vitae and other information about her qualifications. On remand, such should be provided to the Veteran and his representative. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019) (holding that once a challenge is raised, the presumption of competency is rebutted, and VA must satisfy its burden of persuasion as to the examiner's qualifications and respond to the challenge by providing information about the qualifications of a medical examiner to the veteran). The Board also finds that a remand is required for a supplemental opinion. In this regard, the RO was directed to obtain an opinion which considered and addressed the Veteran and his ex-wife's statements regarding his pre-diabetic/diabetic symptomatology during and immediately after active duty service. See June 2006 Statement in Support of Claim; September 2009 Hearing Transcript; Undated Correspondence, received by VA April 25, 2011. The Board specifically noted that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. Furthermore, the Veteran and his ex-wife are competent to discuss observable symptomatology from the Veteran's active duty service and following his separation from active duty service. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility determinations are within the purview of the Board). The April 2021 VA examiner, in providing negative nexus opinions relied, in pertinent part, on the lack of contemporaneous medical evidence confirming the Veteran's statements. Additionally, the examiner misstated the date of the Veteran's initial diagnosis of DMI and mislabeled his diagnosis as that of diabetes mellitus, type II. As such, the April 2021 opinions are afforded little probative value. Notwithstanding, the examiner's finding that the Veteran's right lower extremity peripheral neuropathy is secondary to his DMI is afforded probative value. On remand, a supplemental opinion should be obtained, as set forth below. The matters are REMANDED for the following action: 1. Obtain a copy of the curriculum vitae, and any other available information regarding their qualifications, for the VA examiner who performed the April 2021 VA examinations regarding DMI, peripheral neuropathy, and a right foot disorder as well as the examiner who will perform the examinations requested below. If the requested information is not obtainable, the Veteran should be notified, and the reasons for such should be documented in the record. 2. Obtain a supplemental opinion from an appropriate clinician (other than the one who rendered the April 2021 opinions) regarding the nature and etiology of the Veteran's DMI and right lower extremity peripheral neuropathy. The need for an in-person examination or telehealth evaluation is at the discretion of the examiner rendering the requested opinion. The entire claims file must be reviewed by the examiner in conjunction with the opinion. The examiner should confirm in the examination report that he or she has reviewed the folder in conjunction with the supplemental opinion. Following a review of the claims file, the examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diabetes mellitus, type I, was incurred in or is otherwise related to his active military service? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diabetes mellitus, type I, manifested to a compensable degree within one year of his discharge from active duty service? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's peripheral neuropathy, right lower extremity, was incurred in or is otherwise related to the Veteran's active military service? (d) Is it at least as likely as not (50 percent or greater probability) that the Veteran's peripheral neuropathy, right lower extremity, manifested to a compensable degree within one year of his discharge from active duty service? In reaching these opinions, the examiner must consider and address the following statements and testimony of the Veteran and his ex-wife: (i) The Veteran developed symptoms of diabetes while on active duty service including frequent urination, excessive thirst, hunger-related weakness, and an inability to donate blood due to low blood count. (ii) That the Veteran developed pain, swelling, and tingling of his right lower extremity during and since active duty service. (iii) That the Veteran had excessive thirst, frequent urination, bad breath, and mood swings within one year of his discharge from active duty service. (Continued on the next page) The Board notes that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1331 (Fed. Cir. 2006). The examiner must provide a complete rationale for all opinions provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. Christopher O'Donnell Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Stedman, 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.