Citation Nr: 21041462 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 09-24 308 DATE: July 9, 2021 REMANDED Entitlement to service connection for diabetes mellitus (DM) is remanded. Entitlement to service connection for a bilateral eye disability, to include diabetic retinopathy, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) from September 1975 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran service connection for DM, a bilateral eye disability, and TDIU. A Board hearing was held in March 2013. A transcript is of record. In April 2018, the Veteran was notified that the Veterans Law Judge (VLJ) who conducted that hearing was no longer available and was offered the opportunity for a new Board hearing. The Veteran requested an additional hearing in May 2018. A second Board hearing was held in January 2019. That transcript is also of record. In May 2013, May 2019, and November 2020, the Board remanded the Veteran's claims to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board's remand directives. Importantly, the Board instructed the AOJ to obtain a medical opinion from an appropriately qualified clinician. The claim is back before the Board for further appellate proceedings. Regrettably, the Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for DM is remanded. Following the November 2020 remand, the AOJ requested a medical opinion from an optometrist and ophthalmologist as to the Veteran's retinopathy and a nurse practitioner as to the Veteran's DM. Importantly, the optometrist and ophthalmologist were presented with the question of whether the Veteran's service-connected ankle and knee caused obesity which then caused his diabetes which finally caused his retinopathy. See February 2021 VA examination reports. Both doctors opined that they were unqualified to determine whether the Veteran's obesity was caused by his service-connected ankle and knee. Id. Rather, they each recommended obtaining an opinion from a "qualified practitioner," which they described as a general practitioner, physiologist, or endocrinologist. Id. In March 2021, the Veteran's representative indicated that he generally objected to an unidentified VA compensation and pension examination and requested the VA examiner's curriculum vitae (CV). See March 2021 Correspondence. Although the representative failed to identify the examination report at issue, the record on appeal reflects that the DM opinion should have been obtained from a qualified practitioner, such as a general practitioner, physiologist, or endocrinologist. There is no indication in the VA examination report that the nurse practitioner, who identified themselves as specializing in general practice, was qualified to assess the nature, etiology, and interplay of DM, obesity, and the Veteran's service connected ankle and knee. See Francway v. Wilkie, 930 F.3d 1377 (2019) (holding that once a challenge to an examiner's competency 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). Accordingly, given the concerns addressed above, the claim must be remanded in order to obtain a new medical opinion as to the Veteran's DM rendered by a qualified physician. 2. Entitlement to service connection for a bilateral eye disability, to include diabetic retinopathy is remanded. As discussed above, the Veteran's representative indicated that he generally objected to an unidentified VA compensation and pension examination and requested the VA examiner's curriculum vitae (CV). See March 2021 Correspondence. Although the representative failed to identify the examination report at issue, the Board can reasonably assume the representative challenged the examination reports before the Board. As the Veteran's representative has raised a challenge to the competency of the clinicians who provided a retinopathy opinion, a remand is necessary to obtain information regarding their qualifications. See Francway, 930 F.3d 1377 (2019). 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Since the decision on the remanded issues discussed above materially impacts a decision on entitlement to TDIU, the issues are inextricably intertwined. Accordingly, the Board will defer decision on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his diabetes mellitus and diabetic retinopathy that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Provide the Veteran and his attorney information regarding the qualifications of the February 2021 VA examiners, to include a CV and/or other similar material. A copy of this information should also be included in the Veteran's claims file. 3. After the development in #1 above is completed, obtain an opinion from an appropriately qualified physician, such as a general practitioner, physiologist, or endocrinologist to determine the nature and etiology of the Veteran's diabetes mellitus. The evidentiary record, including a copy of this remand, must be made available and reviewed by the clinician. The opinion should include a notation that this record review took place. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review, and examination if deemed necessary, the reviewing clinician is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran's obesity was (1) caused or (2) aggravated his service-connected osteoarthritis, to include severe right ankle DJD and bilateral knee arthritis? B. Is it at least as likely as not that the Veteran's DM and diabetic retinopathy were (i) caused or (ii) aggravated the Veteran's obesity? The reviewing clinician must address the Veteran's October 2020 contention that his DM and diabetic retinopathy "were the result of morbid obesity caused by his service-connected orthopedic impairments." The reviewing clinician is directed to June 2012 Boston Medical Center treatment records noting the Veteran's "obesity keeps getting worse. This is not helping...his glucose metabolism." The reviewing clinician is further directed to December 1996 and December 1989 medical records, submitted in July 1999, noting the Veteran's history of diabetes since age 38. In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the 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. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Strickland 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.