Citation Nr: 21042030 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 16-61 728 DATE: July 11, 2021 REMANDED Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected hypertension, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from May 1977 to February 1978. These matters are on appeal from May 2013 rating decision. The Board previously remanded this case in December 2018 for additional development. Unfortunately, as explained below, the Board is not satisfied that there was substantial compliance with its most recent remand. Therefore, the appeal must be remanded once again. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected hypertension, is remanded. The Veteran seeks service connection for diabetes mellitus, type II, which he contends is secondary to his service-connected hypertension. In the December 2018 remand, the Board directed the RO to schedule the Veteran for a VA examination and to obtain a medical opinion from a qualified VA examiner to assess the nature and etiology of the Veteran's diabetes mellitus, type II, to include his contention that his diabetes mellitus, type II is related to his service-connected hypertension and the theory raised by a VA physician that the Veteran's obesity may have served as an intermediate step between his service connected conditions and his diabetes mellitus, type II. The Board specifically directed the VA examiner to consider and discuss the medical literature submitted by the Veteran in the provided medical opinion. Pursuant to these instructions, the Veteran underwent a VA examination in December 2019. Upon examination, the examiner confirmed a diagnosis if diabetes mellitus, type II. The VA examiner opined that the Veteran's diabetes mellitus is less likely than not proximately due to or the result of hypertension. The examiner remarked that he knew of no expert medical literature which shows diabetes mellitus is aggravated by hypertension without addressing the two articles suggesting a link between hypertension and diabetes mellitus submitted by the Veteran. These findings did not sufficiently address either causation or aggravation, as is required when evaluating a claim under the theory of entitlement of secondary service connection. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Additionally, the examiner failed to address the Veteran's September 2011 assertion that that a VA Medical Center Nurse Practitioner, SS, stated his hypertension was definitely related to his diabetes mellitus, type II, as requested in the December 2018 remand. With regard to the relationship, if any, between the Veteran's obesity and his diabetes mellitus, the examiner opined that it was less likely than not that the Veteran's obesity was caused by his service connected hypertension citing the lack of known expert medical literature showing that hypertension causes obesity at a likelihood of 50 percent or greater. but stated it was as likely as not that the Veteran's obesity was a substantial factor in causing his currently diagnosed diabetes mellitus, type II as obesity is a known risk factor for diabetes mellitus, type II but stated that he could not say whether the Veteran's diabetes mellitus, type II would have occurred but for his obesity without resorting to speculation, reasoning that people develop diabetes mellitus, type II who are not obese. The Board finds each of these opinions to be inadequate because they do not contain a sufficient medical rationale to support their conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, and sound reasoning for the conclusion that contributes to the probative value of a medical opinion); see also Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a mere conclusory opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to a medical opinion). Accordingly, the claim must be remanded once again because the RO did not comply with the Board's prior remand directive to obtain an adequate medical opinion on the appellant's behalf. See Stegall, 11 Vet. App. at 268. On remand, an addendum medical opinion must be obtained that is adequate for the Board to make an informed decision on the appellant's claim. In this regard, the RO should obtain an opinion from a qualified medical professional who fully assesses the nature and etiology of the Veteran's diabetes mellitus, type II as outlined in the directives below. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas, 23 Vet. App.at 26. Furthermore, the claims file indicates that the Veteran is in receipt of Social Security Administration (SSA) benefits. As these records may provide evidence to substantiate the Veteran's claims, on remand, the RO should request any available Social Security disability records. 38 C.F.R. § 3.159(c)(2); see Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA must request potentially relevant Social Security disability records under VA's duty to assist). 2. Entitlement to a TDIU is remanded. The Veteran's TDIU claim is inextricably intertwined with the service connection claims remanded herein, as the resolution of those claims may have bearing upon the claim for a TDIU. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Thus, the Board finds that adjudication of the Veteran's TDIU claim would be premature, and it must be deferred pending adjudication of the service connection claims on appeal. Accordingly, the matters are REMANDED for the following action: 1. Contact the Social Security Administration (SSA) and request copies of the Veteran's medical records in the SSA's possession pertaining to his claim for SSA disability benefits, including the SSA decision and underlying medical records. Copies of all documented attempts by VA to obtain these outstanding SSA medical records and SSA's responses to these queries must be associated with the Veteran's claims file. If the SSA records are not available, the SSA should provide to VA a written response presenting the official reason(s) why these records are unavailable, and such should be associated with the claims file. 2. Obtain an addendum medical opinion from a VA examiner (M.D.) of appropriate expertise discussing the nature and etiology of the Veteran's diabetes mellitus, type II. An in-person examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and the review should be noted in the examination report. Thereafter, the examiner is asked to provide an opinion with respect to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diabetes mellitus, type II had its onset in service, within one year of separation, or is otherwise etiologically related to his active duty service? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diabetes mellitus, type II is caused by his service-connected hypertension? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diabetes mellitus, type II is aggravated (increased in severity beyond its natural progression) by his service-connected hypertension? In providing the requested opinion, the examiner must specifically address the relevance, if any, of the following medical evidence and contentions submitted by the Veteran: i. Overview of hypertension in adults; uptodate.com, online article submitted by the Veteran in September 2011 ii. Blood pressure linked to diabetes in major new study; Oxford Martin School, University of Oxford, online article submitted by the Veteran in August 2016 iii. the Veteran's September 2011 assertion that that a VA Medical Center Nurse Practitioner, SS, stated his hypertension was definitely related to his diabetes mellitus, type II (d) If not, is it at least as likely as not (a fifty percent probability or greater) that the Veteran's obesity was caused by his service-connected disabilities? (e) If so, is it at least as likely as not (a fifty percent probability or greater) that the obesity was a substantial factor in causing the Veteran's type II diabetes mellitus? (f) If so, is it at least as likely as not (a fifty percent probability or greater) that BUT FOR the obesity the Veteran would not have been diagnosed with type II diabetes mellitus? In answering questions (d) through (f) above, attention is invited to a May 2013 opinion from a VA physician, PP, stating that the Veteran's body habitus is a risk factor for the development of diabetes mellitus, type II. If it is determined that there is another more likely etiology for the Veteran's diabetes mellitus, type II, that should be stated. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner must set forth a complete rationale for any conclusion reached, citing to the examiner's clinical experience, medical expertise, and established medical principles, as well as evidence in the Veteran's claims file, as necessary. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. (Continued on the next page) The Board reminds the examiner that failure to comply with the examination directives outlined herein will render the medical opinion inadequate and will result in further remand of the Veteran's claim. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.