Citation Nr: 22008078 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 13-09 916 DATE: February 11, 2022 REMANDED Entitlement to service connection for diabetes mellitus is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1971 to November 1973, and from April 1974 to December 1987. In March 2017, the Veteran testified at a hearing before Veterans Law Judge Auer. A transcript of the hearing is associated with the record. In October 2017, the Board remanded these matters to obtain legible copies of the Veteran's service records, obtain private and VA treatment records, provide the Veteran appropriate notice regarding lay evidence, obtain a VA medical opinion regarding the etiology of his diabetes mellitus, and to provide the Veteran with a VA aid and attendance examination. In December 2020, the Veteran testified at a hearing before Veterans Law Judge Hwa. A transcript of the hearing is associated with the record. As there have been two hearings by two separate Veterans Law Judges on the issues on appeal, a panel decision is necessary for final adjudication of the claim. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). In Arneson, the United States Court of Appeals for Veterans Claims (the Court) interpreted 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three Veterans Law Judges involved in a panel decision. By law, an appeal can be assigned only to an individual Veterans Law Judge or to a panel of not less than three members. See 38 U.S.C. § 7102. Thus, when an appellant has had a personal hearing before two separate Veterans Law Judges during the appeal and these hearings covered one or more common issues, a third Veterans Law Judge is assigned to the panel after the second Board hearing has been held and the appeal is then ready for appellate review. Under these circumstances where a "claimant's appeal is assigned to a Board panel in a piecemeal fashion," the Court held in Arneson that the "claimant must still be afforded the opportunity for a hearing before every member of the panel that will ultimately decide his case." Arneson, 24 Vet. App. at 386. This does not mean that the hearing must be held before every member of the panel at the same time, but rather "only that [the appellant] be afforded the opportunity to be heard...by every panel member who will decide his case." Id. In this case, the Veteran waived his right to a third hearing on the record at the December 2020 Hearing. See December 2020 Hearing Transcript, p. 2. In February 2021, the Board remanded this matter to obtain a VA medical opinion regarding whether the Veteran's diabetes mellitus was caused by or aggravated by his service-connected psychiatric condition. The opinion was obtained in September 2021. Although the Board regrets further delay, remand is again warranted to ensure VA meets its duty to assist the Veteran. Entitlement to service connection for diabetes mellitus is remanded. The Veteran contends that his current diagnosis of diabetes mellitus, type II, (diabetes) was either incurred during active-duty service or caused by exposure to contaminated water at Camp Lejeune (CLCW). In October 2017, the Board remanded this matter, and asked a VA medical examiner to provide an opinion regarding whether the Veteran's diabetes was related to service. The Board remand asked the examiner to specifically address the Veteran's contentions that his legs swelled and retained fluid during service, and that he was told that he had an elevated blood sugar level reading in November 1986. Pursuant to the October 2017 remand, a VA medical opinion was obtained in June 2020. The June 2020 examiner noted the Veteran's lay statements that he was told there was a possibility he could have had diabetes prior to his formal diagnosis in 2000, that there was a family history of diabetes, that he had fluid retention, and that he had an elevated blood sugar reading in November 1986. However, the examiner concluded that there were no medical records or laboratory data to support a diagnosis of diabetes during his military service utilizing established diagnostic criteria for diabetes, type 2. The Board finds that this opinion did not adequately consider the Veteran's lay statements, as it was based solely on a finding of a lack of medical documentation of diabetes during service. Buchanan v. Nicholson, 451 F.3d 1331 (holding that although "the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible."). Further, a VA examiner must address the Veteran's lay statements to provide the Board with an adequate medical opinion and, among other things, an examiner may explain that the Veteran's reports about symptoms or an in-service injury align with how the disease or disability is known to develop. Miller v. Wilkie 32 Vet. App. 249 (2020). During the December 2020 hearing, the Veteran testified regarding additional symptoms during service, including swelling and tingling in the feet and urinary frequency. The Veteran stated that he believed these were symptoms of diabetes during service. Remand is warranted for a VA addendum medical opinion that considers the Veteran's lay statements about the onset of his symptoms in service and continuity of symptoms since service. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the Veteran's diabetes. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran's diabetes mellitus, type II, (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran's description of his in-service and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner must specifically address the Veteran's lay statements: During the March 2017 hearing, the Veteran testified that he was told there was a possibility he could have had diabetes prior to his formal diagnosis, and that he was told that he had an elevated blood sugar level reading in November 1986. In a November 2017 written statement, the Veteran reported that blood work during service showed a possibility of diabetes, and that, when he was diagnosed with diabetes in 2000, his doctor told him it was a possibility that the diabetes had its onset about seven to 10 years prior. During the December 2020 hearing, the Veteran testified that he experienced a tingling sensation and pain in his feet during service, and that he experienced frequent restroom visits and blurry vision during service. The Veteran also testified that, during service, he was admitted to the hospital for a swollen left leg, and that his A1C count was found to be 12. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Casey, 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.