Citation Nr: 22018697 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 09-08 887 DATE: March 30, 2022 REMANDED Entitlement to service connection for type I diabetes mellitus (diabetes) is remanded. Entitlement to service connection for peripheral neuropathy, associated with diabetes, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1972 to February 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision issued by a Department of Veterans Affairs (VA) regional office. These matters were remanded by the Board in January 2010, May 2017, December 2020, and July 2021. In a March 2014 decision, the Board denied the Veteran's claims. The Veteran appealed the denials to the United States Court of Appeals for Veterans Claims (Court). In a September 2016 Memorandum Decision, the Court found that a remand of the Veteran's claims was warranted as the Board did not provide an adequate statement of reasons or bases for its decision. Specifically, the Court found that the Board applied the incorrect standard for service connection on a presumptive basis by requiring the Veteran to have been diagnosed within the one-year period following his service, rather than discussing whether his diabetes manifested to a compensable degree within that period. The Court also noted that the Veteran contended that VA had failed to obtain private treatment records. In an October 2018 decision, the Board again denied the Veteran's claims. The Veteran appealed the denials to the Court. In a May 2020 Memorandum Decision, the Court found that a remand of the Veteran's claims was warranted as the parties agreed that the Board did not address the competency of a 2010 VA medical examination, the Veteran's lay statements regarding in-service symptomatology, or why it determined that a 2009 letter from the Veteran's treating podiatrist did not constitute competent and credible evidence of in-service diabetes symptomatology. The Court also noted that the Veteran contended that VA had failed to obtain private treatment records. As an initial matter, the Board notes that the Veteran filed a claim of entitlement to service connection for a right foot condition. See August 2006 VA Form 21-4138; December 2006 VA Correspondence. The Board also notes that the Veteran has been diagnosed with post injury right foot pain, right foot scars, and right lower extremity peripheral neuropathy. See April 2021 VA Foot Conditions Disability Benefits Questionnaire (DBQ). In an April 2021 rating decision, service connection was granted for right foot status post foot surgery with pain, as well as for scar status post right foot surgery. As such, the issues of entitlement to service connection for such right foot conditions are not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). However, the issue of entitlement to service connection for right lower extremity peripheral neuropathy remained before the Board. It is well-settled that when a veteran makes a claim, they are seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the record reveals a diagnosis of bilateral upper and lower extremity peripheral neuropathy. See February 2010 VA Diabetes Examination. Accordingly, the Board finds it appropriate to recharacterize the Veteran's claim as one of entitlement to service connection for peripheral neuropathy, associated with diabetes. 1. Entitlement to service connection for type I diabetes mellitus (diabetes) is remanded. 2. Entitlement to service connection for peripheral neuropathy, associated with diabetes, is remanded. The Board sincerely regrets the delay associated with this remand, particularly given the procedural history associated with these matters. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the July 2021 remand directives. See Stegall v. West, 1 Vet. App. 368 (1998). Specifically, in July 2021, the Board instructed the AOJ to obtain a copy of the curriculum vitae, and any other information regarding their qualifications, for the VA examiner who performed the April 2021 VA examinations, as well as for the examiner who would perform the examinations requested therein. However, no information regarding the qualifications of such examiners has been associated with the claims file, nor is there any indication that such information was requested. As such, the Board cannot find substantial compliance with the July 2021 remand directives and, therefore, a remand is necessary to allow the AOJ to obtain such information. See Stegall v. West, supra. Even if the Board could find substantial compliance with the May 2021 remand directives, a remand is nonetheless warranted to allow the AOJ to conduct additional development. First, the record indicates that the Veteran was awarded Social Security Administration (SSA) disability benefits in October 2008. See December 2020 SSA Inquiry. However, no SSA medical records have been associated with the claims file, nor is there any indication that such records have been requested. As such, a remand is necessary to allow the AOJ to obtain relevant SSA records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.103(c)(2)(iii), 3.159(c); Turner v. Shulkin, 29 Vet. App. 207 (2018). Second, a remand is warranted to obtain an adequate opinion regarding the etiology of the Veteran's diabetes. In July 2021, VA opinions were obtained in which the examiner opined that it was less likely than not that the Veteran's diabetes was incurred in or otherwise related to his active duty service or manifested to a compensable degree within one year. In support of this opinion, the examiner noted that the Veteran reported experienced symptoms associated with diabetes, including neuropathy, during service, and agreed with an October 2009 private opinion's note that neuropathy symptoms will often precede the actual diagnosis of diabetes. Nonetheless, the examiner noted that the Veteran's enlistment examination documented neuropathy in the feet, meaning that the Veteran's diabetes symptoms existed prior to service. See July 2021 VA Medical Opinion DBQ; July 2021 VA Presumptive Medical Opinion DBQ. However, while the Veteran's enlistment examination noted foot numbness, diabetes was not noted. See STR-Medical. As such, the Veteran is presumed to have been in sound condition at enlistment unless clear and unmistakable evidence demonstrates that his diabetes existed before acceptance and enrollment AND was not aggravated by his service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Crowe v. Brown, 7 Vet. App. 238 (1994). Here, though the examiner based their opinion on the determination that the Veteran's diabetes symptomatology pre-existed his service, the examiner did not find that his diabetes clearly and unmistakably pre-existed his active duty service. Moreover, the examiner did not address whether there was clear and unmistakable evidence that the Veteran's diabetes was not aggravated by his service. See July 2021 VA Medical Opinion DBQ; July 2021 VA Presumptive Medical Opinion DBQ. Moreover, as discussed above, potentially pertinent SSA medical records have not been associated with the claims file. Therefore, the July 2021 opinions are inadequate to the extent the examiner was unable to consider the Veteran's medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). For these reasons, the Board finds the July 2021 VA opinions to be inadequate for adjudication purposes and, as such, a remand is necessary to obtain an adequate opinion regarding the etiology of the Veteran's diabetes. See Barr v. Nicholson, 21 Vet. App. 120, 123 (2007). Further, the Board finds that this issue poses a medical problem of such obscurity or complexity that an advisory opinion from an independent medical expert (IME) is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Specifically, multiple VA opinions have been unable to adequately answer the question of the etiology of the Veteran's diabetes. The AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. With respect to the Veteran's claim of entitlement to service connection for peripheral neuropathy, associated with diabetes, a remand is necessary as the issue is inextricably intertwined with the issue of entitlement to service connection for diabetes. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Lastly, the Board notes that the Veteran contends that pertinent private medical records are not associated with the claims file, to include records relating to treatment from Dr. Cucil and at Clark Regional Hospital. See September 2016 Memorandum Decision; May 2020 Memorandum Decision. The Board also notes that, in December 2020, the AOJ requested that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers that provided him with treatment pertinent to his claims. The AOJ also provided the Veteran and his representative with a VA Form 21-4142, Authorization to Disclose Information, and VA Form 21-4142a, General Release for Medical Provider Information, to allow the AOJ to obtain the Veteran's medical records on his behalf. See December 2020 VA Correspondence. To date, the Veteran has not responded to the request. VA's duty to assist is not a "one-way street," and a Veteran seeking help cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining pertinent evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Nonetheless, as a remand of this matter is otherwise warranted, the Board finds that the AOJ should make one more attempt to identify and obtain any pertinent medical records. The Veteran is cautioned that failure to cooperate with any requested development may result in the denial of his claim. See 38 C.F.R. § 3.655. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, conduct the following development: (a.) Obtain a copy of the curriculum vitae for the VA examiners that provided the April 2021 and July 2021 VA opinions, as well as any other available information regarding their qualifications. The Veteran and his representative should be provided with copies of such information. (b.) Obtain and associate with the claims file any outstanding pertinent medical records, whether VA or private, to include SSA records and records relating to treatment from Dr. Cucil and Clark Regional Hospital, as well as records relating to treatment at Lexington VA Medical Center from August 2021 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, obtain an advisory medical opinion from an appropriate medical expert, pursuant to 38 U.S.C. § 5109 and 38 C.F.R. § 3.328, regarding the nature and etiology of the Veteran's diabetes. The AOJ must follow its established procedures for requesting such an advisory opinion. A copy of they physician's curriculum vitae, and any other available information regarding their qualifications, should be obtained, and the Veteran and his representative should be provided with a copy of such. The entire claims file must be provided to, and reviewed by, the physician. If the physician determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be conducted. The physician is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) Address the following: i. Does the evidence clearly and unmistakably show that the Veteran's diabetes existed prior to service? THE EXAMINER IS SPECIFICALLY ASKED TO ADDRESS THE MARCH 1972 ENLISTMENT EXAMINATION'S NOTATION OF FOOT NUMBNESS. ii. If the Veteran's diabetes did clearly and unmistakably pre-exist his active duty service, does the evidence CLEARLY AND UNMISTAKABLY show that his diabetes DID NOT increase in severity beyond the natural progress of the condition (i.e. the condition was not aggravated by service)? (c.) If the Veteran's diabetes did not clearly and unmistakably pre-exist his service, provide the following opinions: i. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that it had its onset during, or is otherwise related to, his active duty service; and ii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's diabetes manifested to a compensable degree within one year of his discharge from active duty service, regardless of the date of diagnosis. (d.) In formulating the requested opinions, the physician is asked to consider and specifically address: i. The Veteran's enlistment examination, noting foot numbness; ii. The Veteran's lay history, including his report of in-service symptoms of frequent urination, excessive thirst, hunger-related weakness, and pain, swelling, and tingling of his right lower extremity; iii. The September 2009 testimony from the Veteran's former spouse, reporting that, shortly after service, the Veteran experienced bad breath and mood swings, would drink lots of water, and frequently awakened to urinate; iv. The October 2009 opinion from Dr. Photos, noting that it was very likely that symptoms of neuropathy began prior to the Veteran's diagnosis of diabetes as neuropathy often precedes the actual diagnosis of diabetes; v. The February 2010 VA opinion, noting that the onset of type I diabetes tends to be more rapid in nature and it was unlikely that an individual would have had symptoms for years prior to a diagnosis; and vi. The July 2021 VA opinion, in which the examiner stated that the Veteran's reports of in-service symptomatology were consistent with diabetes, and that the notation of foot numbness on the Veteran's enlistment examination indicated that his diabetes symptomatology pre-existed his service. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the physician should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the physician should identify and specifically cite each reference material utilized. If the physician is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The physician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The physician is also advised that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.