Citation Nr: A25035429 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 210901-181984 DATE: April 17, 2025 REMANDED Entitlement to service connection for diabetes mellitus type II (DM II), to include as secondary to service-connected post-traumatic stress disorder (PTSD), bilateral plantar fasciitis, or obstructive sleep apnea (OSA), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 2002 to July 2003 and from June 2006 to October 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2020 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for DM II. In the September 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the September 2020 agency of original jurisdiction (AOJ) decision on appeal, which was subsequently subject to higher-level review, and any evidence submitted by the Veteran [or representative] with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. However, because the Board is remanding the Veteran's claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii). Entitlement to service connection for diabetes mellitus type II (DM II), to include as secondary to service-connected post-traumatic stress disorder (PTSD), bilateral plantar fasciitis, or obstructive sleep apnea (OSA). The Veteran seeks service connection for DM II, to include as secondary to service-connected disabilities. See September 2021 Form 10182 and Attorney's Brief. Following a review of the record, and as discussed further below, the Board finds that a remand is necessary to correct a pre-decisional duty-to-assist (DTA) error. Under the AMA, the Board must remand to the AOJ to correct pre-decisional DTA errors (including when the AOJ failed to make reasonable efforts to obtain VA treatment records or relevant federal or private treatment records, failed to obtain a VA examination, or provided an inadequate VA examination or opinion). 38 C.F.R. § 20.802(a). In February 2019, the Veteran underwent a VA examination, in which a VA examiner diagnosed DM II. The examiner also provided negative medical opinions as to both direct and secondary service connection. First, the examiner opined that the Veteran's DM II is less likely than not related to his active service based on the absence of an in-service diagnosis of DM II. The examiner then provided a second opinion, in which he/she opined that the Veteran's DM II is less likely than not caused by his service-connected OSA. As a rationale, the examiner stated that while there is an increased prevalence of insulin resistance and type 2 diabetes in people who have OSA, "prevalence does not equal causation." Since the examiner found no medical data to support a causal link between OSA and DM II, the examiner concluded that a nexus could not be established regarding the Veteran's case. Later, in August 2020, the VA afforded the Veteran a medical opinion as to secondary service connection. Specifically, the examiner opined that the Veteran's DM II is less likely than not proximately due to, or the result of, his service-connected PTSD, bilateral plantar fasciitis, and/or OSA. The examiner reviewed and discussed the Veteran's submitted medical articles, concluding that while the articles support an undeniable effect on the status of each condition in the Veteran's overall well-being, they do not prove a causal relationship between his disabilities. The examiner also noted the Veteran's risk factors, including his BMI of 37.4 and difficulty exercising due to plantar fasciitis, but reasoned that calorie control, not exercise, leads to greater success with weight loss. Therefore, based on records review, history, literature research, and physical examination, the examiner found no nexus between the Veteran's DM II and his service-connected disabilities. The Board finds that the VA opinions are inadequate for adjudication purposes. With respect to direct service connection, the February 2019 VA examiner failed to address or discuss the Veteran's particular service circumstances, including toxic exposure due to deployment in Afghanistan. See September 2007 DD 214 Form. Also, concerning secondary service connection, the same examiner provided a negative medical opinion based on the absence of supportive medical data without regard for the Veteran's submitted medical article that suggests a link between DM II and OSA. The August 2020 VA examiner noted the Veteran's BMI of 37.4 but failed to consider obesity as an intermediate step between his service-connected disabilities and current DM II. See VAOPGCPREC 1-2017; Walsh v. Wilkie, 32 Vet. App. 300 (2020). Finally, the Board notes that both secondary opinions do not consider aggravation as a factor for service connection. From the foregoing, the AOJ failed to provide adequate medical opinions, constituting a pre-decisional DTA error. Remand is thus warranted to correct this error. The matter is REMANDED for the following action: Schedule the Veteran for medical opinions by a qualified VA examiner regarding the Veteran's claim of entitlement to service connection for diabetes mellitus type II (DM II). The entire claims file, including a copy of this Remand, must be made available to, and be reviewed by the examiner in conjunction with the requested opinions, and should the examiner require an additional examination to render the requested opinions, such examination should be scheduled. Following a review of the claims file and examination, if necessary, the examiner shall address the following: (a.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's DM II had its onset in service or is otherwise related to his military service, to include exposure to burn pit and other toxins. In so opining, the examiner should address the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. (b.) If the answer to (a) is negative, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's DM II is caused by his service-connected disabilities (particularly his PTSD, bilateral plantar fasciitis, and OSA)? In this regard, please state upon what facts and medical principles and/or medical literature you base this opinion. (c.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's DM II is aggravated by his service-connected disabilities (particularly his PTSD, bilateral plantar fasciitis, and OSA)? In this regard, please state upon what facts and medical principles and/or medical literature you base this opinion. (d.) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's service-connected disabilities caused or aggravated the Veteran's weight? (e.) If the examiner finds the Veteran's service-connected disabilities caused or aggravated his weight, identify whether the weight was a substantial factor in causing his DM II; and (f.) Whether the Veteran's DM II would not have occurred but for the weight gain caused by a service-connected disabilities. In providing the above opinions, the examiner must specifically consider and discuss the relevant lay and medical evidence of record, including January 2019 Argument; January 2019 Medical Article; February 2019 VA examination and medical opinions; May 2020 Attorney's Brief; August 2020 VA examination and medical opinion; September 2021 Medical Article; September 2021 Attorney's Brief; and December 2022 VA Memo, Toxic Exposure. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided to assist the examiner in locating potentially relevant evidence. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander, Lasheyna T. 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.