Citation Nr: 1314511 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 08-30 068 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to chemical exposure, excluding Agent Orange. 2. Whether new and material evidence was received to reopen a claim of entitlement to service connection for hypertension due to chemical exposure, excluding Agent Orange, to include as secondary to type II diabetes mellitus 3. Whether new and material evidence was received to reopen a claim of entitlement to service connection for cataracts due to inservice chemical exposure, excluding Agent Orange, to include as secondary to type II diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to October 1969. The record reflects that entitlement to service connection for diabetes mellitus, hypertension and cataracts, to include as due to ionizing radiation, was denied by agency of original jurisdiction rating actions dated in February 2004 and December 2004. The Veteran did not perfect timely appeals from those determinations and they are final. See 38 C.F.R. § 20.1103 (2012). The current appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a rating decision of the Regional Office (RO) of Columbia, South Carolina. The Veteran was afforded a hearing at the RO in February 2009. The transcript is of record. By Board decision in December 2011, service connection for bilateral hand and bilateral foot arthritis was denied. The claim of entitlement to service connection for type II diabetes mellitus was reopened and remanded for development and merits consideration. Consideration of the remaining issues was deferred pending development of the diabetes claim. Following review of the record, the appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. REMAND The record discloses that pursuant to the Board's December 2011 remand, a VA examination was requested for an opinion to determine the likely etiology of type II diabetes. The Veteran was afforded a VA examination in January 2012. However, as pointed out by the Veteran's Representative in the April 2012 Appellant's Post-Remand Brief, the examination and its report did not comply with the remand or the examination request stipulations. Specifically, the Representative indicated that the examination was conducted by a VA nurse practitioner. The Board notes that in the remand, it was requested that the Veteran be examined by a physician. Additionally, the examiner did not provide an opinion, comment or rationale as to whether diabetes was due to inservice chemical exposure, excluding Agent Orange, as requested in the remand. The report is thus inadequate for adjudication purposes. It is noted that the record contained a private medical opinion on the merits which was provided without complete rationale. Thus, clarifying opinion was thought indicated. Moreover, appellant, as noted in the prior decision, contends that he was exposed to cleaning chemicals that are currently "outlawed." Specifically he has made reference to exposure to Acetone, Benzene, Carbon tetrachloride, asbestos, uranium 235, methyl mercury, ammonia, and DDL2F2. A physician's opinion as to whether exposure to these chemicals could cause diabetes was thought indicated, which is why the remand specified a physician. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet.App. 268, 271 (1998). In Stegall, the Court of Appeals for Veterans Claims (Court) held that "where . . . the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. In this instance, a significant requirement of the development sought by the Board was not accomplished. The Representative requests that the case be remanded for further development. The Board concurs that another remand is required to address the deficiencies. See C.F.R. § 19.9 (2012). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination by a specialist in endocrinology or internal medicine or other appropriate physician. The claims folder and access to Virtual VA as appropriate must be made available to the examining physician. The physician must indicate whether the claims folder and Virtual VA are reviewed. All indicated tests and studies should be performed and clinical findings must be reported in detail. The examination report should reflect consideration of the Veteran's documented medical history, current complaints, and other assertions, including claimed exposure to the chemicals noted above. Based on a thorough review of the evidence of record and the physical examination findings, the examiner must opine with a detailed and complete rationale as to whether it is at least as likely as not (i.e., probability of 50 percent) diabetes is directly related to service, to include exposure to hazardous chemicals (excluding Agent Orange) and/or ionizing radiation. If so, an opinion should be rendered as to whether it is at least as likely as not that hypertension and/or cataracts are caused by or aggravated (permanently made worse) by type II diabetes. The examination report must include well-reasoned rationale for all opinions and conclusions reached. Please reconcile/distinguish your opinion with the other opinions on file to the extent possible. 2. The RO must ensure that the medical report requested above complies with this remand and its instructions. If the report is insufficient, or if a requested action is not taken or is deficient, it should be returned for correction. See Stegall. 3. After taking any further development deemed appropriate, readjudicate the issues on appeal. If a benefit sought is not granted, provide a supplemental statement of the case to the Veteran and his representative before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).