Citation Nr: 1603609 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 13-02 471 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an evaluation in excess of 20 percent for diabetes mellitus (DM) type II. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Costello, Associate Counsel INTRODUCTION The Veteran had active duty service from December 1967 to June 1974. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2010 rating decision of the Department of the Veteran Affairs (VA) Regional Office (RO) in Wichita, Kansas, which denied the Veteran's claim of entitlement to an increased rating for DM type II, currently evaluated as 20 percent disabling. In May 2013, the Veteran testified regarding this matter at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board denied entitlement to a rating in excess of 20 percent for DM type II in a February 2015 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Veterans Court). In an Order dated in a December 2015, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board's February 2015 decision and remanded this issue back to the Board for development consistent with the Joint Motion. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veterans Court has directed that additional development is necessary in this appeal. The Board is bound by the findings contained in the Joint Motion, as adopted by the Veterans Court. See Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the Court's prior action with respect to the same claim). The Joint Motion stipulates that the Veteran was afforded a VA examination of his DM type II in October 2012, in which the examiner was asked "[d]oes the Veteran have any of the following conditions that are at least as likely as not (at least a 50% probability) due to [diabetes mellitus]?" (See October 2012 VA examination report, page 3, section 3.b.) In response, the examiner marked "[y]es," but did not indicate which of the conditions listed were associated with diabetes. In accordance the examination instructions, the examiner was required to "indicate the [associated] conditions below: (check all that apply)" after marking "yes." The examiner did not comply with this instruction. The Joint Motion found that since the rating criteria for DM instructs the rater to evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation, clarification of the examination report is required. Accordingly, the case is REMANDED for the following action: 1. Obtain any additional evidence relevant to the Veteran's DM type II claim that may have come into existence since the claims folder was last before the AOJ. 2. Then, obtain a VA addendum medical opinion from an appropriate examiner. If an examination is deemed necessary by the examiner, then it should be arranged. Upon review of this remand, the claims file, and relevant evidence, the examiner shall address the following questions: Which of the conditions, as described on page 3, section 3.b. of the October 2012 examination report, are present? And if so, whether it is at least as likely as not (at least a 50 percent probability) that any such disability(s) is/are due to the Veteran's DM type II?? Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the above and any other development deemed necessary, readjudicate the remanded issue. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. 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 2014). _________________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).