Citation Nr: 1748337 Decision Date: 10/26/17 Archive Date: 11/03/17 DOCKET NO. 10-41 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARING ON APPEAL The Veteran and his fiancée ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In July 2013 the Veteran and his fiancée testified before the undersigned Veterans Law Judge in Washington, D.C. A transcript is associated with the electronic file. In January 2014, this matter was remanded for additional development, to include obtaining outstanding VA treatment records; as well as a VA examination and opinion. In an October 2016 decision, the Board denied, in part, the Veteran's claim. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a July 2017 Joint Motion for Partial Remand (JMPR), the Court vacated the Board's decision relevant to the denial of service connection for diabetes mellitus, type II; and remanded the matter for compliance with the terms of the JMPR. The Board observes that although the Veteran had a private attorney representing him before the Court, the November 1985 VA Form 23-22 (appointing AMVETS as the Veteran's representative in all of the matters pending before the Board) remains in effect, and the Veteran has made no indication of a desire to change his representation before the Board. Thus, the Veteran retains the same representative for the diabetes mellitus, type II issue before the Board. The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the Veteran if further action, on his part, is required. REMAND In light of the point raised in the parties' JMPR, and the Board's review of the claims file, further AOJ action on the claim on appeal is warranted. The July 2017 JMPR notes that the Board erred because it failed to ensure compliance with the terms of its January 2014 remand. See Stegall v. West, 11 Vet.App. 268, 271 (1998). It was noted that in remanding the matter, the Board ordered that a VA examiner "acknowledge and discuss the Veteran's reports of shakiness and dizziness during and since service." The JMPR noted that despite the Board's order, the July 2014 VA examiner failed to acknowledge or discuss the Veteran's lay statements. This should be accomplished. Consequently, in light of the JMPR findings, a remand is required to ensure fulfillment of the Board's January 2014 remand instructions by obtaining an additional addendum opinion. See Stegall v. West, 11 Vet. App. 268, 270 (1998). Accordingly, the case is REMANDED for the following action: 1. Return the claims file, to include a copy of this remand, to the July 2014 VA examiner for an addendum opinion to ascertain the nature and etiology of the Veteran's diabetes mellitus, type II. If the examiner who drafted the July 2014 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. If an examination is determined to be necessary, all indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The electronic file should be provided to the examiner for review. Following a review of the record, the examiner is asked to furnish an opinion with respect to the following: a. The examiner is asked to address whether it is at least as likely as not (a 50 percent, or greater, likelihood) that the Veteran's current diabetes mellitus, type II is etiologically related to the Veteran's period of active service. The examiner must particularly consider and address in the opinion, the Veteran's statements, including his allegations concerning his in-service symptomatology of shakiness and dizziness during and since service. b. Should he or she deem that the diabetes mellitus, type II is unrelated to the Veteran's active service, identifying other factors that likely brought on the illness would be useful. c. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both 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 causation. d. The rationale for any opinion offered should be fully set out. If the examiner is unable to offer an opinion without resort to mere speculation, the examiner must adequately explain why the opinion would require speculation. 2. Re-adjudicate the claim, and if the decision remains adverse, provide the Veteran and his representative a supplemental statement of the case. Then return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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). _________________________________________________ MICHAEL E. KILCOYNE 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 the appeal. 38 C.F.R. § 20.1100(b) (2016).