Citation Nr: 1805716 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 00-00 230A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Spigelman, Associate Counsel INTRODUCTION The Veteran had active naval service from November 1981 to November 1991. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. Jurisdiction over the case was subsequently transferred to the VA RO in Wichita, Kansas. In connection with this appeal, the Veteran testified at hearings in February 2009 and September 2013. Those hearings were conducted by two separate Veterans Law Judges. Transcripts of those hearings have been added to the record. The law requires that the Veterans Law Judge who conducts a hearing on appeal must participate in any decision made on that appeal, and in the event of multiple hearings by different Veterans Law Judges, that matter will be decided by a three member panel of Veterans Law Judges. See 38 U.S.C. § 7102 (2012); 38 C.F.R. § 20.707 (2017). Additionally, a Veteran is entitled to have an opportunity for a hearing before all Board members who will ultimately decide their appeal. Arneson v. Shinseki, 24 Vet. App. 379 (2011). In January 2014, the Veteran was notified of his option to have a third hearing before a Veterans Law Judge who would be assigned to the panel to decide the appeal. He was informed that if he did not respond within the applicable timeframe, it would be assumed that he did not want a third hearing. The Veteran did not respond within the applicable timeframe. Therefore, the Board will proceed accordingly. This case was previously before the Board. In March 2015, the Board denied the Veteran's claim of entitlement to service connection for diabetes mellitus. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2016 Memorandum Decision, the Court ordered the previous decision vacated and remanded the case to the Board for further action. In December 2016, the Board remanded the case for development consistent with the Court's July 2016 Memorandum Decision. In July 2017, the Board again remanded the case for additional development consistent with the Court's July 2016 Memorandum Decision. The case has now been returned to the Board for further appellate action. REMAND Regrettably, the Board finds that additional development is required before the claim on appeal is decided. In its July 2017 remand, the Board directed that the Veteran's claims file be returned to the VA Medical Center for an addendum opinion to determine the nature and etiology of the Veteran's diabetes mellitus. Specifically, the Board directed that the examiner provide an opinion as to whether the Veteran's diabetes mellitus was caused or aggravated beyond its natural progression by his service-connected disabilities. The examiner was directed to additionally consider the Veteran's assertion that his inability to exercise as a result of his service-connected disabilities rendered him unable to keep his weight below 280 pounds, which resulted in the necessity for medication in an effort to control his diabetes mellitus. A review of the record shows that the Veteran was afforded a VA addendum opinion in August 2017. At that time, the examiner opined that it was less likely than not that the Veteran's claimed Diabetes Mellitus was related to an inability to exercise leading to weight gain and development of diabetes. The examiner further opined that the Veteran's service-connected disabilities did not preclude the Veteran from engaging in a modified exercise regime. The Board finds the August 2018 addendum opinion is inadequate to serve as the basis for a denial of entitlement to service connection for diabetes mellitus. In this regard, the Board acknowledges that the examiner addressed the Veteran's claim that his inability to exercise due to his service-connected disabilities rendered him unable to keep his weight below 280 pounds and thus required medication for control of his diabetes mellitus. The Board further notes that in the August 2017 addendum opinion, the examiner identified that the Veteran had physical limitations from his service-connected disabilities. However, the examiner failed to provide an opinion as to whether the Veteran's diabetes mellitus was caused or aggravated beyond its natural progression by any of the Veteran's service-connected disabilities, aside from the impact of the Veteran's claimed inability to exercise. As the examiner failed to comply with the directives of the July 2017 remand, the addendum opinion is not adequate and as such, cannot serve as the basis of a denial of entitlement to service connection. Therefore, the Board finds that the development conducted does not adequately comply with the directives of the July 2017 remand. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Board finds that the Veteran should be afforded a new VA examination, by an examiner who has not previously examined him or provided an opinion in this appeal, to determine the nature and etiology of his diabetes mellitus. Additionally, current treatment records should be identified and obtained prior to a final decision in this appeal. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records not already of record in the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of his diabetes mellitus. The claims file must be made available to, and reviewed in its entirety by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's diabetes mellitus is caused or aggravated beyond the natural progression by his service-connected disabilities. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and any medical opinions provided comport with this remand and undertake any other development found to be warranted. 4. Then, readjudicate the issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case, allow appropriate time for response, and return the case to the Board. The Veteran 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. §§ 5109B, 7112 (2012). ___________________________ _________________________ John J. Crowley M. H. Hawley Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals _________________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).