Citation Nr: 1818192 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 16-36 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for diabetes mellitus, Type II (DM). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from September 1950 to November 1951, from September 1953 to July 1957, and from August 1967 to November 1969. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Petersburg, Florida. In a July 2017 decision, the Board found that new and material evidence had been received and reopened the prior denial of service connection for DM and remanded the matter for further development, to include a VA examination. As will be discussed in greater detail below, the Board must remand this matter for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center in Washington, DC. VA will notify the appellant if further action is required. REMAND In the remand portion of the September 2017 decision, the Board indicated that the Veteran should be afforded a VA examination to determine the etiology of his current DM and its relationship to his period of service, to include the one year presumptive period following service, with the examiner specifically addressing the January 1970 letter from the Tampa VAMC Director when rendering his/her opinion. Although the Veteran failed to report for the scheduled examination, an opinion was obtained from a VA examiner as to the etiology of any current DM and its relationship, if any, to his period of service, to include the one year following service. The examiner indicated that review of medical records did not reveal evidence of DM during service or within one year of separation from service. Therefore, DM was less likely as not incurred in, caused by or aggravated by service. However, the examiner noted in the report that the Board required that when rendering the opinion she had to address the January 1970 letter from the Director of the Tampa VAMC, which noted that the Veteran had been evaluated and diagnosed with DM. The examiner indicated that the letter was not tabbed in VBMS and she was not able to find this document in VBMS. Thus, it was not considered when rendering the decision, as was required in the prior Board remand. The Board errs as a matter of law when it fails to ensure compliance with the instructions of its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). Given the foregoing, the matter should be returned to the November 2017 VA examiner who provided the opinion, with the examiner being requested to address the January 1970 letter from the Director of the James Haley VAMC. The document is located in VBMS dated 3/08/2016 and entitled Medical Treatment Record-Government Facility with the subject indicating "Tampa, letter dated 01/14/1970". Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. If available return the record to the November 2017 VA examiner who provided the opinion as to the etiology of any current DM and its relationship to the Veteran's period of service. The examiner must specifically review the January 1970 letter from the Director of the James Haley VAMC located in VBMS dated 3/08/2016 and entitled Medical Treatment Record-Government Facility, with the subject indicating "Tampa, letter dated 01/14/1970". Following a complete review of the record, the examiner is requested to render an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's DM had its onset in service, was manifest to a compensable degree within one year of service, or is otherwise related to service. If the examiner is not available refer the record to another examiner to render the requested opinion When rendering the above opinion, the examiner must address the January 1970 letter from the Director of the Tampa VAMC noting that the Veteran had been evaluated and diagnosed with DM. Complete detailed rationale is requested for each opinion that is rendered. 2. The RO must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action must be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After completing all indicated development, readjudicate the remaining issue. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. 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). _________________________________________________ K. Parakkal 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) (2017).