Citation Nr: 21065679 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-40 461 DATE: October 27, 2021 REMANDED Entitlement to service connection for diabetes mellitus is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Navy from June 1955 to February 1978 with service in the Republic of Vietnam. In September 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In November 2019, the Board of Veterans' Appeal (Board) reopened the claims of service connection for diabetes mellitus and hypertension and thereafter denied the claims of service connection for diabetes mellitus, hypertension, and sleep apnea. The Veteran appealed the November 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 order, which incorporated the parties October 2020 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board's denial of service connection for diabetes mellitus, hypertension, and sleep apnea. In May 2021, the Board Remanded the appeal. In an August 2021 rating decision, the regional office (RO) thereafter granted service connection for hypertension and sleep apnea. Therefore, the Board finds that these issues are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Entitlement to service connection for diabetes mellitus is remanded. As to the claim of service connection for diabetes mellitus, the Board remanded this issue in May 2021 to, among other things, to provide the Veteran with a new VA examination to ascertain if he had diabetes mellitus. In accordance with the JMPR, the Remand directed the VA examiner when providing his opinion to specifically consider "the September 2019 VA medical treatment note that stated that he had '... diabetes mellitus, a disease characterized by high blood sugar levels over a prolonged time..."" However, while the post-Remand record shows that the Veteran was afforded a VA examination in August 2021, at which time he was found to not meet the criteria for a diagnosis of type 2 diabetes mellitus, that opinion does not include a discussion of the September 2019 VA medical treatment note that diagnosed diabetes mellitus. Moreover, contrary to the Board's Remand, the opinion was limited to type 2 diabetes mellitus, when the Remand asked about any diabetes mellitus. Therefore, because the August 2021 VA examination did not comply with the Board's May 2021 Remand instructions, another Remand is required to obtain the requested medical opinion. See 38 U.S.C. § 5103A(d); Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Next, the Board notes that while the appeal was in Remand status the Veteran's representative in June 2021 provided the RO with an authorization to obtain the appellant's records from Dr. Doug Hodde. However, efforts to obtain these records came to an end in July 2021 when Dr. Hodde's office notified the RO that it wanted a fee to provide VA with the Veteran's records. Tellingly, the record does not show that the RO thereafter sent the Veteran and his representative a letter notifying them of this fee requirement, the fact that the RO would not pay the fee, and notify them that it will adjudicate the claim without these records unless they obtained them and send them to the RO. See 38 C.F.R. § 19.9. Therefore, the Board finds that a Remand is also required for the RO to send the Veteran and his representative a letter regarding Dr. Hodde's records being unavailable without further action on their part as well as to obtain and associate with the record any other outstanding VA and private treatment records. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Notify the Veteran and his representative that Dr. Doug Hodde requires a fee for his records, that the RO will not pay the fee, and his claim will be adjudicated without these records unless they obtained them and send them to the RO. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any other outstanding private treatment records. If possible, the Veteran or his representative should submit any new and pertinent evidence the Board/VA does not have (if any). Any help with the above would be appreciated. 3. Obtain and associate with the claims file any outstanding VA treatment records. 4. In order to comply with the JMPR and the last Remand, obtain a medical opinion from a suitably qualified medical professional to address the Veteran's claim of service connection for diabetes mellitus. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a consideration of the evidence of record (both lay and medical) and an examination, if needed, the examiner is asked to address the following: Provide an opinion as to whether the Veteran currently has, or even had, a diagnosis of any type of diabetes mellitus. In order to comply with the JMPR and the last Remand, in providing an answer to the above questions the examiner must consider and discuss, among other things, the following: the September 2019 VA medical treatment note that stated that he had "... diabetes mellitus, a disease characterized by high blood sugar levels over a prolonged time..." In providing answers to the above questions the examiner should consider and discuss the Veteran's competent lay claims regarding observable symptomatology. In providing answers to the above questions the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. (Continued on the next page) In answering the question, please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to the above inquiry without resort to speculation he or she should so state and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.