Citation Nr: 21065882 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 18-00 897 DATE: October 27, 2021 REMANDED Entitlement to service connection for diabetes mellitus, type II, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1962 to June 1965. In May 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In August 2019, the Board remanded the claim on appeal for further development and adjudication. In August 2020, the Board found that there was substantial compliance with its August 2019 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In August 2020, the Board denied the Veteran's claim for entitlement to service connection for diabetes mellitus, type II, and the Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (CAVC). In a June 2021 Joint Motion for Partial Remand (JMPR), CAVC set aside the Board's denial and remanded the claim back to the Board for further development and adjudication. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to service connection for diabetes mellitus, type II, is remanded. The Veteran contends that he suffers from diabetes mellitus as a result of his service to include chemical and fuel exposure while serving as a combat engineer. The Veteran's DD 214 confirms that his military occupational specialty was Combat Engineer. Furthermore, service treatment records dated in 1963 indicated that the Veteran was under a physician's care for diabetes. Post-service treatment records in January 2007 show glucose testing which confirmed diabetes mellitus, type II diagnosis. In December 2019 the Veteran underwent a VA Diabetes Mellitus examination. The examiner confirmed the Veteran's diabetes mellitus, type II diagnosis. However, he found that there was no evidence of a definitive diagnosis of diabetes mellitus, type II, noted in the Veteran's service treatment records via elevated glucose readings or medical treatment for diabetes mellitus, type II. He noted that while there was a notation in the service dental records that the Veteran was under physician care for diabetes, the 1963 record was not a medical record by a primary care physician but rather just a dental clinic note without evidence to support the contention. The examiner continued that the Veteran's separation exam was negative for diabetes mellitus, type II, in 1965. Furthermore, according to the Veteran's VA records, he was diagnosed with diabetes mellitus, type II many years after discharge from service. The examiner opined that after a thorough review the Veteran's service treatment records, which are absent for evidence of diabetes mellitus, type II, symptoms or elevated glucose levels, his current diabetes mellitus, type II, was less likely than not related to service nor did it have its onset within a year of service. The examiner added that "there is no clear evidence to suggest his DM 2 is greater than 50% probability related to chemical and fuel exposure as a combat engineer." As previously noted, in June 2021 the Court found that the Board erred by relying on the December 2019 medical opinion. The Court and the Board now find the opinion inadequate as the examiner utilized the wrong standard, finding "there is no clear evidence to suggest his DM 2 is greater than 50% probability related to chemical and fuel exposure as a combat engineer." The appropriate standard is "as likely as not." The Board also finds the opinion to be internally inconsistent as the examiner marked the check box for the correct standard but then utilized the incorrect standard in his rationale. Therefore, as the examiner did not consistently use the correct standard, the opinion is inadequate for adjudication purposes and on remand a new opinion should be obtained. Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. Provide the Veteran with an appropriate VA examination to determine the nature and etiology of his diabetes mellitus. Based on the examination, review of the record, and any tests or studies deemed necessary, the examiner should provide opinions responding to the following: 1) For the Veteran's diagnosed diabetes mellitus, is it at least as likely as not (50 percent OR greater probability), that such disability had its onset during any period of service, or is otherwise related to such period of service, to include the Veteran's claimed in-service chemical and fuel exposure? 2) Did the Veteran's diabetes mellitus manifest within one year of the Veteran's service separation, and if so, describe the manifestations. Must address in-service 1963 notation that the Veteran was under a physician's care for diabetes. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.