Citation Nr: 21067308 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 15-01 685A DATE: November 3, 2021 REMANDED Service connection for type II diabetes mellitus is remanded. REASONS FOR REMAND The Veteran had active service in the U.S. Navy from September 1993 to March 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In a February 2019 Board decision, the Board denied the service connection issue on appeal for type II diabetes mellitus. However, the Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 Order, the Court partially vacated and remanded the Board's earlier decision for the type II diabetes mellitus issue, pursuant to an October 2020 Joint Motion for Partial Remand (Joint Motion). The October 2020 Joint Motion concluded that the Board erred by failing to provide an adequate statement of reasons or bases for its denial of service connection for type II diabetes mellitus. 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Specifically, the Board failed to provide an adequate explanation as to whether the duty to assist was satisfied in the Board's efforts to obtain the Veteran's missing STR separation examination. Also, the Board failed to address whether the Veteran's July 2014 VA diabetes mellitus examination was adequate. Upon return to the Board, in February 2021, the Board remanded the type II diabetes mellitus issue on appeal for further development, in light of the above instructions contained in the October 2020 Joint Motion. The AOJ substantially complied with some aspects of the Board's remand order (as will be discussed in further detail below). Stegall v. West, 11 Vet. App. 268, 271 (1998). The AOJ then issued a September 2021 Supplemental Statement of the Case (SSOC) to the Veteran, continuing to deny the type II diabetes mellitus issue on appeal. The case has now returned to the Board for further appellate review. Service connection for type II diabetes mellitus is again REMANDED. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, substantial compliance with the remand order, but not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). In any event, a failure by the Board to ensure compliance with previous remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. In the present case, the AOJ did not substantially comply with some aspects of the development requested in the Board's most recent February 2021 remand for the type II diabetes mellitus issue on appeal. First, in accordance with the instructions of the Board's February 2021 Board remand, the AOJ secured a July 2021 VA diabetes mellitus examination and medical opinion from a VA nurse practitioner. However, this VA medical opinion addressing the etiology of the Veteran's type II diabetes mellitus, although probative, is not fully adequate. On this point, when VA provides a VA examination or obtains a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Specifically, the July 2021 VA nurse practitioner failed to directly answer one aspect of the etiology question as posed, for the type II diabetes mellitus issue on appeal. Specifically, Instruction #3 of the February 2021 Board remand requested, in part, that a VA examiner opine whether it is "at least as likely as not" (i.e., 50 percent or greater probability) that the Veteran's current diabetes mellitus is related to his service, including a November 2000 STR laboratory finding recording protein in the urine. In rendering this opinion, the VA examiner was asked to address, among other things, the Veteran's lay assertion that a post-service January 2012 VA treatment record noted the presence of diabetes for over ten years, which overlapped with the Veteran's period of active service. However, in the July 2021 VA medical opinion, although the VA nurse practitioner provided a probative medical opinion against a nexus to service for the Veteran's type II diabetes mellitus, she failed to discuss the Veteran's lay allegation that a VA physician while treating the Veteran in January 2012 told him that his type II diabetes mellitus began 10 years earlier during his active duty service in the Navy. On this point, an adequate medical opinion should discuss the specific facts and particularized circumstances of a veteran's case. Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018). Moreover, the Board emphasizes the Court's recent holding that the duty to assist requires that a VA examiner "address the veteran's lay statements to provide the Board with an adequate medical opinion," in part because "medical opinions can inform credibility findings." Miller v Wilkie, 32 Vet. App. 249, 258 (2020). The Court added that a VA examiner needs to explain whether the claimant's lay assertions are generally "consistent or inconsistent" with medical knowledge. Id. at 259-60. Second, since the appeal is already being remanded for the above reasons, a remand is required for the AOJ to send additional notice to the Veteran pursuant to 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) formerly known as the Veterans Claims Assistance Act of 2000 (VCAA). Since a STR separation examination is alleged to be missing, a specific duty to notify letter is required that specifically addresses alternative sources of evidence the Veteran may submit in lieu of any missing STRs. In this regard, the February 2021 Board remand already instructed the AOJ to send a corrective VCAA notice letter notifying the Veteran that he could submit alternative sources or evidence in place of his missing STRs. The AOJ partially complied with the Board's remand by sending the Veteran a May 2021 VCAA notice letter generally advising him that he could submit alternative sources or evidence in place of any missing STRs that would support his claim. However, the May 2021 VCAA notice letter failed to inform the Veteran of specific examples of what kinds of substitute or alternative evidence he could submit in order to support his claim. The Court has held that when service records are lost or missing or destroyed, in conjunction with a heightened duty to assist, VA must inform the Veteran that he can submit "alternative" sources in place of his missing service records. See Washington v. Nicholson, 19 Vet. App. 362, 369-370 (2005); see also Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). Examples of such alternate sources or evidence mentioned in the above VA caselaw include such evidence as the VA military files, statements from service medical personnel, "buddy" certificates or affidavits, state or local accident and police reports, employment physical examination reports, medical evidence from civilian/private hospitals, clinics, and physicians where or by whom a Veteran was treated, either during service or shortly after separation, letters written during service, photographs taken during service, pharmacy prescription records, and/or insurance examinations reports. Id. Thus, a remand is required for the AOJ to provide the Veteran with a duty to notify letter advising the Veteran of specific examples of what alternative evidence he can submit in place of the alleged missing STR separation examination. This matter is REMANDED for the following action: 1. The AOJ should send the Veteran a corrective notice letter pursuant to 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) formerly known as the VCAA. This letter should notify the Veteran that he can submit alternative sources or evidence in place of his alleged missing STR separation examination. This time, the notice letter should advise the Veteran of specific examples of alternate evidence he can submit including VA military files, statements from service medical personnel, buddy certificates or affidavits, state or local accident and police reports, employment physical examination reports, medical evidence from civilian/private hospitals, clinics, and physicians where or by whom he was treated, either during service or shortly after separation, letters written during service, photographs taken during service, pharmacy prescription records, and/or insurance examinations reports. 2. After completion of step 1, for the type II diabetes mellitus issue, obtain a VA addendum opinion from the July 2021 VA nurse practitioner examiner. If this VA examiner is no longer available, another qualified VA clinician must provide the VA addendum opinion. The VA examiner must review the claims file. The VA examiner must provide a rationale to support the opinions. It is unnecessary to perform another actual VA diabetes mellitus examination that is, only a medical opinion is required here. The VA examiner is once again asked to provide a response to the following: Is it "at least as likely as not" (i.e., an approximate balance) that the Veteran's diabetes mellitus is related to service, including STR findings of protein in the urine in November 2000 during active service? This time, in making this determination, the VA examiner must address the Veteran's lay allegation that a VA physician (Dr. David L. Strange, MD.,) while treating the Veteran in January 2012 stated to the Veteran that his type II diabetes mellitus began 10 years earlier during his active duty service in the Navy. See e.g., December 2012 Veteran statement. The VA examiner's attention is directed to various VA treatment records dated in January 2012 and thereafter confirming that a VA physician (Dr. David L. Strange, MD.) diagnosed and treated the Veteran for type II diabetes mellitus in January 2012 and thereafter. None of these VA treatment records mention that the Veteran's type II diabetes mellitus began 10 years earlier during active duty. In other words, the VA examiner should assess whether there is any change in her negative conclusion regarding the lack of a nexus to service for type II diabetes mellitus, after discussing the Veteran's lay assertion above and the VA treatment records dated in January 2012. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. Rubin, 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.