Citation Nr: 21073456 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-12 294 DATE: December 8, 2021 REMANDED Entitlement to service connection for diabetes mellitus, type 2 is remanded. Entitlement to service connection for a chronic nerve disability of the right lower extremity is remanded. Entitlement to service connection for a chronic nerve disability of the left lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1981 to January 1983, with additional service in the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019 and August 2021, the Board remanded the claims for further development. The case has now been returned to the Board for further appellate action. A review of the Veteran's claims file reveals that a remand is unfortunately once again necessary before a decision on the merits of the claims can be reached. The Veteran's claim for service connection for diabetes was previously remanded for an etiological opinion. Of note, the Board has conceded that the Veteran was diagnosed with diabetes less than two years after his discharge from service. The claim was previously remanded for the examiner to address the relevance of the Veteran developing diabetes less than two years after his discharge from service. In October 2021, a VA examiner once again diagnosed diabetes mellitus and opined that it was less likely than not incurred in or caused by service. However, the examiner failed to address the relevance of Veteran developing diabetes less than two years after his discharge from service and instead indicated that the earliest evidence of an abnormal A1C was in 2016. The examiner acknowledged that the Veteran was prescribed Metformin in 2014 but stated that she was unable to confirm when he was initially diagnosed with diabetes mellitus and indicated that a nexus could not be established. The Board notes that a remand by the Board confers upon the claimant, as a matter of law, the right of compliance with the Board's remand directives, and imposes upon the Board a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Because the October 2021 VA medical examination and opinion does not comply with the directives outlined in the August 2021 remand, the Board finds that a remand for a new VA medical opinion for the Veteran's claim for entitlement to service connection for diabetes mellitus is warranted. With regard to the claims for service connection for chronic bilateral lower extremity nerve disabilities, the claims must be remanded for clarification. At the October 2021 VA examination, an examiner diagnosed the Veteran with diabetic peripheral neuropathy and opined that it was less likely than not incurred in or caused by service or caused or aggravated by a service-connected disability. The examiner's rationale was that she was unsure when the Veteran was diagnosed with diabetes and indicated that it was possible the Veteran's peripheral neuropathy was due to his (nonservice-connected) back conditions and that diabetes mellitus was not due to service. As such, it is unclear whether the Veteran's peripheral neuropathy was related to his diabetes mellitus. In light of the necessity of a remand for the claim for diabetes mellitus, a remand is once again necessary to determine the etiology of the diagnosed peripheral neuropathy. Finally, the Veteran's claim for a TDIU is inextricably intertwined with his claims for service connection for diabetes mellitus, type 2 and bilateral lower extremity nerve disabilities, as a determination on whether the Veteran is entitled to service connection for these disabilities will impact a determination on whether a TDIU is warranted. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991 The matters are REMANDED for the following action: 1. Obtain medical opinions for the etiology of the Veteran's diabetes, and right and left lower extremity nerve disabilities. The claims file must be made available to the examiner(s) and the examiner(s) must note a review of such in the examination report(s). Examination(s) should be scheduled only if determined to be necessary by the clinician(s). a) Following a review of the record, the examiner is asked to opine on whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diabetes mellitus, type 2 is related to his military service. In rendering this opinion, the examiner must address the relevance of the Veteran being diagnosed with diabetes mellitus, type 2 less than two years from his separation from service (the date of diagnosis has been conceded by VA), as well as his relatively young age at the time of diagnosis. The examiner is reminded that a complete rationale is one with clear conclusions and supporting data, and a reasoned medical explanation connecting the two. b) Regarding the Veteran's right and left lower extremity nerve disabilities, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that such a diagnosis is related to the Veteran's military service. c) The examiner is specifically asked to clarify whether the Veteran currently experiences peripheral neuropathy and, if so, whether his peripheral neuropathy is at least as likely as not (50 percent probability or greater) related to the Veteran's military service. d) Also, whether the Veteran's peripheral neuropathy was at least as likely as not (50 percent or greater probability) proximately due to or aggravated by diabetes mellitus, type 2. Aggravation does not require that there be "permanent" worsening of the nonservice-connected disability. The examiner must provide separate findings and rationales relating to causation and aggravation. A complete rationale must be provided for all opinions (Continued on the next page) 2. Confirm that all medical opinions obtained comport with this remand, and undertake any other development determined to be warranted. 3. Then, readjudicate the issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Cryan, 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.