Citation Nr: 21074747 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-34 435 DATE: December 16, 2021 REMANDED Entitlement to service connection for diabetes mellitus, Type II, as secondary to service-connected hypertension and/or coronary artery disease (CAD) with congestive heart failure (CHF), is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from December 1982 to April 2003, to include service in Southwest Asia. His decorations included the Southwest Asia Service Medal. Unfortunately, he died in February 2020. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In October 2019, the Veteran and his wife testified at a Board hearing before the undersigned Veterans Law Judge in Washington, D.C. A transcript of that hearing has been associated with the record. The issue on appeal was previously before the Board in January 2020 and June 2021, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. While the Board sincerely regrets the additional delay, the development sought in the Board's prior remands has not been fully completed. A further remand is therefore required. Stegall v. West, 11 Vet. App. 2689 (1998) (a remand by the Board confers on the appellant the right to compliance with the remand). Entitlement to service connection for diabetes mellitus, Type II, as secondary to service-connected hypertension and/or CAD with CHF, is remanded. In its January 2020 and June 2021 remands, the Board noted that the claims file did not contain certain relevant records of private treatment and that it also appeared to be missing records of Federal treatment. The Board directed the AOJ to ask the Veteran (in its January 2020 remand) or the appellant (in its June 2021 remand) to provide a release for relevant private treatment records from Dr. D. at Virginia Heart in Alexandria, Virginia, and from Dr. K. at Sun Medical Center in Annandale, Virginia, and to identify and provide an appropriate release for records of any other private treatment he had received for diabetes. It also directed the AOJ to ensure that all VA and/or other Federal treatment records were obtained and associated with the claims file, including records of treatment from Fort McPherson, Georgia, from Rader Health Clinic at Fort Myer, and from Walter Reed Army Medical Center in Bethesda, Maryland. Finally, it directed the AOJ to obtain a VA addendum medical opinion contingent upon the procurement of additional relevant treatment records. In June 2021, subsequent to the Board's June 2021 remand, it appears that the AOJ made a request for additional service treatment records (STRs) to the Records Management Center (RMC) but received a negative response. In August 2021, the AOJ sent the appellant a letter asking her to provide a release for records of VA and/or other Federal treatment from Fort McPherson, Rader Health Clinic, and Walter Reed Medical Center. These efforts by the AOJ indicate that it misunderstood the Board's June 2021 remand directives. The VA and/or Federal treatment records which the Veteran previously identified are not STRs, but rather post-service treatment records. The request that the AOJ made to the RMC for STRs therefore appears to have been misdirected. Inasmuch as no release is required for the AOJ to obtain records from VA and/or other Federal facilities, the AOJ's letter to the appellant asking her to provide a release for the records was also misdirected. See, e.g., Bell v. Derwinski, 2 Vet. App. 611 (1992). Because the AOJ failed to comply with the Board's June 2021 remand directives regarding VA and/or other Federal treatment records, a further remand is required. See Stegall, supra. Regarding private treatment records, the AOJ sent the appellant a letter asking her to provide a release for those records in June 2021. While the appellant did not respond to that request, and the letter was not returned as undeliverable, the Board notes that the address on the letter did not include her apartment number. Because it is not entirely clear whether she received the letter, the Board finds that another attempt to request releases for private treatment records should be made. As a final matter, the Board notes that despite not obtaining any additional treatment records, the AOJ nevertheless obtained VA addendum medical opinions in August and September 2021. The Board emphasizes that the AOJ must obtain further VA addendum medical opinions only if additional treatment records are obtained on remand. This matter is REMANDED for the following action: 1. Ask the appellant to provide a release for relevant records of treatment from Dr. D. at Virginia Heart in Alexandria, Virginia and from Dr. K. at Sun Medical Center in Annandale, Virginia, and to identify, and provide appropriate releases for, any other care providers who may possess additional evidence pertinent to the issue on appeal. If she provides the necessary release(s), assist her in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the appellant and her representative should be notified. The Board emphasizes that the appellant's apartment number must be included in the address of any letters sent to her. 2. Take action to ensure that the Veteran's post-service VA and other Federal treatment records (including records from Fort McPherson, Georgia, from Rader Health Clinic at Fort Myer, Virginia, and from Walter Reed Army Medical Center in Bethesda, Maryland) are associated with the record, following the procedures set forth in 38 C.F.R. § 3.159. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159 (c)(2). The evidence procured, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the appellant and her representative should be notified. The Board emphasizes that the records in question are post-service treatment records, and not STRs, and that no release from the appellant is required to obtain them. 3. If, and only if, as a result of the foregoing development, additional records are obtained and associated with the claims file, arrange to provide the record on appeal to the VA examiner who provided an opinion in this case in October 2019. After reviewing the expanded record, the examiner should prepare a supplemental report and offer an addendum opinion as to whether any of the newly obtained medical records impact the opinion(s) she offered in 2019. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, Associate 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.