Citation Nr: 21025854 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 18-16 651 DATE: April 29, 2021 REMANDED Entitlement to service connection for a low back disability, to include under the provisions of 38 U.S.C. § 1151 is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for diabetes mellitus, type 2 is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1952 to July 1954. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) during an October 2018 videoconference hearing. A transcript of that hearing is associated with the claims file. This matter was remanded by the Board for further development in a May 2020 decision. Unfortunately, there has not been substantial compliance with remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a low back disability, to include under the provisions of 38 U.S.C. § 1151 is remanded. 2. Entitlement to service connection for a left knee disability is remanded. 3. Entitlement to service connection for diabetes mellitus, type 2 is remanded. The Veteran’s service connection claims for a low back disability, to include under the provisions of 38 U.S.C. § 1151, for a left knee disability, and for diabetes mellitus, type 2 were previously remanded in a May 2020 Board decision. The Board specifically instructed that due to VA examinations of March 2020 – which were found inadequate – addendum VA opinions were to be obtained addressing the prior deficiencies. Review of the record reflects that instead of forwarding the Veteran’s claims file to appropriately qualified VA examiners, scheduling requests for new examinations were sent to the Veteran. In response to said requests, the Veteran correctly stated that he had already completed his examinations previously. As a result, these VA examinations were cancelled. There is no evidence that addendum VA opinions were sought or that the AOJ otherwise attempted to work with the Veteran to explain the need for in-person examinations. There has thus not been substantial compliance with the Board’s previous remand directives. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: Forward the Veteran’s entire claims file, including a copy of the May 2020 as well as this remand to appropriately qualified providers to determine the nature and etiology of the Veteran’s back disability, left knee disability, and diabetes mellitus, type 2. Each examiner must note that the claims file has been reviewed. If an in-person or telehealth examination of the Veteran is required by an examiner to respond to the inquiries below, one should be scheduled and the need for such in-person examination explained to the Veteran. For the Veteran’s back disability, the examiner must: (a.) Identify all disabilities of the low back currently found to be present, to include degenerative joint and degenerative disc disease. (b.) For each low back disability diagnosed, provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability had its onset in service, within one year of service separation, or is otherwise etiologically related to service. In providing the requested opinion, the examiner must specifically consider and discuss the Veteran’s competent and credible reports of back pain since service discharge. (c.) The examiner must also provide a comprehensive discussion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran suffered an additional back disability as a result of VA hospital care, medical or surgical treatment, examination, training, or rehabilitative service. If so, the examiner should also opine as to whether the proximate cause of such disability was: (i) carelessness, negligence, or lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or (ii) an event not reasonably foreseeable. The examiner must specifically address the Veteran’s lay testimony of record. For the Veteran’s left knee disability, the examiner must: (a.) Identify all disabilities of the left knee, to include the Veteran’s competent reports of pain. The examiner is notified that pain causing functional loss is a disability for VA purposes. (b.) For each left knee disability, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability had its onset in service, within one year of service separation, or is otherwise medically related to service. In providing the requested opinion, the examiner must specifically consider and discuss the Veteran’s competent and credible reports of left knee pain both during service and since service discharge. For the Veteran’s diabetes mellitus, type 2, the examiner must: Opine as to whether it is at least as likely as not (a 50 percent or greater probability) that diabetes mellitus, Type II had its onset in service, within one year of service separation, or is otherwise medically related to service. The examiner must discuss the Veteran’s contentions regarding being told shortly after service that he was “eating too much sugar” and was treated with medication for such within a year of service separation. A fully explained rationale is requested for all opinions. The examiner is advised that a lack of evidence in the STRs is insufficient rationale to support a negative nexus opinion, particularly where, as here, such records are simply unavailable. The examiner is also reminded that he or she must discuss, and must not discount, the Veteran’s lay statements as set forth above. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Comninos, Georgio 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.