Citation Nr: 21029855 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-38 229 DATE: May 17, 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 May 1969 to January 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran and his wife testified at a February 2019 hearing held before the undersigned at the RO. A transcript of the hearing is associated with the claims file. The appeal was previously before the Board in August 2019 and April 2020. On both occasions, it was remanded for further development. Most recently, April 2020 instructions required that the Veteran be afforded a VA diabetes mellitus addendum opinion, addressing the Veteran's lay statements as well as medical studies that were provided by his representative. An addendum opinion was obtained in April 2020, and the matter is again before the Board. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. The Board finds that the Agency of Original Jurisdiction (AOJ) did not substantially comply with the April 2020 remand directives. As such, another remand is warranted. The Veteran contends that his currently diagnosed type II diabetes is caused by exposure to chemicals in service, stating that he was exposed to chemicals including trichlorethylene, PCBs, hydraulic fluids, and benzene. He also contends that his diabetes is due to service apart from chemical exposure, and has stated that his diabetes is possibly related to consuming five cartons of milk at breakfast, lunch, and dinner, to which he would add sugar in order to help with dizziness. He has also stated that his diabetes was caused by the "highly stressful situations" that he experienced in service. He has alternatively alleged that his diabetes is secondary to coronary artery disease and hypertension. In the April 2020 directives, the examiner was instructed to consider the medical studies that had been referenced in the March 2020 informal hearing presentation (IHP). The first study indicates that exposure to halogenated persistent organic pollutants (POPs), including polychlorinated biphenyls (PCBs) can contribute to the pathology of inflammatory diseases such as diabetes. The second study suggests a "general positive pattern" between exposure to POPs and diabetes. Although the examiner noted that records had been reviewed in the April 2020 addendum opinion, there was no indication that the identified studies had been considered. Rather, the examiner appears to have merely copied verbatim the rationale that she had provided in the December 2019 medical opinion, restating that "while research efforts have been made to show the adverse effects of trichloroethylene, there is no definitive evidence to support Type II Diabetes is caused by trichloroethylene exposure." The examiner proceeded to recount the lay statements provided by the Veteran, and stated that, "Diabetes is a multifactorial condition, a combination of things contribute, genes and family history, hormones, obesity, lack of exercise, poor diet." She then concluded that the diabetes was less likely than not incurred in or caused by service. However, it is unclear how this generalized conclusion regarding the etiology of diabetes specifically addresses the Veteran's lay statements or supports her negative finding regarding a nexus to service. Accordingly, the addendum opinion provided in April 2020 addressing direct service connection is inadequate, and another opinion must be obtained upon remand. Additionally, in the May 2021 IHP, the Veteran's representative introduced another study for review which suggests that benzene exposure may cause insulin resistance. Such should also be reviewed upon remand. Furthermore, since the prior remand, VA treatment records refer to continued private treatment f for diabetes mellitus. VA is required to assist a claimant by taking all reasonable action in obtaining medical records that are necessary to decide a claim. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. This is a continuing duty. Accordingly, attempts to obtain these private records should be undertaken. The matters are REMANDED for the following action: 1. Contact the Veteran and request properly executed releases for any private care providers who have treated him for diabetes. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 2. Thereafter, obtain an addendum VA diabetes mellitus medical opinion from an examiner other than the one who provided the December 2019 and April 2020 opinions. The claims file must be reviewed in conjunction with such. The reviewer must opine as to whether the Veteran's diabetes mellitus is at least as likely as not caused or aggravated by service, to include exposure to chemicals including trichlorethylene, PCBs, hydraulic fluids, and benzene, including coronary artery disease and/or hypertension. The reviewer must consider and discuss the articles referenced in the March 2020 IHP, as well as the article referenced in the May 2021 IHP. The reviewer must also consider and discuss the Veteran's statements regarding diet and highly stressful situations in service. The reviewer must provide a full and complete rationale for all opinions. 3. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issue. If the benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.P. Faris 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.