Citation Nr: 21031631 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 10-34 155 DATE: May 24, 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 June 1980 to September 2004, to include service in Southwest Asia. This matter is before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, July 2019, and November 2019, the Board remanded the Veteran's appeal to the RO for further evidentiary development. 1. Entitlement to service connection for diabetes mellitus, type II, is remanded. The Veteran seeks service connection for diabetes mellitus type II, which he contends was caused by anthrax vaccines and/or exposure to burn pits. In November 2019, the Board remanded this matter for a new VA medical opinion after concluding that previous medical opinions were inadequate. The examiner was instructed to address and reconcile the articles submitted by the Veteran in May 2018 that appear to counter the conclusions of the VHA examiner; and discuss all lay statements and prior medical opinions, including the July 2010 VA examination report and April 2018 VHA opinion. Unfortunately, the Board finds that there has not been substantial compliance with the Board's November 2020 remand directive. In February 2020, the physician tasked with rendering an opinion regarding the etiology of the Veteran's diabetes mellitus concluded, "There is no preset connection that associates burn pit exposure and anthrax vaccine as nexuses for Diabetes type II. Therefore, it is less likely than not that the veteran's diabetes type II was caused by his burn pit exposure and antrax [sic] vaccine." No further rationale was provided. The examiner did not elaborate on why he concluded that there was "no preset connection that associates burn pits and anthrax vaccine" with the development of diabetes mellitus. Although the examiner listed all the relevant evidence, he did not actually discuss it or its probative value as it relates to the Veteran's contention that his diabetes mellitus is related to service. Asked to elaborate, the examiner wrote in March 2021, "All articles, lay statements, July 2010 VA exam report, VHA opinion from April 2018 and my previous opinion from 2/21/2021 included in medical records were reviewed and used in consideration for my opinion. There is no conclusive pathophysiological nexus to connect DM II as an autoimmune disorder or due to burn pits and/or anthrax vaccines. Veteran has a preponderance of evidence that supports parental diabetes diagnosis; therefore it is at least as likely as not that the veteran has over a 50% chance being diagnosed with DM II due to family history." Unfortunately, the examiner again failed to explain why he discounted the evidence submitted by the Veteran in support of his claim, or at least found other evidence more probative, and failed to comply with the Board's remand instructions. A previous remand confers on the claimant, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, remand is necessary in order to ensure substantial compliance with the Board's prior remand directive. The matters are REMANDED for the following action: 1. Obtain an addendum VA medical opinion from an appropriate clinician to address the etiology of the Veteran's diabetes mellitus, type II. The claims file should be made available to the reviewing clinician. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the currently diagnosed diabetes mellitus, type II, was caused by the Veteran's exposure to burn pits and/or anthrax vaccinations or is otherwise related to service. In doing so, the reviewer should address and reconcile the articles submitted by the Veteran in May 2018 that appear to counter the conclusions reached by the April 2018 VHA opinion, concerning whether diabetes mellitus type II is an autoimmune disorder; (Continued on the next page) The reviewer should also discuss all lay statements and prior medical opinions associated with the record, including the July 2010 VA examination report and April 2018 VHA opinion. A complete rationale should be provided for each opinion, citing to specific evidence of the record, as necessary. James A. DeFrank Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.D. Anderson, 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.