Citation Nr: 21040286 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-57 202 DATE: July 3, 2021 REMANDED The issue of entitlement to service connection for diabetes mellitus (diabetes), to include as secondary to obstructive sleep apnea (OSA), is remanded for further development. REASONS FOR REMAND The Veteran served on active duty from September 1982 to July 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Jurisdiction of the Veteran's claims file currently resides with the New Orleans, Louisiana, RO. In July 2019, the Veteran testified at a Board hearing before the undersigned. A transcript of the hearing is of record. In December 2019, the Board determined that new and material evidence had been received to reopen the issues of service connection for left knee and neck conditions. The Board then remanded the issues of service connection for diabetes, sleep apnea, a right knee condition, a left knee condition, and a neck condition for additional development. Subsequently, in an April 2020 rating decision, a VA RO granted the Veteran service connection for OSA, cervical strain, and left knee strain with meniscal tear and osteoarthritis. These grants of service connection constituted a full award of the benefits sought on appeal with respect to those issues. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date). Consequently, the issues of service connection for sleep apnea, a neck condition, and a left knee condition were no longer in appellate status. Then, in January 2021, the Board granted service connection for a right knee disability. The Board then remanded the issue of service connection for diabetes for the provision of an additional VA medical opinion. The case has returned to the Board for appellate review. Service Connection for Diabetes The Board finds that the issue of entitlement to service connection for diabetes must be remanded due to lack of substantial compliance with the January 2021 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, in January 2021, the Board remanded the issue of service connection for diabetes for the provision of an additional VA medical opinion. In January 2021, the Board indicated that the opinion provided on remand was to address whether the Veteran's current diabetes was (1) proximately caused, or (2) aggravated by his service-connected OSA. The Board then specified that, in providing the opinion, it was not a barrier to service connection if the record demonstrated that the Veteran's diabetes preexisted his now service-connected OSA. See Frost v. Shulkin, 29 Vet. App. 131, 134 (2017) (stating that there was not a temporal requirement inherent in 38 C.F.R. § 3.310(a) for claims for service connection on a secondary basis). Following the January 2021 remand, an additional VA medical opinion was provided in February 2021. However, in providing a negative opinion regarding causation, the February 2021 VA clinician relied, in part, on diabetes' onset preceding OSA. As this rationale was in direct conflict with the January 2021 Board remand, the Board must once again remand the issue of entitlement to service connection for diabetes for the provision of another VA medical opinion. See Stegall, supra. The matter is REMANDED for the following action: Send the Veteran's claims file to an appropriate VA clinician for a medical opinion about the nature and etiology of the Veteran's diabetes. After reviewing the claims fileand performing a physical examination if deemed necessarythe clinician should address the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's diabetes is proximately due to his OSA (b.) Please state it is at least as likely as not (50 percent probability or more) that the Veteran's diabetes was aggravated (worsened beyond natural progression) by his OSA. In providing the above opinions, the clinician is reminded that diabetes' onset prior to OSA is not a bar to providing a positive opinion. The clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician must provide a complete rationale for any opinion rendered. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.