Citation Nr: 22012169 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 17-16 006 DATE: March 2, 2022 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 Navy from May 1971 to November 1974, which includes verified service at the U-Tapao Royal Thai Air Force Base and Camp Lejeune. This claim comes before the Board of Veterans' Appeals (Board) on appeal of an August 29, 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. By way of background, the Veteran perfected his appeals for service connection for diabetes mellitus type II and prostate cancer when his VA Form 9 was received on March 21, 2017. Any other issue listed on the August 2013 rating decision is accordingly no longer on appeal as it is not listed on the VA Form 9. Furthermore, the prostate cancer claim was subsequently denied in a December 28, 2020 Board decision. As a result, that claim is no longer on appeal either. Now that only the claim for diabetes remains on appeal, the Board accepts jurisdiction of the claim, but ultimately cannot escape the conclusion that a subsequent remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Diabetes Mellitus, Type II The Board sincerely regrets additional delay that may be incurred as a result of this remand. The Veteran has continuously prosecuted a claim for service connection for diabetes mellitus type II since it was received on September 16, 2011. The claim was remanded in an August 11, 2014 Board remand, because even though the Veteran missed a scheduled examination, the absence was for good cause because the examination was scheduled on a date when the AOJ knew the Veteran would be unavailable. See generally McLendon v. Nicholson, 20 Vet. App. 79 (2006); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; contra Wood v. Derwinski, 1 Vet. App. 191 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). To date, the Veteran has not been afforded his VA examination pertaining to diabetes mellitus type II, for which the Veteran's claim on appeal was remanded in August 2014. As a result, the Board is precluded from adjudicating the issue on appeal, because the Veteran has not been afforded substantial compliance with previous remand directives. See Stegall, supra. The claim is remanded accordingly. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, afford the Veteran an appropriate VA examination to confirm the diagnosis of diabetes mellitus type II and to address whether it is at least 50 percent likely that it is etiologically related to service, which includes, but is not limited to, verified service at U-Tapao Royal Thai Air Force Base and Camp Lejeune. Because the Veteran was previously scheduled for a VA examination on a date when it was known he was unavailable, the AOJ should confirm his availability. The record, to include a complete copy of this remand, must be made available to the examiner. All indicated tests and studies should be accomplished, with all findings made available to the requesting examiner prior to the completion of their report, and all clinical findings should be reported in detail. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (A) Is at least as likely as not (50 percent or greater probability) that the Veteran's diabetes mellitus, type II had its onset during any period of service, or is otherwise related to such period of service, to include any hazardous exposure sustained during service? The examiner must be sure to address whether it is at least the Veteran's verified service at U-Tapao Royal Thai Air Force Base and Camp Lejeune and any exposure to environmental hazards during his active service. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resorting to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. The Veteran is informed that it is his responsibility to report for any scheduled examinations and to cooperate in the development of the claim and that the consequences for failure to report for any VA examination without good cause may include denial of a claim. See 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record. Thereafter, if the claim for service connection for diabetes mellitus type II should remain not granted in full, issue the Veteran and his representative a Supplemental Statement of the Case (SSOC) and afford them an adequate opportunity to respond to it in accord with all applicable appellate procedures. Mariah N. Sim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.