Citation Nr: 22017357 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-46 720 DATE: March 24, 2022 REMANDED Entitlement to initial rating in excess of 20 percent for diabetes mellitus, type II (diabetes) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1969 to September 1971. This matter is before the Board of Veterans' Appeals(Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Board remanded the case in December 2021 for additional evidentiary development, including for the provision of a VA examination to determine the current severity of his service-connected diabetes mellitus. See December 2021 Board Decision. That development having been completed, the case has returned to the Board. Finally, as emphasized in the prior Board remand, the AOJ is advised that the Veteran's representative has made it known to the Board that the Veteran "lives off the grid" and deals with severe anxiety due to Covid-19. All reasonable efforts should be made to accommodate these concerns of the Veteran and additional efforts may be necessary to contact and schedule the Veteran for an examination or telehealth interview. 1. Entitlement to initial rating in excess of 20 percent for diabetes is remanded is remanded. Unfortunately, another remand is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. As indicated in the introduction above, the Board's December 2021 remand directed the AOJ to schedule the Veteran for a VA examination to evaluate his service-connected diabetes. See December 2021 Board Remand. In addition to assessing the current severity of the Veteran's diabetes, the VA examiner was instructed to provide an opinion as to "whether it is at least as likely as not that the Veteran's inability to drive a commercial truck is a medically necessary regulation of activity to avoid a strenuous occupational activity." Id. Although the Veteran was afforded a VA diabetes examination in January 2022, the examining VA clinician did not provide the requested opinion or address in any way the Veteran's assertions concerning the regulation of his activities to control his diabetes. See January 2022 VA Diabetes Mellitus Disability Benefits Questionnaire (DBQ). See also September 2016 Substantive Appeal (VA Form 9) (stating that the Veteran's "medical records clearly demonstrate additional regulation of activities to help control his diabetes, including but not limited to his inability to drive a commercial truck"); May 2015 Notice of Disagreement (VA Form 21-0958) (stating that he was required to surrender his commercial driver's license due to the fact that his diabetes necessitated the use of insulin for control, and arguing that this amounted to a regulation of activities for purposes of determining the appropriate initial rating). Accordingly, the Board cannot conclude that there has been substantial compliance with the December 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, remand is required. The matter is REMANDED for the following action: 1. Obtain and associate with the claims folder any outstanding VA treatment records. 2. Thereafter, upon receipt of all additional records, and any additional notification and/or development deemed warranted, send the Veteran's claims file to an appropriate clinician for an addendum opinion as to the nature and extent of his claimed regulation of activities due to his service-connected diabetes. Reexamination of the Veteran is not needed unless deemed necessary by the examiner providing the opinion in this case. If an examination is required, it may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file, including specifically a copy of this REMAND, has been reviewed. After reviewing the Veteran's full history by conducting a complete review of the claims file (including all available lay statements and evidence, medical treatment records, and examination reports, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's inability to drive a commercial truck is a medically necessary regulation of activity to avoid a strenuous occupational activity. In providing the requested opinion, the examiner must specifically consider and address the statements and evidence submitted by the Veteran and the Veteran's representative, including in May 2015 and September 2016, regarding his inability to drive a commercial truck due to the symptoms of and required treatment for his diabetes. See Substantive Appeal (VA Form 9) (stating that the Veteran's "medical records clearly demonstrate additional regulation of activities to help control his diabetes, including but not limited to his inability to drive a commercial truck"); May 2015 Notice of Disagreement (VA Form 21-0958) (stating that he was required to surrender his commercial driver's license due to the fact that his diabetes necessitated the use of insulin for control, and arguing that this amounted to a regulation of activities for purposes of determining the appropriate initial rating). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 3. Following completion of the above directive, review the claims file to ensure compliance with this remand. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.