Citation Nr: 0714786 Decision Date: 05/17/07 Archive Date: 06/01/07 DOCKET NO. 03-06 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for diabetes mellitus, claimed as due to herbicide exposure. 2. Entitlement to service connection for a circulatory disorder, claimed as secondary to diabetes mellitus. 3. Entitlement to service connection for glaucoma, claimed secondary to diabetes mellitus. 4. Entitlement to service connection for hypertension, claimed as secondary to diabetes mellitus. 5. Entitlement to service connection for kidney disease, claimed as secondary to diabetes mellitus. 6. Entitlement to service connection for interventricular bleeding, claimed as secondary to diabetes mellitus. 7. Entitlement to service connection for residuals of a stroke, claimed as secondary to diabetes mellitus. 8. Entitlement to service connection for a seizure disorder, claimed as secondary to diabetes mellitus. REPRESENTATION Veteran represented by: Robert V. Chisolm, Esq. WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD K. Morgan, Associate Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois (the RO). Procedural History The veteran served on active duty from October 1965 to July 1969. In February 2002, the RO received the veteran's claim of entitlement to service connection for diabetes mellitus. The veteran also claimed entitlement to service connection for a circulatory disorder, glaucoma, hypertension, kidney disease, interventricular bleeding, stroke and a seizure disorder, all claimed as secondary to diabetes mellitus. In the September 2002 rating decision referenced above, the RO denied the veteran's claims. Later that month, the veteran submitted a Notice of Disagreement with the September 2002 rating decision. In February 2003, the RO issued a Statement of the Case addressing only the issue of entitlement to service connection for diabetes. The veteran perfected an appeal of that matter by submitting a VA Form 9 in March 2003. In August 2003, the veteran presented sworn testimony during a videoconference hearing which was chaired by the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the veteran's VA claims folder. In December 2004, the Board remanded the issue of service connection for diabetes mellitus for additional evidentiary development. In addition, the Board remanded the issues of service connection for a circulatory disorder, glaucoma, hypertension, kidney disease, interventricular bleeding, stroke and a seizure disorder for the issuance of a Statement of the Case in accordance with Manlincon v. West, 12 Vet. App. 238 (1999). Pursuant to the Board's remand instructions, the RO issued an appropriate Statement of the Case in July 2005. In August 2005, the veteran perfected an appeal of those issues by submitting a VA Form 9. In September 2005, the veteran's representative filed a motion to advance this case on the docket, based on financial hardship. In October 2005, the Board granted the motion, pursuant to 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2006). In an October 2005 decision, the Board denied the veteran's claim. The veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a decision dated October 16, 2006, the Court vacated the Board's October 2005 decision and remanded this matter to the Board for development consistent with the Court's findings. The issues of entitlement to service connection for a circulatory disorder, glaucoma, hypertension, kidney disease, interventricular bleeding, stroke and a seizure disorder, all claimed as secondary to diabetes mellitus, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The veteran has been diagnosed with type II diabetes. 2. The veteran has verified service in the waters offshore of the Republic of Vietnam during the Vietnam war. For that service he was awarded a Vietnam Service Medal. CONCLUSIONS OF LAW 1. The conditions of the veteran's service meet the requirements for service or visitation in the Republic of Vietnam during the Vietnam War. 38 C.F.R. §§ 3.307(a)(6)(iii) (2006); Haas v. Nicholson, 20 Vet. App. 257 (2006). 2. The veteran's diabetes mellitus is presumed to be incurred as a result of the . veteran's presumed exposure to Agent Orange during service. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to service connection for diabetes mellitus, claimed as due to herbicide exposure. The veteran seeks entitlement to service connection for diabetes mellitus, which he contends is due to exposure to herbicides during the Vietnam War. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The Board observes that its October 2005 decision contained detailed discussion as to why the VCAA had been complied with (see the Board's October 2005 decision, pages 5-8 ). The Court's 2006 Order did not mention any alleged VCAA deficiencies [either as to adequacy of VCAA notice furnished by the RO or as to the Board's discussion of the adequacy of such notice in its October 2005 decision]. The Board believes that if any inadequacy had been present, this would have been noted in the Court's October 2006 decision. See Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992). In any event, as the benefit sought on appeal, entitlement to service connection of diabetes mellitus, is being granted, any deficiency in VCAA compliance is rendered moot. Relevant Law and Regulations Service connection - in general Applicable law provides that service connection will be granted if it is shown that the appellant suffers from a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered of disease contracted in the line of duty, in active military, naval, or air service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.P.R. § 3.303 (2006.). For certain: chronic disorders, including diabetes mellitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.P.R. §§ 3.307, 3.309 (2006). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Presumptive service connection - Agent Orange exposure A veteran who had active service in the Republic of Vietnam during the Vietnam War period will be presumed to have been exposed to an herbicide agent during that service. 38 U.S.C.A. § 1116(f) (West 2002). When such a veteran develops a disorder listed in 38 C.F.R.§ 3.309(e), which disorders have been shown to be caused by exposure to Agent Orange, to a degree of 10 percent or more within the specified period, the disorder shall be presumed to have been incurred during service. See 38 C.F.R. §§ 3.307, 3.309(e) (2006). The specified diseases include diabetes mellitus. 38 C.F.R. § 3.309(e) (2006). In Haas v. Nicholson, 20 Vet. App. 257 (2006), the Court held that the provisions in VA Manual M 21-1, Part III, 4.08 (k)(1)-(2) which addresses the meaning of "service in the Republic of Vietnam", are substantive rules that are the equivalent of VA regulations and must be considered. Specifically, the Court held that service in the Republic of Vietnam will be found if the veteran has received the Vietnam Service Medal. Analysis The veteran is seeking entitlement to service connection of diabetes mellitus, claimed as secondary to presumed herbicide exposure during the Vietnam War. Initial matter -the Haas stay As has been discussed in the Introduction above, the Court's October 2006 decision vacated the Board's October 2005 decision, which had denied the veteran's claim of entitlement to service connection for diabetes mellitus. The Court ordered that the Board readjudicate the veteran's claim in a manner consistent with Haas v. Nicholson, 20 Vet. App. 257 (2006). The Court in Haas in essence determined that service in the waters offshore of Vietnam and service which met the requirements for the issuance of the Vietnam Service medal constituted service in Vietnam for the purposes of presumed herbicide exposure. On September 21, 2006, the Secretary of Veterans Affairs imposed a stay at the Board on the adjudication of claims affected by Haas. Recently, the Court issued a decision in Ribaudo v. Nicholson, No. 06-2762 (U.S. Vet. App. Apr. 13, 2007). While the Court affirmed the Secretary's stay of cases affected by Haas, such as this one, the Court further found that the stay does not affect in any way the Secretary's ability to advance cases on the docket of the Board based on the compelling facts of an individual case. In light of the Court's holding in Ribaudo, VA has taken the position that cases, such as the veteran's, which have been advanced on the docket may be decided notwithstanding the general stay in effect for cases which may be impacted by the ultimate outcome of the pending appeal of Haas. Therefore, the Board will proceed to the merits of this claim. Discussion As discussed above, in general, in order for service connection to be granted three elements must be satisfied: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Hickson, 12 Vet. App. at 253. It is undisputed that the veteran suffers from Type 2 diabetes. Element (1) is satisfied. Turning to element (2), in-service incurrence of disease or injury, the service medical records do not indicate diagnosis or treatment of diabetes during service or in the one year § 3.309(a) presumptive period after service. The veteran himself does not contend that such is the case. However, veterans who can prove service in Vietnam are presumed to have been exposed to Agent Orange exposure, which comprises an in-service injury. See 38 U.S.C.A. § 1116(f). The central issue to this claim is whether or not the conditions of the veteran's service constituted service in the Republic of Vietnam as contemplated by the regulations concerning herbicide exposure. According to Haas, for claims such as this one [filed prior to the February 27, 2002 changes in VA M21-1, Part III, paragraph 4.08(k)(1)] "'service in Vietnam' will be conceded" if a veteran's records include receipt of the Vietnam Service Medal. See Haas, 20 Vet. App. at 260-261. The veteran's DD Form 214 shows receipt of the Vietnam Service Medal. Accordingly, based upon the standard articulated by the Court in Haas, the veteran's conditions of service meet the requirement for service in Vietnam during the Vietnam War. As such, exposure to Agent Orange is presumed. Element (2) is therefore met. With respect to element (3), medical nexus, diabetes mellitus is presumed to be service connected when a veteran has had presumed Agent Orange exposure. See 38 C.F.R. § 3.309(e) (2006). There is no medical evidence which serves to rebut that presumption. Element (3), medical nexus, has accordingly been satisfied on a presumptive basis. All three Hickson elements are therefore met, and service connection for diabetes mellitus is accordingly granted. Additional comments The Board notes in passing that the veteran has also alleged that he actually set foot in Vietnam. Because, according to Haas, the veteran's Vietnam service for the purpose of the Agent Orange presumptions is be shown via receipt of the Vietnam Service Medal, and because the benefit sought on appeal is being granted, the Board need not address this alternative argument. Finally, as has been alluded to above, the Haas decision, upon which both the Court's October 2006 order and the Board's current decision are based, appears to be the subject of further appellate litigation. The ultimate outcome of such litigation is unknown at this time. The Board wishes to make it clear that its grant of service connection for diabetes mellitus is based on the current law, i.e. Haas, and that such grant may be impacted by future appellate decisions. ORDER Entitlement to service connection of diabetes mellitus secondary to presumed in-service herbicide exposure is granted. REMAND 2. Entitlement to service connection for a circulatory disorder, claimed as secondary to diabetes mellitus. 3. Entitlement to service connection for glaucoma, claimed secondary to diabetes mellitus. 4. Entitlement to service connection for hypertension, claimed as secondary to diabetes mellitus. 5. Entitlement to service connection for kidney disease, claimed as secondary to diabetes mellitus. 6. Entitlement to service connection for interventricular bleeding, claimed as secondary to diabetes mellitus. 7. Entitlement to service connection for residuals of a stroke, claimed as secondary to diabetes mellitus. 8. Entitlement to service connection for a seizure disorder, claimed as secondary to diabetes mellitus. The veteran has also claimed entitlement to service connection for a circulatory disorder, glaucoma, hypertension, kidney disease, interventricular bleeding, residuals of a stroke and a seizure disorder, all claimed as secondary to diabetes mellitus. Because service connection has now been established for diabetes mellitus, the secondary service connection claims must be appropriately developed by the agency of original jurisdiction. Such development must include review of additional medical evidence recently submitted directly to the Board by the veteran's attorney. Accordingly, the case is REMANDED for the following action: After completing any additional development which it deems necessary, VBA should readjudicate the veteran's claims of entitlement to service connection for a circulatory disorder, glaucoma, hypertension, kidney disease, interventricular bleeding, residuals of a stroke and a seizure disorder, all claimed as secondary to diabetes mellitus. If any benefit sought on appeal remains denied, the veteran and his representative should be furnished with copies of a supplemental statement of the case and given the opportunity to respond thereto. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ______________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs