Citation Nr: 1425276	
Decision Date: 06/05/14    Archive Date: 06/16/14

DOCKET NO.  08-08 505	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for Diabetes Mellitus.

2.  Entitlement to service connection for diabetic retinopathy, so including as secondary to the Diabetes Mellitus.

3.  Entitlement to service connection for hypertension, also including as secondary to the Diabetes Mellitus but also service-connected ischemic heart disease.

4.  Entitlement to service connection for diabetic peripheral neuropathy, so as well including as secondary to the Diabetes Mellitus.

5.  Entitlement to an initial compensable rating for bilateral hearing loss.

6.  Entitlement to a total disability rating based on individual unemployability (TDIU).



REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

C. Kedem, Counsel


INTRODUCTION

The Veteran served on active duty from March 1967 to March 1971.

He appealed to the Board of Veterans' Appeals (Board/BVA) from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied his claims of entitlement to service connection for diabetes, diabetic retinopathy, and hypertension.  He also appealed a July 2006 rating decision in which the RO granted service connection for bilateral hearing loss but assigned a 0 percent (i.e., noncompensable) initial rating for this disability.  He wants a higher initial rating.  See Fenderson v. West, 12 Vet. App. 119 (1999).

In the interest of clarity, the Veteran has suffered from Type I Diabetes Mellitus for decades.  In adjudicating his claim, however, the RO has referred to both Type I and Type II (adult-onset) Diabetes Mellitus, as there was some confusion over the precise sort of diabetes he has.  But in his May 2005 claim for benefits and in his July 2006 notice of disagreement (NOD), he claimed entitlement to service connection specifically for Type II Diabetes Mellitus.  In deciding his claim, however, like the RO did, the Board must consider all potential bases of entitlement, so must consider both Type I and Type II Diabetes Mellitus.  See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) ("...where the claimant has raised an issue of service connection, the evidence in the record must be reviewed to determine the scope of that claim."); Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (In adjudicating a claim the Board must consider all potential bases of entitlement).  VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded.  Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the U. S. Court of Veterans Appeals (Court/CAVC) has jurisdiction by virtue of an NOD satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof).

In February 2014, in support of his claims, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board.  This type of hearing is often and more commonly referred to as a Travel Board hearing.  A transcript of the proceeding has been associated with the claims file, so is of record.  

Following the hearing the Board held the record open an additional 60 days to allow the Veteran time to obtain and submit additional supporting evidence.  He since has, in the way of a February 2014 Diabetes Mellitus Disability Benefits Questionnaire (DBQ).  And partly because of the receipt of this additional medical evidence, the Board is granting his claim of entitlement to service connection for his Diabetes Mellitus, but also his claims for the secondary complications of it - namely, his retinopathy and hypertension, but even aside from those his peripheral neuropathy.  The DBQ also indicates that his Diabetes Mellitus and these several complications of it render him totally disabled and unable to work, so there is a derivative TDIU claim that is being granted as well.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).

The remaining claim of entitlement to an initial compensable rating for the bilateral hearing loss requires further development before being decided on appeal.  So, rather than immediately deciding, the Board is remanding this sole remaining claim to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran served in the Republic of Vietnam during the Vietnam Era, so it is presumed he was exposed to herbicides (including the dioxin in Agent Orange) while there.

2.  The evidence is in relative equipoise as to whether he has Type I versus Type II Diabetes Mellitus, so it is just as likely as not he has one versus the other or both; regardless, Type I Diabetes Mellitus was diagnosed within a year of his discharge from service, and in this circumstance the diabetes is presumptively associated with the service, irrespective of whether Type I or Type II, absent affirmative evidence to the contrary.

3.  Type II Diabetes Mellitus (though not also Type I) also is presumptively associated with Agent Orange exposure during service.

4.  The Veteran's retinopathy, hypertension and peripheral neuropathy are complications of his Diabetes Mellitus.

5.  His Diabetes Mellitus and these several complications are so severe that they render him totally disabled and unable to work, meaning preclude him from obtaining or maintaining employment that could be considered substantially gainful versus just marginal in comparison, when also considering his level of education and prior work experience and training, but not disabilities that are not service connected.


CONCLUSIONS OF LAW

1.  Resolving all reasonable doubt in his favor, the Veteran's Diabetes Mellitus was presumptively incurred during his service, either because it first manifested within the initial year after his service or on account of his presumed exposure to Agent Orange in Vietnam during the Vietnam Era.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013).

2.  His retinopathy, hypertension and peripheral neuropathy are secondary to his Diabetes Mellitus - meaning proximately due to, the result of, or aggravated by it.  38 C.F.R. § 3.310(a) and (b) (2013).

3.  The criteria also are met for a TDIU.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 and 4.19 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in Vietnam during the Vietnam Era.  38 C.F.R. § 3.2.  As such, it is presumed that he was exposed to herbicides while there that included the dioxin in Agent Orange.  38 C.F.R. §§ 3.2, 3.307 (2013).  Service connection for Type II Diabetes Mellitus is granted on a presumptive basis for Veterans presumptively exposed to Agent Orange during the Vietnam Era.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e).

That the Veteran served in Vietnam is not in dispute.  The question partly at issue is whether he suffers from Type II Diabetes Mellitus.  He was diagnosed with Type I Diabetes Mellitus many years ago, in 1972.  That is significant because Diabetes Mellitus (regardless of whether it is Type I or Type II) also will be presumed to have been incurred in service if manifested to a compensable degree, meaning to at least 10-percent disabling, within a year of the Veteran's discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  

Therefore, because that initial diagnosis was in 1972, so within a year of his discharge from service in 1971, this too provides reason for presumptively relating his diabetes to his service - again, irrespective of whether it is Type I or Type II.

That notwithstanding, the Veteran appears to contend that he later developed Type II Diabetes Mellitus in addition to Type I.  The record contains two opposing medical opinions in this regard.  In a July 2006 statement, ASK, M.D., a private practitioner who had treated the Veteran for a number of years explained her conclusion that the Veteran was suffering from Type I Diabetes Mellitus and Type II Diabetes Mellitus simultaneously.  Specifically, she indicated that the fact that he displayed insulin resistance and responded to Actos revealed that he had Type II Diabetes Mellitus.  In October 2007, a VA physician opined that there was no objective evidence supporting a diagnosis of Type II Diabetes Mellitus.  She explained that there was no way to measure insulin resistance and that the requirement for increased insulin was due to the likely development of insulin antibodies in a diabetic of more than 30 years.

The Board finds that both Dr. ASK and the VA physician are equally competent to comment on whether the Veteran has Type I or Type II Diabetes Mellitus or both, especially since they both have the medical expertise to comment on such matters.  The Board, furthermore, finds each of the opposing opinions equally persuasive, as each is justified by a cogent rationale.  Moreover, the most recently submitted Diabetes Mellitus DBQ dated in February 2014 indicates the Veteran likely has both Type I and Type II ("DM1 and DM2").  Ultimately, though, for the reasons and bases discussed, there is legitimate reason for presumptively associating his diabetes with his military service, regardless of whether it is characterized as Type I or Type II or both.  In this circumstance, his claim must prevail.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).


What is additionally worth noting, however, is that the February 2014 Diabetes Mellitus DBQ also confirms the Veteran has several complications of his diabetes - namely, retinopathy, hypertension and peripheral neuropathy.  So his retinopathy, hypertension and peripheral neuropathy are secondary to his Diabetes Mellitus - meaning proximately due to, the result of, or aggravated by it.  38 C.F.R. § 3.310(a) and (b) (2013).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Consequently, not only is service connection being granted for the underlying Diabetes Mellitus, but also for these several secondary complications of retinopathy, hypertension and peripheral neuropathy.

Moreover, the February 2014 Diabetes Mellitus DBQ further indicates, among other things, that the diabetic peripheral neuropathy is so severe that "[the Veteran] can barely walk."  Indeed, according to this commenting examiner, the Diabetes Mellitus and these several complications are so severe that they render the Veteran "totally disabled [and] unable to work."  The Board therefore is also granting a TDIU inasmuch as his inability to work has been attributed to these adjudicated service-connected disabilities.  38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 and 4.19.  See also Mayhue v. Shinseki, 24 Vet. App. 273 (2011).

VA has a "well-established" duty to maximize a claimant's benefits.  See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008).  This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C.A § 1114.  See Bradley at 294 (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim").

The Veteran already has a 100 percent schedular rating for his ischemic heart disease (IHD) and has effectively since June 10, 2011.  The Board, as mentioned, additionally is granting a TDIU in this decision.  No additional disability compensation may be paid when a total schedular disability rating is already in effect.  On June 7, 1999, VA's General Counsel issued VA O.G.C. Prec. Op. No. 6-99 addressing questions related to whether a claim for a TDIU may be considered when a schedular 100 percent rating is already in effect for one or more service-connected disabilities.  Essentially, that OGC precedent opinion held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU, requiring dismissal of the TDIU claim.  See also Green v. West, 11 Vet. App. 472, 476   (1998).

But in view of the decision in Bradley v. Peake, 22 Vet. App. 280 (2008), which took a position contrary to the one reached in that OGC precedent opinion, the General Counsel took action to withdraw that prior opinion.  Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Bradley decision recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of SMC, which is contrary to the holdings in VA O.G.C. Prec. Op. No. 6-99.


ORDER

Service connection for Diabetes Mellitus is granted.

But service connection also is granted for the several complications, namely, for the associated retinopathy, hypertension, and peripheral neuropathy.

As well, a TDIU is granted.



REMAND

Further development is necessary before the Board may adjudicate the remaining claim for a compensable rating for the bilateral hearing loss.  Accordingly, this remaining claims is being REMANDED for the following additional development and consideration:

1.  First obtain all outstanding VA treatment records dated from October 25, 2007 to the present and associate them with the claims file so they may be considered.  The Veteran says he has received ongoing treatment at the VA Medical Centers (VAMCs) in Pensacola, Florida, Biloxi, Mississippi, and Mobile, Alabama.

2.  Upon receipt of all additional records, schedule the Veteran for another VA compensation examination reassessing the severity of his bilateral hearing loss since he contends it is much worse than it was during his prior VA examination in June 2006.  The claims file, including a complete copy of this remand, must be made available to the examiner in conjunction with the examination.  The examiner must review all pertinent documents in the claims file concerning the history of this service-connected disability.  All appropriate tests and studies should be performed, including especially those required to address the applicable rating criteria (audiogram and Maryland CNC speech recognition).  In reassessing the severity of this service-connected disability, the examiner must describe fully the functional effects of this hearing loss disability, including in terms of the Veteran's occupational functioning and daily activities.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).

It also is essential the examiner provide explanatory rationale, if necessary citing to specific evidence in the file and/or the results of his/her evaluation of the Veteran supporting conclusions.

3.  Then readjudicate this remaining claim in light of this and all other additional evidence.  If this claim continues to be denied or is not granted to the Veteran's satisfaction, send him and his representative an SSOC and give them time to submit additional evidence and/or argument in response to it before returning the file to the Board for further appellate consideration of this remaining claim.

The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding.  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 United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs