Citation Nr: 0801798 Decision Date: 01/16/08 Archive Date: 01/29/08 DOCKET NO. 92-17 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE 1. Entitlement to service connection for a gastrointestinal disorder, claimed as a stomach disorder, gallbladder disease, or pancreatitis. 2. Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Leo P. Dombrowski, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The veteran had active service from August 1965 to August 1967. In a November 1991 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO)denied service connection for a "stomach disorder." In a December 1991 rating decision the RO determined that new and material evidence had not been submitted to reopen the claim for service connection for gallbladder disease, and in March 1994 (following the publication of new regulations pertaining to Agent Orange related diseases) the RO again denied service connection for pancreatitis. The veteran perfected an appeal of the RO's November 1991 denial of service connection for a "stomach disorder," but he did not separately perfect an appeal of the denials of service connection for gallbladder disease and pancreatitis. In his February 1992 substantive appeal, however, he defined the disabilities for which he had claimed service connection as a "stomach disorder" as the gallbladder disease and pancreatitis. The Board remanded the claim to the RO in December 1994 for further development and consideration. In an August 2001 rating decision, the RO denied entitlement to service connection for diabetes mellitus based on the substantive merits of the claim. In a December 2003 decision, the Board found that new and material evidence was submitted to reopen the claim of entitlement to service connection for a gastrointestinal disorder, claimed as a stomach disorder, gallbladder disease, or pancreatitis. The Board denied that claim on the merits and entitlement to service connection for diabetes mellitus on the merits. The veteran entered a timely appeal to the U. S. Court of Appeals for Veterans Claims (Court). By Order dated in October 2006, the Court remanded the decision to the Board for readjudication, finding that the Board erred in adjudicating the veteran's claim for service connection for a gastrointestinal disorder, claimed as a stomach disorder, gallbladder disease, or pancreatitis, before this issue has been addressed by the RO. The diabetes mellitus claim was also remanded, because the Board erred in not providing adequate reasons and bases regarding whether the veteran was entitled to the presumption of service connection for diabetes mellitus due to Agent Orange exposure. The Court also noted that there was no medical opinion regarding this matter. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board has determined that new and material evidence has been presented to reopen the veteran's claim for entitlement to service connection for a gastrointestinal disorder, claimed as a stomach disorder, gallbladder disease, or pancreatitis. The RO has not had the opportunity to undertake novo review. The veteran's service personnel records indicate that he served in Vietnam from March 1966 to March 1967, and he is presumed to have been exposed to Agent Orange while serving in Vietnam. Diseases, such as Type 2 diabetes (also known as type II diabetes mellitus or adult-onset diabetes), associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). The presumption may be rebutted by affirmative, though not necessarily conclusive, evidence to the contrary. 38 U.S.C.A. § 1113(a); 38 C.F.R. § 3.307(d). The veteran's service medical records disclose that during the July 1967 allergy study he reported having had some heartburn while serving in Vietnam, but no other abnormalities. When being examined for separation from service in August 1967, he reported having stomach, liver, or intestinal trouble. In elaborating on that report, the examiner noted that the veteran had had frequent indigestion while serving in Vietnam, but that he was not then having any problems. Examination of the abdomen and viscera was normal. The service medical records are silent for any complaints or clinical findings attributed to gallbladder disease, pancreatitis, or diabetes mellitus. The evidence also includes an October 1970 hospital summary showing that the veteran complained of severe abdominal pain that began on the day of admission. With the exception of his consumption of four or five beers on the previous day, his physician could find no precipitating cause for the abdominal pain. His symptoms were then diagnosed as pancreatitis. The report of an April 1971 hospitalization for acute pancreatitis indicates that his physician then found that he was markedly overweight, and instructed him to lose weight. The physician also advised him to avoid alcohol completely. A June 1971 hospital summary documents the third attack of severe upper abdominal pain, which was diagnosed as pancreatitis. That summary shows that the first attack of pancreatitis occurred in October 1970, and the second attack in April 1971. The veteran underwent treatment for acute pancreatitis and chronic cholecystitis from July 1971 to January 1972. Those records indicate that the etiology of the pancreatitis was undetermined. Exploratory surgery was performed in July 1971, which revealed inflammation of the pancreas and gallbladder, but no evidence of gallstones. The gallbladder was removed, as was a portion of the pancreas. Biopsies following the surgery were diagnostic of chronic cholecystitis and pancreatitis. Private medical records show that he was hospitalized for severe epigastric pain in December 1971. He had had three prior attacks of acute pancreatitis, but investigations had shown no precipitating cause for the pancreatitis. The treating physician noted, however, that the prior episodes of pancreatitis had always occurred after drinking beer, but the veteran denied having drunk any beer when hospitalized in December 1971. The physician determined that the only other precipitating cause was obesity. The veteran was again hospitalized in January 1973 for chronic pancreatitis, at which time an exploratory laparotomy was performed. On admission, he reported a three-year history of abdominal pain. The report of a consultation obtained in conjunction with the January 1973 hospitalization shows that his chief complaint was recurrent pancreatitis. His first attack of pancreatitis had occurred in October 1970; the second in April 1971; the third in May 1971; and the fourth in December 1971. Surgery had been performed between the third and fourth attack (July 1971). He continued to experience abdominal symptoms following the attack documented in December 1971. His symptoms were not precipitated by alcohol, and he denied consuming any alcohol for the previous year. He had no history of trauma, drug intake, or family history to explain the cause of the disease. That hospitalization resulted in a diagnosis of chronic, recurrent pancreatitis, probably due to an obstructive mechanism. In a January 1989 medical report, which was submitted in conjunction with the veteran's claim for benefits under the Agent Orange Payment Program, the veteran's private physician outlined his history of chronic pancreatitis. The physician also stated that the veteran had developed diabetes mellitus in February 1976 due to chronic pancreatitis. In addition, he stated that the veteran's gallbladder had been removed due to gallbladder disease. The VA and private medical records document the ongoing treatment of insulin-dependent diabetes mellitus with an onset in 1976. The diabetes has been referred to as both Type I and Type II diabetes. The VA and private treatment records show beginning in December 1982 that the diabetes mellitus is secondary to the pancreatitis and removal of part of the pancreas. The veteran was hospitalized for acute pancreatitis in August 1990. The summary report of that hospitalization indicates that he had no history of alcoholism, but that he had had seven attacks of abdominal pain prior to 1971. That evidence was, however, apparently based on the veteran's reported history, in that the physician providing the report had treated the veteran only for the previous four years. In multiple statements and hearing testimony beginning in March 1991, the veteran reported having severe stomach pains while serving in Vietnam, which his doctors described as heartburn. He stated that his stomach pain got worse after he was separated from service, which resulted in the removal of his gallbladder and part of his pancreas. He also stated that his doctors had told him when he had part of the pancreas removed that he would develop diabetes in four or five years, which did occur. He claimed that all of his health problems resulted from having been sprayed with Agent Orange in Vietnam. In a November 1999 hospital summary, Henry W. Snead., M.D. diagnosed alcoholic pancreatitis and insulin-dependent diabetes mellitus or type 1 diabetes mellitus following pancreatectomy. In a February 2000 report, Dr. Snead stated that the veteran had asked him to provide an opinion regarding the cause of his diabetes mellitus. Dr. Snead then noted that the veteran had been exposed to Agent Orange in Vietnam, and that the veteran reported the development of severe abdominal pain following that exposure that resulted in a pancreatectomy in the early 1970s. Dr. Snead stated that as a result of the pancreatectomy the veteran was an insulin-dependent diabetic. He found that the diabetes was not due to alcohol, and that there was no history of diabetes in the veteran's family. In an October 2001 report, Dr. Snead again noted that the veteran had been exposed to Agent Orange while serving in Vietnam, and that exposure to Agent Orange had been associated with pancreatitis, among other illnesses. He stated that due to the pancreatitis caused by exposure to Agent Orange, the veteran had undergone a pancreatectomy and then developed diabetes mellitus. He found no pre-disposing condition to the pancreatitis, in that there was no history of alcoholism or gallstones, and that the veteran had had a cholecystectomy prior to the onset of pancreatitis. He found that the pancreatitis and subsequent pancreatectomy, with the development of insulin-dependent diabetes mellitus, was due to the Agent Orange exposure. In March 2003, Dr. Snead submitted a summary of multiple scientific studies that he characterized as showing a relationship between Agent Orange exposure and pancreatic disease. The specific studies that he cited referred to a statistical relationship between Agent Orange exposure and diabetes mellitus, not pancreatic disease per se. The veteran's representative also submitted a number of treatises pertaining to a statistical relationship between exposure to dioxin (the herbicide included in Agent Orange) and the occurrence of diabetes mellitus, thyroid disorders, insulin resistance, and blood glucose levels; the rate of Agent Orange exposure among Vietnam veterans; the statistical relationship between occupational exposure to pesticides and pancreatic cancer; pancreatitis due to environmental toxins; a statistical relationship between herbicides and pancreatic cancer in wheat-producing states; the effect on insulin secretion in mice by imidazolines; the effect of A8947 (a broad-leaf herbicide) on pancreatic hypertrophy in rats; the effects of dioxin on cell membranes in the pancreas of guinea pigs; the effects of dioxin on metabolic imbalances in guinea pigs; and the effects of acute dioxin toxicity on some endocrine and morphological processes. Correspondence from Leanne Chrisman, M.D., Med, dated in September 2007 is of record. Dr. Chrisman stated that the veteran's medical records were reviewed and he "did not have the typical environmental risk factors modifiable such as . . . alcoholism/chronic heavy alcohol use." She concluded that the veteran's pancreatic disease and diabetes mellitus was caused by his Agent Orange exposure. As the veteran's treating physician Dr. Snead characterized the veteran's pancreatitis, with resulting diabetes mellitus, as being due to alcohol abuse, and Dr. Chrisman stated that the veteran did not have such a risk factor. An opinion which takes into account all the veteran's medical records is still needed. In addition, an opinion regarding the nature and etiology of the veteran's diabetes mellitus is also needed. Finally, in light of the need to remand these claims, the veteran and his attorney should be notified of VA's duty to assist under Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). Accordingly, the case is REMANDED for the following action: 1. Send the veteran and his attorney an additional letter which complies with the VA notification and duty to assist requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. They should be afforded the appropriate period of time for response to all written notice and development as required by VA law. 2. After all available records and/or responses have been associated with the claims file obtain opinions regarding the etiology of the veteran's pancreatitis and diabetes from an appropriately qualified physician. The veteran's entire claims file, to include a complete copy of this REMAND, must be provided to the physician designated to provide the opinions, and the report should include discussion of the veteran's documented medical history and assertions. The physician is hereby advised that the purpose of the examination is to determine the nature and etiology of any current gastrointestinal disorder. Regarding his current diabetes mellitus, the examiner should opine as to the type of diabetes mellitus (Type I or II) the veteran currently has. For each diagnosed disability, the physician should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that such disability is medically related to the veteran's active military service, including his herbicide exposure. If Type II diabetes mellitus is diagnosed, the examiner should opine whether it is at least as likely as not that it was medically caused by alcohol abuse or a pancreatectomy, as opposed to inservice herbicide exposure. The examiner should discuss the opinions of Dr. Snead and Dr. Chrisman; and the medical literature contained in the claims file. 3. Then, readjudicate the claims on the merits. If any claim remains denied, the RO should issue an appropriate supplemental statement of the case and give the veteran and his attorney the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. 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 of Veterans' Appeals 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. 2007). _________________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).