Citation Nr: 0811380 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 05-32 604 ) 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 gastroparesis with muscle loss and stomach impairment as secondary to diabetes mellitus. 3. Entitlement to service connection for retinopathy as secondary to diabetes mellitus. 4. Entitlement to service connection for neuropathy as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran had active military service from March 1970 to October 1971 This appeal comes to the Board of Veterans' Appeals (Board) from a July 2004-issued rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that denied service connection for type II diabetes mellitus, for gastroparesis with muscle loss and stomach impairment due to diabetes, for retinopathy due to diabetes, and for neuropathy due to diabetes. Entitlement to service connection for gastroparesis with muscle loss and stomach impairment, for retinopathy, and for neuropathy all claimed as secondary to diabetes mellitus, is addressed in the REMAND portion of the decision and is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT The evidence of record is at least in relative equipoise on the question of whether type I diabetes mellitus became manifested to a degree of 10 percent within a year of discharge from active service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the veteran, diabetes mellitus, type I is presumed to have been incurred in active military service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for in 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007), VA has a duty to notify and assist. In this case, the Board is granting in full the benefit sought on appeal regarding the issue of service connection for diabetes mellitus, type II, addressed in this decision. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Service Connection for Diabetes Mellitus Service connection may be awarded for disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). "Direct" service connection may be established for a current disability when the evidence shows affirmatively that the disability resulted from injury or disease incurred (or aggravated) during active service. Id. "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Each disabling condition shown by service medical records, or for which the veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Chronic diseases" as defined at 38 C.F.R. § 3.307 and 3.309 (including diabetes mellitus) are accorded special consideration for service connection. Where the disease has become manifested to a degree of 10 percent within a year of discharge, service connection shall be granted. Where a condition is not shown to be chronic, then continuity of symptomatology is required to support the claim. 38 C.F.R. § 3.303(b). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. VA regulations contain special provisions for service connection for those exposed to herbicides during active service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.309(e) (2004). There are also certain time limits for presumptive service connection. The specified diseases for which presumptive service connection is available are: chloracne and other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and certain soft tissue sarcomas. 38 C.F.R. § 3.309(e) (2007). For purposes of establishing service connection for a disability or death resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin or 2,4- dichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f) (West 2002). Three possible avenues to service connection are presented. The first avenue is direct service connection for diabetes mellitus that arose during active service or later was linked directly to active service. Combee, supra. In this case, the veteran has stated that diabetes mellitus arose a few months after separation from active service. His service medical records are silent for any relevant symptom or treatment. Thus, although examiners have noted that diabetes mellitus arose during active service, such appears to be based on faulty history reports. Direct service connection is therefore unwarranted. The second avenue for service connection is via presumptive service connection for diabetes as a chronic disease that became manifested to a degree of 10 percent within a year of separation from active service. The favorable evidence for this includes a September 2003 letter from T. Darnell, M.D., who reported that type I diabetes began in 1971. This is favorable because the veteran was discharged in 1971 and even though the service medical records do not reflect diabetes, if diabetes arose, that is, became manifested to a degree of 10 percent or more within a year of separation, it may be presumptively service-connected under 38 C.F.R. § 3.307, 3.309 (a). The persuasiveness of Dr. Darnell's letter is lessened by lack of supporting records, however. The favorable evidence for presumptive service connection under 38 C.F.R. § 3.307, 3.309 (a) also includes an October 2003 VA diabetes examination report that reflects that type I diabetes began at age 21. Because the veteran was born in June 1949, his 22nd birthday would have occurred on June 1971, during active service. However, for lack of supporting records, the persuasive value of this opinion is lessened. The favorable evidence for presumptive service connection under 38 C.F.R. § 3.307, 3.309 (a) also includes a June 2007 VA diabetes compensation examination report authored by a nurse-practitioner and cosigned by a medical doctor. The examiner reviewed the claims files and reported that type I diabetes mellitus began in 1971 at age 22. Thus, this report also argues for presumptive service connection for type I diabetes mellitus that became manifested to a degree of 10 percent within a year of separation. The favorable evidence for presumptive service connection under 38 C.F.R. § 3.307, 3.309 (a) also includes competent lay evidence. According to 38 C.F.R. § 3.307 (b) Evidentiary basis, "The factual basis may be established by medical evidence, competent lay evidence, or both." Thus, the veteran's description of relevant and material facts observed within the presumptive period must be accorded full weight. In his notice of disagreement (NOD), he reported that Dr. Finlay, now deceased, found diabetes a few months after separation from active service. Thus, it appears that there is significant favorable evidence for presumptive service connection under 38 C.F.R. § 3.307, 3.309 (a). The third avenue for service connection in this case is via 38 C.F.R. § 3.307, 3.309 (e). Where type II diabetes mellitus arose at any time after active service, if a veteran was exposed to an herbicide agent, service connection must be granted, provided the rebuttable presumptions of 38 C.F.R. § 3.307(d) are met. The standard of proof to rebut the presumption requires "such as showing as would, in sound medical reasoning and in the consideration of all the evidence of record, support a conclusion that the disease was not incurred in service." 38 C.F.R. § 3.307(d). The veteran's exposure to herbicide agents is established. He served as a machine-gunner in Vietnam. The favorable evidence for presumptive service connection under 38 C.F.R. § 3.307, 3.309 (e), includes a November 2003 VA diabetes compensation examination report. In that report, a VA physician considered types I and II diabetes and offered, as a diagnosis, "Diabetes mellitus type 2, very labile, apparently first diagnosed in the military." The favorable evidence for presumptive service connection for type II diabetes also includes the June 2007 VA diabetes compensation examination report. This report is persuasive because the examining nurse practitioner and cosigning staff physician were asked to distinguish between type I or II diabetes. The opinion offered is, "The veteran at least as likely as not (50/50 probability) has type I diabetes mellitus." This opinion fully supports presumptive service connection for either type I or type II diabetes because a "50/50"probability of type I implies a 50/50 probability for type II diabetes. To deny a claim on its merits, the evidence must preponderate against the claim [emphasis added]. Alemany, supra. In this case, the medical evidence for service connection is favorable, as uncertainty lies only in whether type I diabetes mellitus arose within a year of active service, or type II diabetes mellitus arose at sometime after active service. Because the veteran has competently reported that treatment for diabetes began within a year of separation, the Board will grant service connection for type I diabetes mellitus that is shown on an at least as likely as not basis to have become manifested to a degree of 10 percent within a year of discharge from active service. ORDER Service connection for type I diabetes mellitus is granted. REMAND Because the decision above has granted service connection for type I diabetes mellitus, the issues of service connection for gastroparesis with muscle loss and stomach impairment, retinopathy, and neuropathy all claimed as secondary to diabetes mellitus, must be re-evaluated. Under the provisions of 38 C.F.R. § 3.310(a) (2007), service connection may be established for disability which is proximately due to or the result of a service-connected disease or injury. However, service connection may also be granted for nonservice-connected disability "when aggravation of a veteran's nonservice- connected condition is proximately due to or the result of a service-connected condition," with compensation being paid "for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Allen v. Brown, 7 Vet. App. 439 (1995). Thus, a VA examination is needed to address the etiology of the claimed gastroparesis with muscle loss and stomach impairment, retinopathy and neuropathy, to include whether they are caused or aggravated by his service-connected diabetes mellitus. Accordingly, the case is REMANDED for the following action: 1. The AOJ should schedule the veteran for VA examinations, by appropriate specialist(s), to determine the nature and etiology of the veteran's claimed gastroparesis with muscle loss and stomach impairment, retinopathy and neuropathy, to include whether they are caused or aggravated by his service- connected diabetes mellitus. The claims folder must be made available to the examiner(s) prior to the examination, and the examiner(s) should acknowledge such review of the pertinent evidence in the examination report. All indicated studies should be performed and all manifestations of current disability should be described in detail. The examiner(s) should address the following: Does the veteran have any current gastroparesis with muscle loss and stomach impairment, retinopathy and neuropathy? If so, is it at least as likely as not that the current claimed gastroparesis with muscle loss and stomach impairment, retinopathy and neuropathy, are being caused or aggravated beyond natural progression by the service-connected diabetes mellitus? Each opinion should contain comprehensive rationale based on sound medical principles and facts. 2. Following completion of the above development, the AOJ should readjudicate the claims of entitlement to service connection for gastroparesis with muscle loss and stomach impairment, for retinopathy, and for neuropathy, to include whether they are caused or aggravated by his service-connected diabetes mellitus. If all the desired benefits are not granted, an appropriate supplemental statement of the case should be furnished to the veteran and his representative. They should be afforded an opportunity to respond before the claims folder is returned to the Board for further review. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified; however, the veteran is advised that failure to cooperate by reporting for examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2007). The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. The veteran has the right to submit additional evidence and argument on the matter or matters 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). ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs