Citation Nr: 1010174 Decision Date: 03/17/10 Archive Date: 03/24/10 DOCKET NO. 03-13 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active military service from June 1967 to November 1968. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In August 2003, the Veteran testified during a hearing before RO personnel: a transcript of that hearing is associated with the claims file. In a January 2005 decision, the Board denied the Veteran's claim for service connection for diabetes mellitus on a direct and a presumptive basis. The Veteran appealed the Board's January 2005 decision to the United States Court of Appeals for Veteran's Claims (the Court). By a February 2009 memorandum decision, the Court affirmed that part of the Board's decision that denied service connection for diabetes mellitus on a presumptive basis. The portion of the Board's decision denying service connection for diabetes mellitus on a direct basis was vacated and remanded for further proceedings consistent with the Court's decision. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND As noted above, in a February 2009 memorandum decision, the Court affirmed the Board's January 2005 decision that denied service connection for diabetes mellitus on a presumptive basis. However, in regards to entitlement to service connection on a direct basis, the Court found that the September 2002 VA examination relied upon by the Board was inadequate, and that the Board erred in relying on it. Thus, the Court determined that a remand was necessary for the Board to provide a thorough and contemporaneous medical examination pursuant to its duty to assist. See 38 U.S.C.A. § 5103A . The Veteran contends that while serving aboard the U.S.S. Dehaven in the waters off the coast of Vietnam, water contaminated with Agent Orange washed onto the deck of his ship and that aircraft would dump excess Agent Orange from the air, some blowing onto the ship and some landing directly on deck. He contends that such exposure resulted in his currently diagnosed diabetes mellitus. The United States Court of Appeals for the Federal Circuit has held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir.1994). Consistent with the Court's decision, a remand is warranted to provide the Veteran with a medical examination and obtain a medical opinion addressing the direct service connection question of nexus between current diabetes mellitus and service. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). Accordingly, the case is REMANDED for the following action: 1. The RO should send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim remaining on appeal that is not currently of record. The RO should ensure that its letter meets the notice requirements of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO should schedule the Veteran for an appropriate VA medical examination to assess the nature and etiology of his diabetes mellitus. All indicated tests should be accomplished, and all clinical findings reported in detail. The claims file should be made available to the examiner for review prior to entering any opinion, and the examination report should include discussion of the Veteran's documented medical history and assertions. It is noted that he is not entitled to presumptive service connection on the basis of Agent Orange exposure as that has been denied and upheld by the Court. The examiner should opine as to whether it is at least as likely as not (i.e. there is a 50 percent or greater probability) that the Veteran's diabetes mellitus had its onset during his military service. In providing this opinion, the examiner is requested to comment on the Veteran's contentions, as discussed above. The examiner should set forth all examination findings, together with the complete rationale for all conclusions reached. 3 . After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim for service connection for diabetes mellitus, on a direct basis, in light of all pertinent evidence and legal authority. 4. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his attorney an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant 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. 2009). _________________________________________________ MICHAEL D. LYON 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) (2009).