Citation Nr: 1014792 Decision Date: 04/19/10 Archive Date: 04/30/10 DOCKET NO. 08-30 795 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for diabetes mellitus (DM). REPRESENTATION Appellant represented by: Veterans of the Vietnam War, Inc. ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from September 1976 to July 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Additional evidence was added to the claims file in April 2010 after the most recent Supplemental Statement of the Case along without a waiver of RO review on behalf of the Veteran. See 38 C.F.R. § 20.1304 (2009). For reasons discussed hereinbelow, the issue on appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND A review of the claims files reveals elevated blood glucose levels beginning in service in October 1996 and elevated blood glucose levels after service separation beginning in January 1999, which is less than two years after discharge. DM was diagnosed in June 2004. However, there is no nexus opinion on file on whether the Veteran's DM is causally related to service, to include the elevated glucose levels. The Board finds that additional development is needed prior to Board adjudication. The law provides that a veteran who has 90 days or more of service may be entitled to presumptive service connection of a chronic disease that becomes manifest to a degree of 10 percent or more within one year from service. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. § 3.307 (2003). Diabetes mellitus is one of the chronic diseases for which such presumptive service connection may be granted. 38 C.F.R. § 3.309(a). With chronic disease shown as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). The law further provides that no presumptions may be invoked on the basis of advancement of the disease when first definitely diagnosed for the purpose of showing its existence to a degree of 10 percent within the applicable period. This will not be interpreted as requiring that the disease be diagnosed in the presumptive period, but only that there be then shown by acceptable medical or lay evidence characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Symptomatology shown in the prescribed period may have no particular significance when first observed, but in the light of subsequent developments it may gain considerable significance. Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree. 38 C.F.R. § 3.307(c). Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO must request that the Veteran provide the names, addresses, and dates of treatment of all health care providers, both VA and non-VA, who have treated him for DM since February 2009, the date of the most recent medical evidence on file. After securing the necessary authorization, the AMC/RO must attempt to obtain copies of any pertinent treatment records identified by the Veteran that have not been previously secured. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform the Veteran of this and provide him an opportunity to submit copies of the outstanding medical records. 2. After the above has been completed, the AMC/RO will have an appropriate health care provider review the claims files and provide an opinion, based on the objective evidence on file, on whether the Veteran has DM that was caused or aggravated by service, to include elevated blood glucose levels. The health care provider must acknowledge receipt and review of the claims files in any report generated as a result of this remand. In all conclusions, the opinion must identify and explain the medical basis or bases, with identification of the evidence of record. If the health care provider is unable to render an opinion without resort to speculation, this should be noted and explained. The report prepared must be typed and added to the claims files. 3. After the above has been completed, the AMC/RO should review the claims files and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 4. Thereafter, the AMC/RO will consider all of the evidence of record, including the evidence received in April 2010, and re-adjudicate the Veteran's claim for service connection for DM. If the benefit sought on appeal remains denied, the Veteran and his representative will be provided a supplemental statement of the case ("SSOC"). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time will be allowed for response. Thereafter, if indicated, the case will be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. By this remand, the Board intimates no opinion as to the final disposition of the unresolved issue. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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. 2009). _________________________________________________ VITO A. CLEMENTI 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).