Citation Nr: 1019489 Decision Date: 05/26/10 Archive Date: 06/09/10 DOCKET NO. 08-32 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B.W. Hennings, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1973 to April 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In March 2010, the Veteran testified at a travel board hearing at the Nashville RO before the undersigned acting Veterans Law Judge. The undersigned was designated by the Chairman of the Board to conduct that hearing and to render a final determination in this case. 38 U.S.C.A. §§ 7101(c), 7102 (West 2002). A transcript of the hearing is of record. 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 Procedural issue The Board notes that the issue on appeal was originally construed by the RO as whether the rating decision of February 4, 2005 contained clear and unmistakable error in the denial of the claim for service connection for diabetes mellitus. However, during the Veteran's March 2010 hearing, the undersigned made a procedural ruling that the issue on appeal before the Board is correctly characterized as entitlement to service connection for diabetes mellitus. In a February 4, 2005 rating decision, which denied entitlement to service connection for diabetes mellitus, the RO's basis for that denial was that the service treatment records did not contain a diagnosis or treatment of the condition in service and that the earliest diagnosis of diabetes mellitus was made in 1999 at the Vanderbilt University Medical Center. Subsequent to the February 4, 2005 rating decision, a notice letter was provided to the Veteran on February 14, 2005. The Veteran responded with a December 16, 2005 statement. In this statement, the Veteran requested review of the decision denying entitlement to service connection for diabetes mellitus. There is some ambiguity as to whether or not the December 2005 statement by the Veteran could be construed as a request to reopen or whether or not it can be construed as a notice of disagreement. However, based on the Veteran's testimony in his March 2010 hearing and a review of documents within the context of the rating decision itself, the Board resolves all ambiguity in favor of the Veteran and finds that the December 16, 2005 statement does meet the requirements for a valid and timely notice of disagreement. For purposes of this appeal, it is accepted as such. The Board also finds that that the September 2008 statement of the case will be accepted for appeal purposes as a statement of the case in response to the Veteran's December 2005 notice of disagreement on the issue of service connection for diabetes mellitus. In addition, the Board finds that the Veteran's VA Form 9, which was received in October of 2008, is a valid and timely VA Form 9 (substantive appeal) for the issue of service connection for diabetes mellitus. Since the December 2005 document is being accepted as a valid and timely notice of disagreement, a March 6, 2008 document (recognized by the RO as a notice of disagreement) is no more than a continuation of the Veteran's contentions to continue to prosecute his appeal. That being the appeal that remained open and pending from the time he filed the December 2005 document. Therefore, the only outstanding procedural document that needs to be provided in this case is a supplemental statement of the case, which clearly clarifies what the issue on appeal is and that the issue is entitlement to service connection for diabetes mellitus. The RO should prepare a supplemental statement of the case so that there will be no confusion as to the pertinent law and regulations, the evidence that was considered, and the issue that is actually on appeal before the Board. Service connection for diabetes mellitus The Veteran contends that he first developed diabetes in service and his diabetes has worsened over the years. He indicated that he was told that while in military service in 1975 that his blood sugar was high. The Veteran also contends that he was diagnosed with diabetes mellitus around 1977 at the Vanderbilt clinic and had been treated at the VA medical center in Nashville, Tennessee. He contends that he had a slight stroke in June of 2004 due to the diabetes mellitus and that he was stationed on ship in Okinawa in the waters around Vietnam and in Okinawa, Japan during the Vietnam War. The Veteran's service treatment records do not reveal any diagnosis of diabetes or indication of elevated blood sugar levels. Private treatment records from 1999 show the Veteran suffered from diabetes mellitus and indicated that the Veteran had a past history of diabetes, referencing that the Veteran had not been seen in almost three years. VA treatment records from 2006 show the Veteran with a diagnosis of diabetes mellitus and one record notes the Veteran was diagnosed with it when he was in his 30s. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Though the Veteran was not diagnosed with diabetes while in service, "the fact that a condition was not diagnosed cannot, by itself, serve to rebut a subsequent expert diagnosis." Hanson v. Derwinski, 1 Vet. App. 512, 516 (1991). The Veteran is competent to attest that he was first told he had elevated sugar while in service and that he was first diagnosed with diabetes post-service around 1977; current treatment records show a diagnosis of diabetes mellitus. He has testified that his elevated blood sugar and diabetes has continued to the present. His reports of a continuity of symptomatology since service can satisfy the requirement for evidence that the claimed disability may be related to service. See McLendon, supra. The threshold for finding a link between current disability and service for examination purposes is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. Therefore, the Board finds that the Veteran should be afforded a VA medical examination with a nexus opinion to determine whether his claimed diabetes mellitus was incurred or is related to his military service. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2009). In his December 2005 notice of disagreement the Veteran referenced private treatment he received as early as 1977 for his diabetes. Although some private treatment records are of record, it does not appear that a full set of these records are associated with the claims file; an attempt should be made to obtain them. 38 C.F.R. § 3.159(c)(1). The Board also notes that the Veteran has been receiving treatment through VA and testified at various points in his March 2010 hearing that he could not remember when he first went for treatment through the VA, although it might have been 15 years ago. An attempt to obtain more treatment records should be made. 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. A new duty to assist letter that complies with the notification requirements of 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2009) should be provided to the Veteran and his representative, correctly characterizing the issue on appeal as entitlement to service connection for diabetes mellitus. The letter should inform of the information and evidence (lay and medical) that is not of record that is needed to substantiate the claim; it should indicate which portion of the evidence is to be provided by the Veteran and which portion VA will attempt to obtain on behalf of the Veteran; and it should explain how disability ratings and effective dates are assigned, as required by Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. Contac the Veteran and his representative and ask that they provide the names and addresses of all medical care providers who have treated him for his back, including private treatment records from the Vanderbilt Clinic (which may be different than Vanderbilt University Medical Center) in 1977 that were referenced in a December 2005 statement by the Veteran. After securing any necessary release, such records should be requested, to include all diagnostic testing, interpretation and reports, and all records which are not duplicates should then be associated with the claims file. 3. Attempt to obtain any VA treatment records for the Veteran from 1975 to present, including records from the VAMC in Nashville, Tennessee. 4. After the above has been accomplished, the Veteran should be afforded a VA medical examination, with an appropriate examiner, to determine the nature and etiology of the Veteran's diabetes mellitus. The entire claims file must be made available to the designated examiner, and the report of the examination should include discussion of the Veteran's documented medical history and assertions. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims file, the clinical findings of the examination, and the results of any tests and/or studies performed, the examiner is requested to offer an opinion addressing the following question: Is it at least as likely as not (e.g., a 50 percent or greater probability) that the Veteran's diabetes mellitus: (1) was incurred during his active military service; (2) was manifested within one year from the Veteran's separation from service; (3) or is directly related to the Veteran's military service in any way? A complete rationale should be given for all opinions and conclusions expressed in a typewritten report. 5. After completion of the foregoing, and after undertaking any further development deemed warranted by the record, please readjudicate the issue of entitlement to service connection for diabetes mellitus. If the determination remains adverse to the Veteran, he and his representative should be furnished a Supplemental Statement of the Case, noting for the record that the Veteran's VA Form 9, which was received in October of 2008, is a valid and timely VA Form 9 on the issue of service connection for diabetes mellitus, and which relates to the claim that was initially filed in October 2004 and denied in a February 2005 rating decision. Then, the Veteran and his representative should be afforded the requisite opportunity to respond before the claims folder is returned to the Board for further appellate action. 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. 2009). _________________________________________________ DEBORAH W. SINGLETON 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).