Citation Nr: 1300577 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 09-35 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection, to include on a secondary basis, for diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The Veteran had active service from January 1982 to October 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Board notes that the Veteran was issued a statement of the case in July 2009 which addressed the additional issues of an increased rating for hypertension, and an increased rating for a left knee disorder (the rating action at issue addressed both knees). On his substantive appeal dated in September 2009, the Veteran specifically indicated that he was only appealing the matter of service connection for diabetes. The record shows that the RO thereafter issued a supplemental statement of the case in June 2010 in response to a much earlier request by the Veteran for review of his claims by a Decision Review Officer; the supplemental statement of the case addressed the increased ratings issues (and expanded the left knee issue to include the right knee as well). In July 2010, the Veteran again indicated that he was pursuing appellate review of the diabetes matter; he did not reference the increased ratings issues. Given the above, the Board finds that the Veteran clearly is only pursuing appellate review of the service connection matter. Consequently, the Board will limit its consideration to the matter listed on the title page of this action. 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 Briefly, the Veteran contends that his diabetes mellitus either originated in service, or was caused or aggravated by his service-connected hypertension. The service treatment records show that in July 1996, blood serum testing disclosed elevated triglycleride levels, as compared to the identified reference range for normal. In July 1998, blood serum testing disclosed elevated triglyceride and blood glucose levels. When the Veteran's blood glucose and triglyceride levels were tested in service on other occasions, both levels were within the identified reference ranges for normal. The post-service evidence on file shows that the Veteran was first noted to have new onset diabetes mellitus in 2007. None of the clinical records on file address the etiology of the diabetes. The Veteran was examined by VA in connection with his claim in January 2008. At that time, the examiner concluded that the Veteran's diabetes was not caused by or a result of his hypertension. She explained that it was her understanding of the pathophysiology of both disorders that there is no link whereby hypertension causes diabetes. The examiner did note that on two occasions in service, the Veteran evidenced impaired glucose tolerance by current standards, which would have placed him at risk for acquiring diabetes at a later date. The Board notes that a finding in service which places one at risk for a future disease or disorder outside of service years later does not, alone, suffice to establish service incurrence or service origin of the disease or disorder. Unfortunately, the examiner did not elaborate as to whether it is at least as likely as not that the two instances of impaired glucose tolerance noted in service resulted in the later development of diabetes, or whether the current diabetes mellitus is otherwise etiologically related to service. In addition, although the examiner concluded that the Veteran's hypertension did not cause the current diabetes mellitus, the examiner did not address the separate issue of whether the hypertension chronically worsened the diabetes. See 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Given the above deficiencies in the examination report, the Board must remand the case for a supplemental medical opinion or further examination and opinion. Accordingly, the case is REMANDED for the following action: 1. Provide the claims file to the examiner who conducted the Veteran's January 2008 VA examination, and request that the examiner provide supplemental medical opinions to the examination report. Specifically, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent likelihood or higher) that the Veteran's diabetes mellitus is causally or etiologically related to the Veteran's active service, including to any impaired glucose tolerance findings she noted in the service treatment records. The examiner should also provide an opinion as to whether it is at least as likely as not that the diabetes mellitus was caused or aggravated by the Veteran's service-connected hypertension and/or bilateral lower extremity disorders. By aggravation the Board means a permanent increase in the severity of the underlying disability beyond its natural progression. If aggravation is present, the examiner should indicate, to the extent that is possible, the approximate level of disability before the onset of the aggravation. In rendering the opinions, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to its being the result of some other factor or factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the Veteran's claims file (including those existing in virtual VA), or in the alternative, the claims file, must be made available to the examiner for review. 2. If and only if the examiner who conducted the January 2008 VA examination is unavailable, schedule the Veteran for a VA examination regarding his claim for service connection for diabetes mellitus. The examiner should review the claims file and note that such a review was conducted in the report. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent likelihood or higher) that the Veteran's diabetes mellitus is causally or etiologically related to the Veteran's active service, including to any impaired glucose tolerance findings noted in the service treatment records. The examiner should also provide an opinion as to whether it is at least as likely as not that the diabetes mellitus was caused or aggravated by the Veteran's service-connected hypertension and/or bilateral lower extremity disorders. By aggravation the Board means a permanent increase in the severity of the underlying disability beyond its natural progression. If aggravation is present, the examiner should indicate, to the extent that is possible, the approximate level of disability before the onset of the aggravation. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. Thus, unless the examiner concludes that the current disability is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiner should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to its being the result of some other factor or factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the Veteran's claims file (including those existing in virtual VA), or in the alternative, the claims file, must be made available to the examiner for review. 3. Thereafter, and after undertaking any other developmental action deemed necessary, the RO/AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted in full the RO/AMC should issue a supplemental statement of the case, and should provide the appellant and his representative an opportunity to respond. After the appellant and his representative have been given an opportunity to respond to the supplemental statement of the case and the period for submission of additional information or evidence set forth in 38 U.S.C.A. § 5103(b) (West 2002) has expired, if applicable, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant and his representative have the right to submit additional evidence and argument on the matter the Board has remanded to the RO/AMC. 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 or by the United States Court of Appeals for Veterans Claims (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. 2012). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2012).