Citation Nr: 1301314 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-23 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for type II diabetes mellitus. REPRESENTATION Appellant represented by: Bradley Clark, Attorney WITNESSES AT HEARING ON APPEAL The Veteran, E.L., and R.H. ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1978 to October 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction over the case was subsequently transferred to the RO in Winston-Salem, North Carolina. A formal hearing was held before a Decision Review Officer at the RO in Winston-Salem in March 2009. A Board hearing was also held in June 2011, by means of video conferencing equipment with the Veteran testifying in Winston-Salem, North Carolina, before the undersigned Veterans Law Judge, sitting in Washington, DC. The transcripts of both proceedings are of record. Following the Board hearing, the record was held open for the submission of additional evidence. The Veteran's representative submitted additional evidence in August 2011 and subsequently indicated that the Board could proceed with adjudication of the appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board finds that further development is necessary prior to final adjudication of the Veteran's claim of entitlement to service connection for type II diabetes mellitus. The Veteran contends that his diabetes mellitus is related to his military service. Specifically, he alleges that, although he was not diagnosed with diabetes mellitus until after service, symptoms began in service. Throughout the course of this appeal, he has reported having in-service symptoms, to include constant thirst, weight gain, and frequent urination. He indicated that he did not seek treatment out of concern that he would be "kick[ed] out" of the military. See, e.g., DRO Hearing Tr. at 2. He also recalled having a glucose test at his final physical with a reported level of 312; he reported that he was told this lab finding was missing from his service treatment records. See DRO Hearing Tr. at 5, 13. A review of the Veteran's service treatment records shows no in-service complaints, treatment, or diagnosis for diabetes mellitus or indicative symptoms, such as increased thirst or increased urinary frequency. The Veteran reported having recent weight gain or loss in reports of medical history on examinations at entrance (January 1978), reenlistment (March 1985), and separation (August 1989); however, a report of frequent or painful urination at the reenlistment examination was noted to be related to a urinary tract infection. In February 1989, he was referred to the nutrition clinic to begin a weight reduction program. During the Veteran's examinations at entrance, reenlistment, and separation, his endocrine and genitourinary systems were found to be "normal." In each instance, urinalysis testing revealed negative results for albumin and sugar, and laboratory testing slips from February 1985 (reenlistment) and August 1989 (separation) show that his urine chemistry was negative for glucose. A review of the post-service medical evidence of record shows that the Veteran began receiving treatment for diabetes mellitus in 1991. In addition, laboratory testing conducted in 1992 and 1993 showed results of "high" glucose levels. A written submission from Dr. W.R.N. (initials used to protect privacy) dated in October 2007 indicates that he initially treated the Veteran in January 1991, diagnosing him with uncontrolled diabetes. Dr. W.R.N. stated that the Veteran had long-standing diabetes at that point, as evidenced by the development of diabetic cataracts around that time. He based this opinion, in part, on an understanding that the military had lost all of the Veteran's labs; he indicated that had there been even one in-service urinalysis, it would have shown glucose in the Veteran's urine. A written submission from Dr. W.B. dated in October 2007 indicates that he diagnosed the Veteran with diabetes mellitus, type II at that time, and that the Veteran probably had the disease prior to 1989 based on his symptoms. Another written submission from Dr. W.B. dated in November 2007 shows that the Veteran continued to undergo treatment for his diabetes mellitus, including related end-stage renal disease due to diabetic nephropathy and blindness. He noted the Veteran's reports of intermittent symptoms during service of fatigue, frequent urination, and thirst, which he indicated were symptoms consistent with the diagnosis of diabetes mellitus. He also commented that the diagnosis may have been elusive depending on many factors when the labs were checked. He further stated that it may be difficult to know exactly when the Veteran developed diabetes mellitus, but generally, it takes about 10-20 years of the disease to result in end organ dysfunction resulting in blindness and renal failure. Based on the complications noted above, he suspected that the Veteran had diabetes mellitus for 15-20 years prior. In a final written submission from Dr. W.B. dated in May 2011, he indicates that it is possible that the Veteran's diabetes mellitus could be a function of his toxin exposure in the military. Dr. W.B. noted that he was not in possession of the Veteran's military medical records, but stated that mildly elevated glucose levels in the 1980s and possibly 1990s may not have been accepted as evidence for diabetes mellitus based on the medical standards at that time. The Board acknowledges the medical opinions submitted by the Veteran's private physicians. In this case, however, the Board finds that these opinions are inadequate inasmuch as it appears that the physicians did not address the negative laboratory findings in the Veteran's service treatment records. In this regard, the Board observes that the physicians did not appear to review the claims file, to include the Veteran's service treatment records. The Court has held that the relevant focus is not on whether a clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). While the physicians did consider the Veteran's own reported history and performed examinations, neither physician addressed the relevant fact of the negative laboratory findings discussed above. In fact, the basis of Dr. W.R.N.'s opinion is based in part on the rationale that had there been one in-service urinalysis, it would have shown glucose in the Veteran's urine. Moreover, Dr. W.B.'s opinion is based in part on the Veteran's "toxin exposure" during service. Such is not shown by the record or further explained by the physician. Therefore, the Board finds that these opinions are insufficient to serve as a basis for deciding this claim. Moreover, VA's duty to assist requires that a VA medical examination be provided or medical opinion obtained when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the appellant's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In light of the above, the Board finds that an additional medical opinion addressing the nature and etiology of the Veteran's diabetes mellitus is necessary to decide the Veteran's claim. In addition, the record reflects that there may be outstanding private treatment records which may be pertinent to the Veteran's claim. In this regard, the record shows that the Veteran was seen by Dr. W.R.N. at Family Medicine from 1993-2004. In an April 2009 written response to a records request by the RO to Family Medicine for treatment in 1991-1992, the office indicated that the Veteran became a patient in March 1993, and a new request should be submitted accordingly; no such request is of record. The Board finds that further development to obtain these records is in order. The record also reflects that the Veteran was awarded disability benefits by the Social Security Administration beginning in approximately 2005. See Board Hearing Tr. at 8. The records upon which that award was based could be supportive of the Veteran's claim. Therefore, further development to obtain these records is also in order. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his diabetes mellitus. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. A specific request should be made for treatment records from Dr. W.R.N. at Family Medicine dated from 1993 to 2004. 2. The RO/AMC should also undertake appropriate development to obtain a copy of the SSA decision awarding the Veteran disability benefits in or about 2005, the records upon which the decision was based, and records associated with any later disability determinations for the Veteran. 3. After obtaining any identified and outstanding records, the RO/AMC should forward the Veteran's claims file, to include a copy of this Remand, to a VA physician for a complete review and preparation of an opinion addressing the nature and etiology of the Veteran's diabetes mellitus. Specifically, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's diabetes mellitus manifested in service or within one year thereafter or is otherwise causally or etiologically related to the Veteran's active duty service. The physician is asked to specifically consider the Veteran's statements of in-service symptomatology, as well as the Veteran's private physicians' treatment records in rendering this opinion. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 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), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review. An examination of the Veteran should be performed if deemed necessary by the person providing the opinion. 4. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. 2012). _________________________________________________ JESSICA J. WILLS 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) (2012).