Citation Nr: 1306128	
Decision Date: 02/22/13    Archive Date: 02/27/13

DOCKET NO.  09-01 961	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia



THE ISSUES

1. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure.

2.  Entitlement to service connection for s dental disability for compensation purposes.

3.  Entitlement to service connection for hearing loss.

4.  Entitlement to service connection for bladder cancer.



REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. Higgs, Counsel


INTRODUCTION

The Veteran served on active duty from March 1965 to March 1969. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 2008 by the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO).

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The Veteran provided testimony at a February 2012 hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

For the issues of service connection for hearing loss and service connection for bladder cancer, a rating decision was issued in August 2011, and a notice of disagreement was received in September 2011, but a Statement of the Case has not been issued.  Accordingly, as will be discussed below, the issues are remanded for proper development, to include issuance of a Statement of the Case.  Manlincon v. West, 12 Vet. App. 238, 240-241 (1999).

The Veteran's present claim for a dental disability, as it has been developed on appeal, has been adjudicated by the RO as a claim for service connection for dental disability for compensation purposes.  This compensation claim is properly before the Board, and will be addressed in the body of this decision.

The U.S. Court of Appeals for Veterans Claims (Court) has held that a claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment.  See Mays v. Brown, 5 Vet. App. 302 (1993).  Further, in his relevant writings and testimony, the Veteran has alluded to the ongoing need for dental treatment in addition to a desire for disability compensation, as indicated, for example, by his submission of a January 2012 private dental treatment estimate of $12,865.    

The Board notes that effective February 29, 2012, VA amended its adjudication regulations regarding service connection of dental conditions for treatment purposes under 38 C.F.R. § 3.381.  See 77 Fed. Reg. 4470 (Jan. 30, 2011) (codified at 38 C.F.R. § 3.381(a)).  This section identifies some of the circumstances under which dental conditions that may not qualify as disabilities for purposes of VA disability compensation may nevertheless be service-connected for purposes of VA dental treatment under 38 U.S.C. § 1712 and 38 C.F.R. § 17.161.  The amendments clarify existing regulatory provisions and reflect the respective responsibilities of the Veterans Health Administration and the Veterans Benefits Administration in making determinations that concern eligibility for dental treatment.  

The revised version of 38 C.F.R. § 3.381 provides that the Veterans Benefits Administration (VBA) will adjudicate a claim for service connection of a dental condition for treatment purposes after the Veterans Health Administration determines a Veteran meets the basic eligibility requirements of § 17.161 of this chapter and requests VBA make a determination as to certain questions, including, but not limited to: (1) former prisoner of war status; (2) whether the veteran has a compensable or noncompensable service-connected dental condition or disability; (3) whether the dental condition or disability is a result of combat wounds; (4) whether the dental condition or disability is a result of service trauma; or (5) whether the veteran is totally disabled due to a service-connected disability.  
Accordingly, the claim for VA outpatient dental treatment is referred to the  appropriate VA Medical Center (VAMC) for a determination as to whether the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161.

The issues of service connection for an eye disorder (claimed as secondary to diabetes mellitus) and basic eligibility for VA outpatient treatment for a dental disability have been raised by the record, but there is no indication that they have been adjudicated by the appropriate Agencies of Original Jurisdiction (AOJs).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJs for appropriate action.  

The issues of service connection for hearing loss and for bladder cancer are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The evidence is at least in equipoise as to whether the Veteran was exposed to herbicide agents during his period of service at Udorn Royal Air Force Base in Thailand.

2.  The Veteran currently has a diagnosis of diabetes mellitus.

3.  The Veteran does not have a compensable dental condition, nor does he have a dental condition or disability as a result of dental trauma during his active military service. 


CONCLUSIONS OF LAW

1.  The criteria for service connection for diabetes mellitus as due to exposure to certain herbicide agents, to include Agent Orange, during active service are met.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e) (2012).

2.  Entitlement to service connection for a dental disorder for VA compensation purposes is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303, 4.150 (2012); Simmington v. West, 11 Vet. App. 41 (1998).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).

In the decision below, the Board has granted the Veteran's claim for service connection for diabetes mellitus; therefore, no further discussion of the duties to notify and assist is necessary for this claim. See, e.g., Bernard v. Brown, 4 Vet. App. 384   (1993); VAOPGCPREC 16-92. 

With respect to the dental claim, a May 2007 VCAA letter explained the evidence necessary to substantiate the claim for service connection for dental disability for compensation purposes.  This letter also informed the Veteran of his and VA's respective duties for obtaining evidence.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, the VCAA notice letter was provided prior to initial adjudication of the Veteran's claim and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

Moreover, the VCAA recognizes certain circumstances where VA will refrain from or discontinue providing assistance.  VA will refrain from providing assistance in obtaining evidence for a claim if the substantially complete application for benefits indicates that there is no reasonable possibility that any assistance VA would provide to the claimant would substantiate the claim.  VA will discontinue providing assistance in obtaining evidence for a claim if the evidence obtained indicates that there is no reasonable possibility that further assistance would substantiate the claim.  Circumstances in which VA will refrain from or discontinue providing assistance in obtaining evidence include, but are not limited to, the claimant's ineligibility for the benefit sought because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility.  38 C.F.R § 3.159(d).  See also VAOPGCPREC 5-2004 (holding that under 38 U.S.C. § 5103(a), the Department of Veterans Affairs (VA) is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit, and that under 38 U.S.C.A. § 5103A, VA is not required to assist a claimant in developing evidence to substantiate a claim where there is no reasonable possibility that such aid could substantiate the claim because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). 

In this case, VA is not required to provide further notice or assistance with respect to the Veteran's claim for service connection for a dental disability for compensation purposes because, as will be discussed below, undisputed facts render the Veteran ineligible for service connection for dental disability for VA compensation purposes.  38 U.S.C. § 5103(a); VAOPGCPREC 5-2004.  

Further, the Board finds that VA is to refrain from providing assistance in obtaining further evidence for the claim because there is no reasonable possibility that any assistance VA would provide to the claimant would substantiate the claim.  Given the facts as related by the Veteran and indicted in the claims file, there is no reasonable possibility that further development will substantiate the claim.  38 U.S.C. § 5103A; 38 C.F.R § 3.159(d); VAOPGCPREC 5-2004.  Specifically, there is no reasonable possibility that further development would result in obtaining evidence to show that the Veteran has experienced loss of teeth due to in-service dental trauma or disease, such as osteomyelitis, impairment of the mandible, or loss of a portion of the ramus or maxilla.  See 38 C.F.R. § 4.150; Simmington v. West, 11 Vet. App. 41 (1998).  For essentially the same reasons, there is no duty to provide the Veteran a VA examination, as there is no indication or contention that the Veteran has a current dental disability for compensation purposes that is associated with a disease or injury incurred or aggravated during active service.  See 38 U.S.C.A. § 5103A(d).

As will be explained below, the law as applied to undisputed facts, and not the evidence, is dispositive for this claim.  The United States Court of Appeals for Veterans Claims (Court) has held that when the law, and not the underlying facts or development of the facts are dispositive in a matter, the VCAA can have no effect on the appeal.  Manning v. Principi, 16 Vet. App. 534, 542 (2002); Smith v. Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited to interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, not factual evidence, is dispositive).  Therefore, the Board finds that no further action is necessary under the VCAA in this case and that the case is ready for appellate review.  In the circumstances of this case, any additional development or notification would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided); Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (when there is extensive factual development in a case, reflected both in the record on appeal and the Board's decision, which indicates no reasonable possibility that any further assistance would aid the appellant in substantiating his claim, the VCAA does not apply).   


Law and Analysis

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 

Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).  


I.  Dental Disability

Service connection for compensation purposes can only be established for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150 (2012), such as impairment of the mandible, loss of a portion of the ramus and loss of a portion of the maxilla.  Compensation is available for loss of teeth only if due to loss of substance of the body of the maxilla or mandible.  See Simmington v. West, 11 Vet. App. 41 (1998).  For loss of teeth, bone loss through trauma or disease, such as to osteomyelitis, must be shown for purposes of compensability.  The loss of the alveolar process as a result of periodontal disease is not considered disabling. 38 C.F.R. § 4.150, Diagnostic Code 9913, Note (2012).  Periodontal disease is any of a group of pathological conditions that affect the surrounding and supporting tissues of the teeth.  Id.

Absent a demonstration of dental trauma, service connection may not be considered for compensation purposes, but service connection may be considered solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment.  See Woodson v. Brown, 8 Vet. App. 352, 354 (1995).  The determination of whether service connection may be established for the purpose of outpatient dental treatment is based on the criteria set forth in 38 C.F.R. § 3.381.  As provided by VA regulations, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not considered to be disabling conditions, but may be considered service-connected solely for the purpose of establishing eligibility for VA outpatient dental treatment.  See 38 U.S.C.A. § 1712; 38 C.F.R. § 3.381(a), 17.161.  The matter of entitlement to service connection for a dental disorder solely for the purpose of establishing eligibility for VA outpatient treatment is addressed in the introduction section of this decision and is referred to the Agency of Original Jurisdiction for appropriate development and adjudication.

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a dental disability for compensation purposes.

The Veteran has stated that he entered service in March 1965 and was examined by a dentist soon thereafter, who found him to be in need of dentures.  In-service dental treatment records do indicate that the Veteran had an initial dental examination in March 1965 and that there were eleven incidents of dental treatment between April 1965 and July 1965.  The treatment records further note that he received dentures in August 1965 with adjustments performed on several occasions through March 1967.  Consistent with the Veteran's descriptions, his service treatment records do not indicate he received dental services while overseas from September 1967 to October 1968.

The Veteran contends that, due to inadequate treatment after receiving dentures during service, he has experienced long-term dental problems.

At his February 2012 Board hearing, the Veteran testified that he did not have any injury or accident that caused his dental problems during active service.  Instead, the Veteran indicated that his current dentist told him that he continued to have problems with his bottom teeth because the treatment with respect to his dentures was not completed during service.  

At his Board hearing, the Veteran submitted a January 2012 estimate of proposed private dental treatment in the amount of $12,865.  The estimate involves providing prophylactic treatment, a complete upper denture, implants, and crowns.  There is no indication of loss of teeth through trauma or disease, such as to osteomyelitis, or impairment of the mandible, loss of a portion of the ramus, or loss of a portion of the maxilla. 

The evidence does not show, nor has the Veteran contended, that he experienced dental disability during service due to loss of teeth due from dental trauma, or bone loss through trauma or disease, such as to osteomyelitis, or impairment of the mandible, loss of a portion of the ramus, or loss of a portion of the maxilla.  As a result, under the undisputed facts of this matter, the criteria for service connection for dental disability for compensation purposes are not met or approximated.  Simmington v. West, 11 Vet. App. 41 (1998).  Thus, the claim for service connection for dental disability for compensation purposes is denied due to the absence of legal merit.  See Sabonis v. West, 6 Vet. App. 426, 430 (1994).  Consequently, the benefit of the doubt rule is not for application in resolution of the appealed claim.  Id. 

Nevertheless, the unadjudicated issue of basic eligibility for VA outpatient dental treatment is raised by the record and is referred to the Agency of Original Jurisdiction for development and adjudication in the first instance.


II.  Diabetes Mellitus

If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e).  Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i).  Section 3.307(d)(6) also provides that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(d)(6)(iii).  Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id.  

The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e).  For purposes of this section, the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), Note 2.  For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i).  Agent Orange is generally considered an herbicide agent and will be so considered in this decision. 

The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). 

The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600 -42608 (2002).  Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120   (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). 

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for type II diabetes mellitus.  

Recently, VA's Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War.  In a May 2010 bulletin, C&P indicated that it has determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes.  A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Based Defense in Thailand.  Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), C&P has determined that there was some evidence that herbicides of a tactical nature, or that of a "greater strength" commercial variant, were used. 

Given this information, C&P has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases.  Consideration of herbicide exposure on a "facts found or direct basis" should be extended to those veterans.  Significantly, C&P stated that "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure."  The May 2010 bulletin identifies several bases in Thailand, including Udorn Royal Air Force Base for the United States Air Force (RTAFB).  C&P indicated that herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by his or her military occupational specialty, performance evaluations, or other credible evidence. 

The Veteran's service records show that he served in Thailand at Udorn Royal Air Force Base for the United States Air Force during the period from September 1967 to September 1968, so that Agent Orange exposure may have occurred, depending on the nature and circumstances of his period of duty there.  

The Veteran has indicated that he served as a supply clerk with the Air Force 432nd Supply Squadron at Udorn Air Force from September 1967 to September 1968.  His service personnel records, including very favorable performance reviews, confirm this fact.  According to the reviews, he successfully assumed responsibility for priority support of over 700 vehicles.  To the benefit of his credibility, the performance reviews describe the Veteran as being extremely conscientious and of sound judgment.

The Veteran has further indicated with maps that he worked as a supply clerk near the perimeter of the Udorn Air Force Base.  Maps of the base do corroborate this claim.  It can be seen that the base supply yard was adjacent to and near the perimeter, as described by the Veteran.

The Veteran has also indicated that his barracks were equally near the perimeter.  He has illustrated by a diagram that his barracks were among the nearest to the perimeter; his assertion is certainly plausible on its face.  In this respect, the Board will afford the benefit of the doubt in favor of the Veteran.  See 38 C.F.R. § 3.102.

The Veteran has further indicated, to include in a statement received by the Board in January 2013, that when he travelled from his barracks to the supply base, he would routinely travel by the road alongside the perimeter.  Based on the layout of the maps of the base, this appears likely. 

The Veteran has also described as part of his duties as a supply clerk handling materials that were not labeled as Agent Orange, but which were damaged and which he knew by their stock numbers to be containers of Agent Orange.  He has additionally described being on a flight, which briefly landed in Vietnam, with some plausible supporting evidence, but currently seeks presumptive service connection based on exposure to Agent Orange while serving at Udorn Royal Air Force Base, rather than by reason of his brief claimed visit to Vietnam.

The Veteran's descriptions are generally credible and consistent with the circumstances of his service and information made public by VA.  Under the ordinary meaning of the words, the evidence demonstrates that the Veteran did serve "near the perimeter" while at Udorn Royal Air Force Base in performing his duties at the supply yard, in living in his barracks, and in travelling from the barracks to the supply yard where he performed his duties.  Accordingly, as a factual matter, the Board finds that it is at least as likely as not that the Veteran was exposed to herbicide agents during his one-year tour of duty at Udorn Air Force base, from September 1967 to 1968.  

In addition, private and VA medical records document the Veteran as currently having type II diabetes mellitus.  Indeed, a November 2011 VA record of primary care treatment documents a diagnosis of insulin-dependent type II diabetes mellitus, stable.  

The evidence shows that the Veteran was at least as likely as not exposed to herbicides during his period of service near the perimeter at Udorn Royal Air Force Base in Thailand and that he currently has diabetes.  As he requires insulin for his diabetes, the disorder is manifested at the compensable level for VA purposes.  See 38 C.F.R. § 4.119, Diagnostic Code 7913.  As noted above, diabetes mellitus shall be presumed to be due to exposure to certain herbicide agents, if it has become manifest to a degree of 10 percent or more at any time after service.  See 38 C.F.R. §§ 3.307, 3.309(e).  Accordingly, after affording the benefit of the doubt in favor of the Veteran under the specific facts of this case, entitlement to service connection for diabetes mellitus is warranted.


ORDER

Entitlement to service connection for diabetes mellitus is granted.

Entitlement to service connection for dental disability for VA compensation purposes is denied.




REMAND

As noted above, the RO denied the Veteran's claims for service connection for hearing loss and bladder cancer in an August 2011 rating decision.  He subsequently submitted a notice of disagreement in September 2011, but a Statement of the Case has not been issued.  Accordingly, the issues are remanded for proper development, to include issuance of a statement of the case.  Manlincon v. West, 12 Vet. App. 238, 240-241 (1999).

The matters are REMANDED for the following action:


The RO should issue a statement of the case addressing the issues of entitlement to service connection for hearing loss and bladder cancer.  The statement of the case should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations.  Thereafter, the appellant should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The RO should advise the appellant that the claims file will not be returned to the Board for appellate consideration of this issue following the issuance of the statement of the case unless he perfects his appeal. 


The purpose of this REMAND is to ensure that the veteran is afforded due process of law.  The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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. 2011).



______________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs