Citation Nr: 1319461 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 09-37 380A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for diabetes mellitus, due to exposure to herbicides. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from June 1964 to May 1967, including service in Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the issues of entitlement to service connection for diabetes and posttraumatic stress disorder (PTSD). A May 2012 rating decision granted service connection for PTSD and assigned a 50 percent rating effective August 10, 2006, the date of claim. Because entitlement to service connection for PTSD has been granted, it is no longer part of the Veteran's appeal. 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. The issues of entitlement to service connection for heart disease and prostate cancer due to exposure to herbicides were raised on behalf of the Veteran in May 2013, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. REMAND The following diseases are deemed associated with herbicide exposure, under VA law: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma and diabetes mellitus (Type 2). The foregoing diseases shall be service connected if a Veteran was exposed to a herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service. 38 C.F.R. § 3.309(e) (2012). A disease associated with exposure to herbicide agents listed in § 3.309 will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during service, provided that the disease listed shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii) (2012). The Veteran had service in Vietnam and, therefore, is presumed to have been exposed to herbicides like Agent Orange. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307 (2012). Although there is no diagnosis of diabetes on file, the Veteran essentially contends that he has been treated by a private physician for early manifestations of diabetes, and he states that he was told he had diabetes. He is competent to report what he was told by a Doctor regarding his diagnosis. See Jandreau v. Nicholson, 492 F.3d. 1372 (Fed. Cir. 2007). No VA examination of the Veteran to determine whether he currently has diabetes has been conducted. The Veteran is presumed to have been exposed to herbicides in Vietnam, and is competent to report what he was told by his doctor. A VA examination is needed to determine if he has diabetes. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on the above, this case is REMANDED for the following actions: 1. The AMC/RO will 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 diabetes since April 2010, which is the date of the most recent VA treatment records on file. Based on his response, the RO must secure any appropriate consent from the Veteran and attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Following the above, the AMC/RO should schedule the Veteran for an examination to determine if the Veteran currently has diabetes. The claims file should be made available for review, and the examination report should reflect that such review occurred. All tests or studies necessary to make these determinations must be conducted. After review of the claims file and examination of the Veteran, the examiner will provide an opinion on whether the Veteran currently has diabetes. All pertinent symptomatology and findings must be reported in detail. A complete rational must be provided for any opinion offered. 3. The AMC/RO will notify the Veteran that it is his responsibility to report for the above examination and to cooperate in the development of the claim; he will also be notified that the consequences for failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655. 4. Thereafter, the AMC/RO should consider all of the evidence of record and re-adjudicate the Veteran's claim for service connection for diabetes mellitus due to exposure to herbicides. If the benefit sought on appeal remains denied, the Veteran and his representative should 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 should be allowed for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the AMC/RO. 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 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). _________________________________________________ ROBERT C. SCHARNBERGER 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 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).