Citation Nr: 1320091 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 12-24 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from July 1981 through August 1985 and the Air Force from October 2001 to January 2002. The Veteran also had subsequent service in the Army Reserves, the Marine Corps Reserves, the California Army National Guard, and the California Air National Guard from August 1985 through June 2005 with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in San Diego, California. 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 Regrettably, a remand is necessary for further evidentiary development. The Veteran contends that his diabetes disability was diagnosed and onset while he was on active duty as a member of the California Air National Guard in 2005. See Veteran's January 2010 Claim. The Veteran also claims that his diabetes disability is related to active military service. See VA Form 9. A service connection benefit may be granted for a disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA). 38 U.S.C.A. §§ 101(24), 106, 1131 (West 2002); 38 C.F.R. § 3.6 (2012). The presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 do not apply in the absence of the appellant securing Veteran status for the particular period in question. Biggins v. Derwinski, 1 Vet. App. 474 (1991). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Additionally, silence of the record on this point may not be taken as indication of no aggravation. An opinion must be provided. See Verdon v. Brown, 8 Vet. App. 529; Wisch v. Brown, 8 Vet. App. 139 (1995). In order to determine whether the Veteran's diabetes disability is connected to active service, it is imperative that all evidence of the dates of active service and of ACDUTRA, around the date of the diagnosis of Veteran's diabetes disability, be associated with the claim file. In a statement received by the RO in February 2010, as well as in subsequent statements in October 2004 and in April 2010, the Veteran's private physician (Dr. D. N.) reports that the Veteran's diabetes was diagnosed in January 2004. The claim file does contain the Veteran's treatment records while under the care of Dr. D. N.; however, the records associated with the claim file do not include records of the Veteran's diagnosis and do not pre-date April 2004. Accordingly, all necessary efforts should be made to obtain the Veteran's treatment records from Dr. D. N. In April 2010 the VA afforded the Veteran a fee based examination in connection to his current service connection claim for diabetes mellitus, type II. The Board finds that VA has not completed its duty to assist the Veteran because the examination afforded to the Veteran was inadequate. If VA provides the claimant an examination in accordance with a duty to assist, the examination must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The medical examiner diagnosed the Veteran with adult onset diabetes mellitus, but failed to provide a medical opinion as to whether the Veteran's diabetes mellitus is at least as likely as not caused by and/or the result of military service. Consequently, an addendum medical opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. Verify the Veteran's periods of active duty and ACDUTRA from January 2004 through April 2004. 2. After obtaining the appropriate release of information forms where necessary, the medical treatment records related to the Veteran's diabetes disability, from his private physician Dr. D. N., from January 2004 and February 2004, to include lab reports, should be associated with the claim file. 3. Return the claim folder to the April 2010 examiner to obtain an addendum opinion regarding the Veteran's diabetes mellitus. If the April 2010 examiner is not available, the Veteran should be accorded a new VA examination by another medical professional. The Veteran's claim file, including a copy of this Remand, must be made available to the examiner for review in connection with the opinion. A notation that this review has occurred should be annotated in the addendum opinion. The examiner is requested to review the record, and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's diabetes mellitus had its clinical onset in active service or ACDUTRA or is otherwise related to active service or ACDUTRA. In answering this question, the examiner should address the Veteran's lay statements regarding the onset of his diabetes mellitus disability and the objective medical evidence. If necessary, all indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claim file. A complete rationale should be given for all opinions and conclusions expressed. If the examiner finds that he/she must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity that this question is outside the scope of a medical professional conversant in VA practices. 4. Ensure that the examination report complies with (answer the questions posed in) this Remand. If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 5. The issue on appeal should then be readjudicated. If the benefit sought is not fully granted a supplemental statement of the case should be issued to the Veteran and his representative and they should be afforded an opportunity to respond thereto. 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 claim 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). _________________________________________________ MILO H. HAWLEY 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).