Citation Nr: 1320862 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 07-04 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for diabetes mellitus, Type 2. 2. Entitlement to service connection for peripheral neuropathy of the upper and lower extremities, claimed as secondary to diabetes mellitus, Type 2. REPRESENTATION Veteran represented by: National Association for Black Veterans, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from December 1975 to March 1988, and had additional service in the Reserves and in the Washington National Guard from July 1990 to September 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO). In August 2008 a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In a November 2008 decision, the Board determined that new and material evidence had not been received to reopen the claim of service connection for diabetes mellitus, and denied service connection for peripheral neuropathy of the upper and lower extremities claimed as secondary to the diabetes mellitus. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2009 Order, the Court granted a Joint Motion for Remand (Joint Motion) by the parties (the VA Secretary and the Veteran), vacated the Board's November 2008 decision, and remanded the case to the Board pursuant to 38 U.S.C. § 7252(a) for readjudication consistent with the Joint Motion. In January 2010, January 2012, and April 2012, the Board remanded the case to the RO for additional development. In January 2013, the Board determined that new and material evidence had been presented to reopen the claim of service connection for diabetes mellitus, and remanded the case to the RO for initial consideration of the reopened claim on the merits as well as for adjudication of the inextricably intertwined claim of service connection for peripheral neuropathy of the upper and lower extremities. An issue pertaining to the rating for service-connected lumbosacral intervertebral disc syndrome with strain appears to have been discussed by the Veteran in statements dated in December 2012 and January 2013, which were made a part of the record. A June 2012 rating decision by the Seattle RO denied a higher rating for the lumbosacral spine disability. Information gleaned from VACOLS indicates that the Veteran sent a notice of disagreement (NOD) with that rating decision to the Louisville, Kentucky RO. The NOD is not contained in the record before the Board (and the Board is therefore unable the nature of the Veteran's disagreement). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if action on his part is required. REMAND In January 2013, the Board reopened the claim of service connection for diabetes mellitus and remanded the case to the RO in part to adjudicate de novo the Veteran's claim seeking service connection for diabetes and readjudicate the claim seeking service connection for peripheral neuropathy in light of that determination. The RO was to address all arguments and theories of entitlement raised. For example, it was noted in the remand that the Veteran's representative at the August 2008 Board hearing raised an argument that the Veteran's National Guard service aggravated his diabetes mellitus, which should be addressed. In April 2013 the RO issued a supplemental statement of the case (SSOC) which adjudicated/readjudicated the claims. In the SSOC the RO did not specifically discuss the allegations regarding aggravation of diabetes mellitus by the military that were initially raised at the hearing. Moreover, the SSOC was sent to the Veteran at an old address in the State of Washington, and not at his current address in Kentucky. The SSOC was returned as undeliverable. There is no indication that it was resent to the Veteran at his current address of record. These deficiencies must be corrected as due process is vital to proper appellate consideration. The Board's January 2013 remand also charged the RO to arrange for "all further development indicated." While updated VA treatment records have been obtained and associated with the claims file via the Virtual VA system (i.e., uploaded to the electronic version of his claims file), official certification from the service department regarding the nature of the Veteran's military service in February 1992 remains lacking. In its April 2012 remand, the Board directed that the RO certify the nature of the Veteran's period of service in February 1992. In April 2012, the RO received a response from the National Personnel Records Center (NPRC), stating that the Veteran "performed no active duty other than for training purposes for the period in question," and that he was then serving in the Washington National Guard. Thereafter, in April 2012 the RO contacted the NPRC and Washington State Adjutants General by telephone and received negative responses to its request for records to show the nature of the service period in question (the sources indicated they had previously sent all records to the RO and had no additional records). The RO then certified the unavailability of records in May 2012. Governing law provides that active duty includes active duty for training (ACUDTRA), which includes full-time duty performed by members of the National Guard of any state, under 32 U.S.C. §§ 316, 502, 503, 504, or 505, or the prior corresponding provisions of law. 38 U.S.C.A. § 101(22)(c); 38 C.F.R. § 3.6(c)(3). Inactive duty for training (INACDUTRA) includes service with the Army National Guard of any state (other than for full-time duty) under 32 U.S.C. §§ 316, 502, 503, 504, or 505, or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23)(c); 38 C.F.R. § 3.6(d)(4). Records from St. Clare Hospital indicate that diabetes mellitus was diagnosed during the Veteran's hospitalization there from February 7, 1992 to February 11, 1992. The Veteran has variously asserted that at the time he required hospitalization for what was subsequently diagnosed as diabetes mellitus, he was serving two weeks of active duty and one month of duty with the National Guard. As the NPRC appears to state in April 2012 that during the month of February 1992 the Veteran served on active duty in a training capacity, it still has not been established whether this was ACDUTRA or INACDUTRA. The distinction is dispositive of the claim, because service connection may be established for diseases only if incurred during ACDUTRA, and not during INACDUTRA. The Veteran's Army National Guard Retirement Points History Statement (which has been cited in lieu of certification) reflects that for the period of April 1991 through March 1992, he accrued a total of 15 active duty points; but there is no explanation as to whether these points were earned while he was hospitalized (and diabetes mellitus was diagnosed) in February 1992. While the RO sought additional records via telephone contact in April 2012 with NPRC and Washington State Adjutants General, the responses merely indicated that no further records were available to send to the RO. Service department certification as to whether on February 7, 1992 (a Friday) the Veteran was on ACDUTRA or INACDUTRA (and if so which of these) is necessary. It is regrettable that this case must be returned for additional development yet again; however, it is essential that the Veteran's due process rights are protected and that VA has met its mandated duty to assist the Veteran in the development of his claims. Accordingly, the case is REMANDED for the following: 1. Re-send to the Veteran at his current mailing address in Kentucky, a copy of the SSOC that was previously mailed to him in April 2013 using an old address, which had subsequently been returned to VA as undeliverable. 2. Next, inform the Veteran that a further attempt is being made to certify whether or not on February 7, 1992 he was serving on ACDUTRA or INACDUTRA and if so, which of these. 3. After the foregoing is completed, contact the service department, or any other military entity to which the service department may refer it, and request that it certify one way or another whether on February 7, 1992 (a Friday) the Veteran was serving on ACDUTRA (i.e., full-time duty performed in the Washington National Guard under 32 U.S.C. §§ 316, 502, 503, 504, or 505) or INACDUTRA (i.e., service other than full-time duty performed in the Washington National Guard under 32 U.S.C. §§ 316, 502, 503, 504, or 505), and if so, which. If the service department, or other military entity, is unable to furnish such certification, then it should provide a full explanation for its inability to definitively state whether the Veteran was serving on that date and the type of training, i.e., ACDUTRA or INADUTRA,. All efforts to obtain such certification should be documented in the record, and the Veteran must be notified of the response. 4. Following completion of the foregoing, the RO should adjudicate de novo the Veteran's claim seeking service connection for diabetes mellitus and readjudicate the claim seeking service connection for peripheral neuropathy of the upper and lower extremities in light of that determination. In so doing, the RO should address all arguments/theories of entitlement raised, to include the allegation raised at the hearing that the Veteran's diabetes mellitus was aggravated by the military. If the decision remains adverse to the Veteran, the RO should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. 5. If (as VACOLs suggests) the Veteran has filed a timely notice of disagreement with a December 2012 rating decision denial of an increased rating, issue a SOC in the matter. Advise him that such matter will be before the Board only if he timely submits a substantive appeal following issuance of the SOC. 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 is 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). _________________________________________________ George R. Senyk 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2012).