Citation Nr: 1320959 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 08-26 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for type I or type II diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1970. This matter arises before the Board of Veterans' Appeals (Board or BVA) from an October 2006 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing held at the RO in May 2011. This case was then Remanded in September 2011 for additional development and readjudication. Such development having been completed, it has been returned to the Board for further appellate review. In this case, recent VA medical records, available through the Compensation and Pension Records Interchange (CAPRI), were uploaded to the Veteran's electronic Virtual VA folder in April 2012 and considered by the RO in the most recent Supplemental Statement of the Case. Because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam era, and is presumed to have been exposed to herbicides (to include Agent Orange) while in military service. 2. There is at least an approximate balance of positive and negative evidence on the question of whether the Veteran has a current diagnosis of diabetes mellitus type II. CONCLUSION OF LAW Resolving the benefit of the doubt in favor of the Veteran, diabetes mellitus is presumed to have been incurred in service due to herbicide exposure. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist a claimant in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). The VCAA applies in the instant case. However, the Board's grant of service connection for diabetes mellitus herein represents a complete grant of the benefit sought on appeal. Thus, no further discussion of VA's duty to notify and assist is necessary. Law and Analysis The Veteran seeks to establish service connection for type I or type II diabetes mellitus on a presumptive basis due to his alleged exposure to herbicide agents during active service. He claims that he had undiagnosed type II diabetes mellitus, which manifested before his diagnosed type I diabetes mellitus. See VA Form 21-4138 dated in February 2006. More recently the Veteran has claimed that his type I diabetes mellitus developed due to his conceded Agent Orange exposure in service on a direct basis. He argues that his exposure to dioxin (Agent Orange) in Vietnam was the trigger that induced an autoimmune response leading to the subsequent diagnosis of type I diabetes many years later. See May 2011 hearing transcript. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as diabetes mellitus, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection is 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). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(a). When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. Service connection can also be established on a presumptive basis for certain diseases associated with exposure during service to herbicides. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. For purposes of establishing service connection for a disability claimed to be a result of exposure to Agent Orange, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f). The applicable criteria also provide that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), 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 the period of service. 38 C.F.R. § 3.307(a). Diabetes mellitus type II is such a disease. 38 C.F.R. § 3.309(e). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically been determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586-57589 (1996). Nevertheless, even if a veteran is found not to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The evidence of record shows that the Veteran served in the Republic of Vietnam from February 1968 to February 1969 and is therefore presumed to have been exposed to Agent Orange or other herbicide agents. See VA Form 3101 dated in June 2006. However, the one area of contention that has remained in dispute has been whether the diabetes that the Veteran developed was type I or type II. As noted previously while diabetes mellitus, type II is subject to the presumption of service connection for herbicide exposure, diabetes mellitus, type I is not. 38 C.F.R. § 3.309(e). Unfortunately, the record as to whether the Veteran had type I or type II diabetes is not consistent. There are numerous private records from the Veteran's various treating providers that document diabetes mellitus, juvenile onset since June 1992. See Billing Record dated June 17, 1992; Diabetes Care Management Program Notes from Kaiser Permanente dated in April 1997, November 2002, March 2003, and April 2004 and records from John Muir Medical Center dated in October 1995, May 1999, August 2001, and June 2002. Also of record is a July 2006 VA examination report. At that time the examiner noted that the Veteran did not have, and had not been diagnosed with, type II diabetes mellitus. Rather he had type I diabetes mellitus with a history of diabetic ketoacidosis in 1996. Although the examiner provided a general statement as to a possible relationship between type I diabetes mellitus and dioxin (Agent Orange) exposure, he did not provide a definitive opinion. VA treatment records dated from 2007 to 2011 have been associated with the claims folder and for the most part contain diagnoses of diabetes mellitus with inconsistent references as to which type. For instance, an entry dated in August 2007 shows a diagnosis of diabetes mellitus type II or unspecified. See VA Gastrointestinal Consult Note dated August 23, 2007. In addition, a VA treatment record dated in March 2009, shows a diagnosis of diabetes mellitus, type II or unspecified was included on the Veteran's computerized problem list. However other VA treatment records continue to show that the Veteran had documented insulin dependent diabetes mellitus since 1992, but do not always indicate whether it is type I or type II. The most recent records are from the Veteran's VA endocrinologist and show several diagnoses of diabetes mellitus type I, including an entry dated in March 2010, in which the Veteran was given an assessment of brittle Type 1 diabetes in fair control. Subsequently dated records contain diagnoses of only diabetes mellitus without reference as to which type. See VA Endocrinology Consultation Notes from Dr. A. Swislocki, dated March 29, 2010, April 30, 2010, September 13, 2010 March 14, 2011. As the medical evidence showed diagnoses of type I diabetes mellitus, a disease not included in the list of presumptive diseases based upon herbicide exposure; and type II diabetes mellitus, a disease included in the list of presumptive diseases based upon herbicide exposure, VA sought a medical opinion addressing which type of diabetes mellitus the Veteran had. The Veteran was afforded a VA examination in October 2011. The examiner confirmed the diagnosis of diabetes mellitus type I and opined that it was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event or illness. Her rationale was based on review of the claims file, CPRS progress notes, and the current literature based on Up-to-Date review on the pathogenesis of type I diabetes mellitus. She explained that there were two types of diabetes type I, type 1A and type 1B. Type 1A results from autoimmune destruction of the insulin-producing beta cells in the islets of Langerhans. This process occurs in genetically susceptible subjects and is probably triggered by one or more environmental agents, and usually progresses over many months or years during which the subject is asymptomatic and euglycemic. On the other hand, Type 1B diabetes refers to non-autoimmune islet destruction. She then noted that the Veteran served in Vietnam and was exposed to Agent Orange, which is a toxic environmental agent that has been implicated or conceded to diabetes type II. Since diabetes type I, whether it is 1A or 1B according to the literature, environmental toxins can trigger the process of destruction of the insulin producing beta cells causing the diabetes. This can occur even at a later age which is the case with the Veteran as he was diagnosed in 1992 when he was 45 years old. For further medical comment on this issue, the RO requested a VA opinion in April 2012 from a specialist in endocrinology who reviewed the detailed medical record and concluded that the Veteran's clinical course was entirely consistent with the clinical diagnosis of type I diabetes mellitus. She noted that the distinction between type I and type II diabetes is not always easily discerned and acknowledged that it has more recently been appreciated that there was some overlap in the features that distinguish the two. She stated that insulin-dependence, BMI (body mass index) and a history of diabetic ketoacidosis do not always distinguish between type I and type II diabetes. More recent classification strategies make provision for the heterogenous nature of diabetes, and emphasize that the presence of GAD autoantibodies and low negligible levels of insulin as measured by C-peptide, were markers for type I. She then noted that the Veteran had been diagnosed with diabetes in June 1992 at age 44 and that while he has alternatively been described as having type II diabetes, he most certainly has type I. The specialist based this on several factors including the Veteran's insulin dependence since the diagnosis in 1992, his consistently normal BMI, his admission in the mid 1990s for diabetic ketoacidosis, elevated GAD-65 antibodies in April 2012, and an undectable C-peptide. She indicated that there were all consistent with type I diabetes, possibly of the LADA (latent autoimmune diabetes in adults) type, thus explaining the Veteran's later in life diagnosis. In an effort to fully and fairly examine the basis of the Veteran's conclusion that his type I diabetes at age 44 was triggered by his in-service Agent Orange exposure, the endocrinologist did a comprehensive literature search of peer-reviewed articles using several databases and various search terms. She summarized the results of her search noting the various possible etiologies for type I diabetes (genetic, environmental, dioxin and the immune system). In discussing her research results, she explained that there was a dearth of literature addressing a direct relationship between Agent Orange and type I diabetes. Moreover there were no consistent studies to date in the peer-reviewed literature to specifically support a direct causal link between Agent Orange and type I diabetes, either associatively, epidemiologically, or mechanistically. That is not to say that future research may be more suggestive of such a linkage, however the current published evidence does not consistently suggest such an association. The VA specialist then concluded that while other potential etiologies as discussed above (genetic, viral, dietary) may have played a role in the development of type I diabetes, it would be difficult to conclude that it was more likely than not a direct result of Agent Orange Exposure. The Veteran then submitted an August 2012 medical opinion from his treating VA physician, Dr. Swislocki, who concluded that it was as likely as not, that the Veteran had type II diabetes, resulting from Agent Orange exposure, which over time, has progressed to the point of requiring insulin. He also noted that it was also possible that Agent Orange had affected the Veteran's immune system so that it now manifests antipancreas antibodies (glutamic acid decarboxylase). In support of his opinion he noted that recent specialized lab studies, obtained to try and clarify the Veteran's diabetes, revealed elevated glutamic acid decarboxylase antibodies, consistent with type I diabetes. He also noted the Veteran had been told that he has no insulin production. The examiner stated that the classification of diabetes was evolving and that it was increasingly apparent that there were adults who develop traditional type I diabetes, as well as children who develop type II diabetes. There were also adults who manifest latent autoimmune diabetes of the aged, who initially present as type II diabetes, but eventually become insulin dependent. Most of the literature in Agent Orange and diabetes refers to insulin resistance and diabetes, consistent with type II diabetes. However, there was also growing literature that Agent Orange can impact the immune system. In determining if service connection is warranted for disease or disability, VA must settle on whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After careful review of the evidence of record, and in light of the conflicting medical opinions discussed above, the Board is satisfied that the Veteran's diabetes mellitus cannot be clearly disassociated from his exposure to Agent Orange during military service. The Board has carefully considered the contradictory medical opinions of record. The underlying question is clearly medical in nature. The Board begins by noting that the evidence in support of the Veteran's claim consists of the August 2012 VA opinion, from the Veteran's VA treating endocrinologist, Dr. Swislocki, which states that the Veteran has type II diabetes. In contrast, the evidence against the Veteran's claim consists of a lengthy, comprehensive, June 2012 VA opinion in which a VA specialist in endocrinology cited multiple factors which favor a diagnosis of type I diabetes. In this regard the Board notes that the professional qualifications of the medical providers are basically equal and that both physicians cited to medical literature to support their conclusions. However with regard to both medical opinions in this case, there are aspects of each that tend to lessen their probative value, so that in the end they are of relatively equal probative value. The VA specialist conducted an extensive review of the record, presented an in-depth discussion of the medical evidence. She cited to the Veteran's laboratory results, noted the medical distinctions between the two types of diabetes, cited information regarding common findings seen in patients with diabetes mellitus, type, and provided rationale for her conclusion that the Veteran's diabetes mellitus was likely type II. Unfortunately she based her analysis on an incorrect standard in reaching her medical concludsion. She used the phrase "more likely than not" in determining whether the Veteran's diabetes is etiologically related to his in-service Agent Orange exposure. Whereas VA requires only that a condition be "at least as likely as not" caused or aggravated by service in order to grant service connection. 38 C.F.R. § 3.102 (2012). On the other hand, Dr. Swislocki acknowledges that the Veteran has clinical features that favor type I diabetes, including specialized lab studies, but then classified the Veteran's diabetes as type II. At no time does he refer to laboratory findings that definitively support his position, but rather seems to base his conclusion on the fact that "the classification of diabetes is evolving," or that there is "growing literature that Agent Orange can impact the immune system." In this case, the Board finds Dr. Swislocki's medical nexus opinion to be inadequate in that it yields only conclusions and does not sufficiently explain the rationale behind the conclusions. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (citing Stefl v. Nicholson, 21 Vet. App. 120 124 (2007)). An adequate medical examination "must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions" and must "provide sufficient detail for the Board to make a fully informed evaluation of whether direct service connection is warranted." Stefl, 21 Vet. App. at 124. The Board finds that the opinion is insufficient to rebut the opinion provided by the VA specialist. Under the circumstances of this particular case, the Board finds that, at the very least, the evidence is in approximate balance, with no sound basis for choosing one medical opinion over the other. To be sure, the Board is not entirely satisfied with either medical opinion. That said, there is no adequate reason to reject the medical opinion of record that is favorable to the Veteran. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole); Evans v. West, 12 Vet. App. 22, 26 (1998). While the supporting medical evidence is not unequivocal, it has nevertheless placed the pertinent record in relative equipoise. Consequently, the Board resolves all benefit of the doubt in the Veteran's favor and grants service connection for diabetes mellitus. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for diabetes mellitus is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs