Citation Nr: 1322928	
Decision Date: 07/18/13    Archive Date: 07/24/13

DOCKET NO.  10-34 686	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus.

2.  Entitlement to service connection for peripheral neuropathy.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

J. Chapman, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1969 to May 1970.  He also had subsequent Navy Reserve service.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  A notice of disagreement was received in November 2009, a statement of the case was issued in July 2010, and a substantive appeal was received in August 2010.  In July 2011, the Veteran testified at a Board videoconference hearing before the undersigned.

The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

The RO has denied the claims on the basis that there is no medical diagnosis of diabetes mellitus.  The Veteran maintains that he has been told he has this disease.  
VA treatment records are conflicting as to whether the Veteran has a diagnosis of diabetes mellitus, and are silent as to whether he has type II diabetes mellitus, as is needed to support a grant of service connection under the presumptive provisions.   See 38 C.F.R. § 3.307.  For example, a November 2005 record shows an assessment of diabetes mellitus, controlled with diet.  In August 2009 and June 2010, nurses notes indicate the Veteran is a diabetic.  However, in May and July 2009 and February 2010, nurses notes indicate the Veteran is not a diabetic. 

As the Veteran has claimed service in Vietnam and postservice treatment records show a possible diagnosis of diabetes mellitus, the "low threshold" standard as to when an examination to secure a nexus opinion is required is met, and development for such an examination is necessary.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

Regarding the Veteran's claim for service connection for peripheral neuropathy, it appears that the Veteran is claiming his peripheral neuropathy is due to herbicide exposure and/or his diabetes.  As such, these issues are inextricably intertwined.  Given that additional development is required for the Veteran's claim of service connection for diabetes mellitus, the Board must defer final appellate review of the peripheral neuropathy issue at this time.

Accordingly, the case is REMANDED for the following actions:

1.  The RO should schedule the Veteran for an appropriate VA examination for his claimed diabetes mellitus disability.  It is imperative that the claims file be made available to and be reviewed by the examiner in connection with the examination.  Any medically indicated special tests should be accomplished, and all examination findings should be clearly reported.  

After a review of the claims file and the examination, the examiner should respond to the following:

     a)  Is a medical diagnosis of diabetes mellitus warranted?  If so, is it Type II?  

     b)  If a form of diabetes other than type II is diagnosed, is it at least as likely as not (a 50% or higher degree or probability) causally related to the Veteran's period of active duty service, to include Agent Orange/herbicide exposure?  

A rationale should be furnished for all opinions with reference to the criteria for diagnosing diabetes mellitus.

2.  After completion of the above (and any additional development which may be deemed necessary), the RO should readjudicate the Veteran's pending claims.  If the Veteran prevails in his claim of entitlement to service connection for diabetes mellitus, then the readjudication of the peripheral neuropathy issue should include consideration of whether service connection for peripheral neuropathy may be warranted as secondary to diabetes mellitus.  The Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond.  The case should then be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  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 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).



_________________________________________________
ALAN S. PEEVY
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).