Citation Nr: 1323323 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 09-40 695 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran's active military service extended from July 1967 to November 1969 and from December 1974 to February 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, under cover letter from the VA RO in Detroit, Michigan. That rating decision, in part, denied service connection for diabetes mellitus. The case was previously before the Board in March 2012, when it was remanded for examination of the veteran and medical opinions. The requested development has been completed. This appeal contains a hybrid record; part is in a physical claims folder and in part is in the Virtual VA paperless claims processing system. The issue of entitlement to service connection for ischemic heart disease has been raised by the record, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam. 2. The Veteran has a current diagnosis of diabetes mellitus, type II. CONCLUSION OF LAW Diabetes mellitus, type II was incurred in active military service as a result of exposure to Agent Orange. 38 U.S.C.A. §§ 101(16), 1110, 1116, 5107(a) (West 2002 & Supp 2012); 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(e) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA is required to meet the notice and duty to assist provisions of 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Given the favorable outcome below, no conceivable prejudice to the Veteran could result from the grant of service connection for the Veteran's claimed disability of the hands and arms. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder, the following must be shown: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). VA regulations provide that, if a veteran was exposed to an herbicide agent (Agent Orange) during active service, presumptive service connection is warranted for type 2 diabetes. Presumptive service connection for this disorder as a result of Agent Orange exposure is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2012). The governing law provides that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f) (West 2002). The evidence of record establishes that the Veteran was a Navy Sea Bee and that he served in Vietnam during his first period of active duty service which extended from July 1967 to November 1969. Accordingly, he is presumed to have been exposed Agent Orange during active service. The key issue in this appeal is whether the Veteran has a current diagnosis of type II diabetes mellitus. VA treatment records associated with the claims file reveal diagnoses of diabetes mellitus. A March 2007 VA treatment record found increased glucose and obesity. The Veteran weighed 297 pounds at the time. The examiner indicated that the Veteran's glycosylated hemoglobin (A1c) was above the normal range, was very overweight, had poor activity levels, and no diet plan. The examiner prescribed a low dose of glypizide, which is an oral medication used to treat diabetes. A July 2007 VA treatment record diagnosed diabetes and instructed that the Veteran continue 2.5 milligrams (mg) of glypizide daily. The Veteran weighed 248 pounds at the time, and he was instructed to adhere to both his medication regimen and a healthy lifestyle, consisting of good nutrition and regular, aerobic exercise. A November 2007 VA treatment note diagnosed obesity and diabetes mellitus "diet controlled and monitor in 6 months." This treatment note continued to list 5 mg of glypizide among the Veteran's active outpatient medications, noting that the prescription was issued in March 2007, last filled in June 2007, and set to expire in March 2008, although the prescription was indicated to be on "hold" status. In a March 2008 VA outpatient treatment record, obesity and diabetes mellitus were diagnosed noting "diet controlled and monitor in 6 months." This treatment note continued to list 5 mg of glypizide among the Veteran's active outpatient medications, noting that the prescription was issued in March 2007, last filled in June 2007, and set to expire in March 2008, although the prescription was still indicated to be on "hold" status. The Veteran was then afforded a VA diabetes mellitus examination in April 2008. The VA examiner indicated that the Veteran did not warrant a diagnosis of diabetes mellitus. The examiner further stated that the Veteran "went for a routine physical and was told that he had [diabetes mellitus]. He was started on glypizide and in 3 months he had exercised and lost 95 lbs. of wieght [sic] he was taken off the medication." The examiner noted that the Veteran's course was "stable" since onset and that his current treatment was diet alone, with no medication. The Veteran weighed 195 pounds at this time. The examiner concluded that the Veteran did not have diabetes because, although high blood sugar was diagnosed, he lost 98 pounds of weight and was not on any medication since June 2007. The examiner also noted that the Veteran had no end organ damage and no renal, neurological, or cardiac problems. Furthermore, the Veteran's A1c was 5.0, his creatinine was 0.9, and his uric acid was normal. Although the April 2008 examination report reflected that the VA examiner reviewed the Veteran's claims file, it indicated that the Veteran was not on any medication to control his diabetes since June 2007, although a July 2007 VA treatment note explicitly instructed the Veteran to continue 2.5 mg of glypizide daily. Private medical records dated January 2008 reveal that the Veteran was being treated for cardiac catheterization. These records indicate a current active diagnosis of diabetes mellitus at that time. Because it was unclear that the all of the treatment records pertinent to the Veteran's claim were reviewed and considered in the VA examiner's April 2008 opinion, the Board remanded the appeal in March 2012. Another VA Compensation and Pension examination of the Veteran was conducted in January 2013. The examiner's medical opinion was that the Veteran did not warrant a diagnosis of diabetes mellitus and that the evidence of prior diagnoses was not supported by the appropriate objective medical test results. A May 2013 private medical report reveals a diagnosis of type II diabetes mellitus. Moreover, an addendum reveals test results of "A1C 7.8," which meets the criteria for a diagnosis of diabetes mellitus based upon the criteria supplied by the VA examiner in the January 2013 examination report. The Addendum specifically states that the Veteran was to be started on metformin, another oral diabetic medication. A June 2013 letter from the Veteran's private physician unequivocally states that the Veteran has a diagnosis of non-insulin dependent diabetes mellitus and that he was on treatment for it. The requirement of a current disability is met when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). Despite the findings of the two VA Compensation and Pension examinations, the private and VA treatment records clearly show that the Veteran has a diagnosis of type II diabetes mellitus and that he has required treatment with prescription medication. The Veteran served in Vietnam during the requisite period of time. He is presumed to have been exposed to Agent Orange. He has a current diagnosis of type II diabetes mellitus. Accordingly, service connection for diabetes mellitus, type II must be granted. ORDER Service connection for diabetes mellitus, type II is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs