Citation Nr: 1325173 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 11-23 864A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus due to Agent Orange exposure. 2. Entitlement to service connection for hypertension, secondary to diabetes mellitus. 3. Entitlement to service connection for peripheral neuropathy of the upper extremities, secondary to diabetes mellitus. 4. Entitlement to service connection for peripheral neuropathy of the lower extremities, secondary to diabetes mellitus. 5. Entitlement to service connection for retinopathy, secondary to diabetes mellitus. 6. Entitlement to service connection for atypical chest pain, secondary to posttraumatic stress disorder (PTSD). (The issue entitlement to a retroactive induction into a program of service to complete medical school training at the University del Noreste in Tampico, Mexico, between 1993 and 2001 is addressed in a separate Board decision). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from August 1971 to May 1972. These matters come before the Board of Veterans' Appeals (Board) from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In February 2013, the Veteran testified during a hearing at the RO before the undersigned; a transcript of that hearing is of record. The undersigned held the record open for 30 days after the hearing, during which the Veteran submitted additional evidence along with a waiver of initial RO review of this evidence. The Board will therefore consider this evidence. 38 C.F.R. § 20.1304(c) (2013) (requiring remand for initial agency of original jurisdiction unless this right is waived by the appellant or his representative). Following review of the record, the issue of entitlement to service connection for atypical chest pain, to include secondary to posttraumatic stress disorder, is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. The Veteran served in Vietnam. 2. The evidence is at least evenly balanced as to whether the Veteran has diabetes mellitus. 3. Hypertension is caused by diabetes mellitus. 4. Peripheral neuropathy of the upper extremities is caused by diabetes mellitus. 5. Peripheral neuropathy of the lower extremities is caused by diabetes mellitus. 6. Retinopathy is caused by diabetes. CONCLUSIONS OF LAW 1. Diabetes mellitus is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Hypertension is proximately due to or the result of service-connected diabetes mellitus. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.310 (2012). 3. Peripheral neuropathy of the upper extremities is proximately due to or the result of service-connected diabetes mellitus. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.310. 4. Peripheral neuropathy of the lower extremities is proximately due to or the result of service-connected diabetes mellitus. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.310. 5. Retinopathy is proximately due to or the result of service-connected diabetes mellitus. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). As the Board is, however, granting the claims addressed on the merits, further discussion of the VCAA is unnecessary. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). Diabetes VA laws and regulations provide that, if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected if they manifest to a compensable degree at any time after service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a). Diabetes mellitus, Type 2, is one of the listed diseases. 38 U.S.C.A. § 1116(a)(2)(H); 38 C.F.R. § 3.309(e). A Veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran's DD Form 214 reflects that he served in Vietnam. The Veteran has also been diagnosed with diabetes mellitus. For example, the private medical records submitted by the Veteran after the Board hearing include the following: a Medical Transcription History from DIF Reynosa with notations dated between February 2008 and December 2011 that includes a diagnosis of diabetes mellitus; a February 2013 Disability Benefits Questionnaire prepared by a private physician, "A.G.," containing diagnoses of diabetes mellitus; and a February 2012 VA-authorized examination contains diagnoses of diabetes. The Board acknowledges the fact that an August 2010 VA treatment note indicates that the Veteran did not have diabetes mellitus and that a previous diagnosis of the disease was incorrect. The Board also acknowledges a March 2012 VA treatment note which indicated that the Veteran had impaired fasting glucose but no diagnosis of diabetes mellitus. As there are multiple conflicting medical opinions as to whether the Veteran has diabetes mellitus, each made by qualified health care professionals, the evidence is at least evenly balanced on this question. VA law and regulations require that reasonable doubt be resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b). In addition, there is some evidence that the Veteran's diabetes is managed by a restricted diet, some of which is based on his own competent testimony, and the Board notes that he is a physician. Hence, the Board resolves reasonable doubt in favor of the Veteran to find that his diabetes mellitus has manifested to a compensable degree since his separation from active duty. As the Veteran has diabetes mellitus that has manifested to a compensable degree and as he served in Vietnam, the appellant is entitled to the presumption that this disease is related to Agent Orange exposure. Entitlement to service connection for diabetes mellitus is therefore warranted on a presumptive basis. Secondary Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(b). Hypertension The Veteran has been diagnosed with hypertension, including by Dr. A.G. Dr. A.G. indicated that hypertension was both caused and aggravated by diabetes. The February 2012 VA examination also found that the appellant's hypertension was at least as likely as not due to diabetes. There is no contrary opinion of record. Hence, the Veteran's hypertension is proximately due to or the result of his service-connected diabetes. Entitlement to service connection for this disease is thus warranted on a secondary basis. Peripheral Neuropathy The Veteran has been diagnosed with peripheral neuropathy of the upper and lower extremities, including at a February 2012 VA-authorized examination. The examiner diagnosed diabetic neuropathy of the bilateral upper and lower extremities, and opined that the disorder was caused by diabetes mellitus. As upper and lower extremity peripheral neuropathy are proximately due to or the result of a service-connected disease, entitlement to service connection for these disabilities is warranted. Retinopathy The Veteran has been diagnosed with retinopathy, including in the DIF Reynosa Medical Transcription History. Moreover, Dr. A.G. specifically indicated that the Veteran had diabetic retinopathy. There is no contrary medical opinion in the evidence of record. The evidence thus reflects that the Veteran has retinopathy that is proximately due to or the result of his diabetes mellitus. Hence, entitlement to service connection for diabetic retinopathy is granted. ORDER Entitlement to service connection for diabetes mellitus due to Agent Orange exposure is granted. Entitlement to service connection for hypertension, secondary to diabetes mellitus, is granted. Entitlement to service connection for peripheral neuropathy of the upper extremities, secondary to diabetes mellitus is granted. Entitlement to service connection for peripheral neuropathy of the lower extremities, secondary to diabetes mellitus, is granted. Entitlement to service connection for retinopathy, secondary to diabetes mellitus, is granted. REMAND The Veteran claims entitlement to service connection for atypical chest pain, to include secondary to posttraumatic stress disorder. Both the DIF Reynosa Medical Transcription History and Dr. A.G. indicated that the Veteran suffers from atypical chest pain due to posttraumatic stress disorder. Significantly, while the United States Court of Appeals for Veterans Claims has held that pain alone is not a disability, see Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), the Court has also held that pain which causes a functional limitation can be considered a disability. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Consequently, in light of the favorable opinion from DIF Reynosa, and the case law of the Court, the Board finds further development to be in order. Therefore, this case is REMANDED for the following action: 1. The AMC/RO must request that the appellant identify any medical records which are not currently in the possession of VA that would demonstrate a functional loss due to chest pain, as well as any additional medical records which would demonstrate a relationship between atypical chest pain and his service connected posttraumatic stress disorder. Thereafter, the AMC/RO must attempt to retrieve all pertinent VA and private records that have not previously been added to the record. All attempts to secure this evidence must be documented in the claims file. If the AMC/RO cannot locate these records, the AMC/RO must document the attempts that were made to locate them, and explain in writing why further attempts to locate or secure them would be futile. The AMC/RO must then: (a) notify the claimant of the specific records that it is unable to retrieve; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Thereafter, the appellant must be scheduled for a VA medical examination to determine the nature of any diagnosed atypical chest pain. The claims folder and access to Virtual VA must be provided to the examiner for review in connection with the examination. After examining the appellant and reviewing the claims folder and Virtual VA, the examiner must address whether it is at least as likely as not that any atypical chest pain is caused or aggravated by the Veteran's service connected posttraumatic stress disorder. If atypical chest pain is found to be related to posttraumatic stress disorder the examiner must address the nature and extent of any functional impairment to the appellant's chest due to that pain. A complete and fully reasoned rationale must be provided for any opinion offered. 3. The Veteran is notified that it is his responsibility to report for VA examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. The AMC/RO must review the examination report to ensure that it complies with this remand. If it is deficient in any manner, the AMC/RO must implement corrective procedures. 5. After taking any further development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, provide the appellant and his representative a supplemental statement of the case and afford them an opportunity to respond before the case is returned to the Board. 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 claims 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). ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs