Citation Nr: 1326071 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 10-36 312 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus, claimed as due to exposure to herbicides. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to April 2970. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2008 rating decision in which the RO denied service connection for diabetes mellitus, type II, bilateral hearing loss, erectile dysfunction, hypertension, a chronic skin condition, arthritis of the right and left hips and arthritis of the right and left knees. In June 2009, the Veteran filed a notice of disagreement (NOD) with regard the denial of service connection for diabetes mellitus, type II, bilateral hearing loss, erectile dysfunction, hypertension, chronic skin condition and arthritis of the right hip. The RO issued a statement of the case (SOC) on all the issues in August 2010. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2010, but only for the claims involving diabetes mellitus, type II, and bilateral hearing loss; in February 2011, the RO issued a supplemental SOC (SSOC) reflecting continued denial of these claims. In June 2011, the Veteran testified during a Board video- conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. For the reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant when further action, on his part, is required. REMAND The Board's review of the record reveals that further RO action in this appeal is warranted. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4)(i) (2012). The threshold for determining whether the evidence 'indicates' that there 'may' be a nexus between a current disability and an in- service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. In regards to the Veteran's claimed diabetes mellitus, VA medical records document that the Veteran has a history of diabetes mellitus controlled by diet (such as in a June 15, 2010 record). However, there is no record of any laboratory or testing results confirming a diagnosis of diabetes mellitus. Additionally, service personnel records document that the Veteran served in Vietnam between January 9, 1962 and May 7, 1975. The Veteran is thus presumed to have been exposed to an herbicide agent (see 38 C.F.R. § 3.307(a)(6)(iii)) and diabetes mellitus, type II, among the disabilities recognized by the VA Secretary as etiologically7. Given the presumed exposure to herbicides and the record indicating that the Veteran may have diabetes mellitus, a VA examination is necessary to confirm whether he currently has diabetes mellitus. As for the claimed bilateral hearing loss, the record reflects current evidence of bilateral hearing loss, including both sensorineural and mixed hearing loss. Furthermore, the Veteran has reported in-service noise exposure (including from the flight line and munitions noise exposure), without hearing protection, and has continuity of symptomatology since service which, by itself, indicates that such disability may be associated with service. See Duenas v. Principi, 18 Vet. App. 512 (2004). Accordingly, the Board finds that VA examination, by an Ear, Nose and Throat (/ENT) physician or an audiologist-with appropriate testing and medical opinion-is needed to resolve the hearing loss claim.. The Veteran is hereby notified that failure to report to any scheduled examination(s) ands//or testing, without good cause, may result in denial of the claim(s) for service connection. See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination(s) and/or testing, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date(s) and time(s) of the appointment(s) sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record is complete, the RO should obtain and associate with the claims file all outstanding, pertinent records, As for VA records, the claims file currently includes outpatient treatment records from the VA Medical Center (VAMC) in Pittsburgh, Pennsylvania from June 2009 until December 2010. Records from prior to June 2009 and more recent records from December 2010 from this facility likely exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the Pittsburgh VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated from prior to June 2009 and from December 2010, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran provide, or provide appropriate authorization(s) for it to obtain, any outstanding, pertinent private medical records.-to include from West Virginia Family Medicine (referenced in the May 2008 claim application) and Dr. Whitmore with WVU (referenced during the June 2011 Board hearing). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The Board further notes that the Veteran's representative provided a May 2011 statement wherein it claimed that it was providing evidence of a diagnosis of diabetes mellitus. The medical evidence attached to that statement involved records for an individual other than the Veteran. The RO should request that the Veteran's representative provide the evidence of a diagnosis that it intended to provide in May 2011. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED for the following actions: 1. Request from the Veteran's representative a copy of a medical record of a diagnosis of diabetes mellitus (referenced, but not provided), with a May 2011 statement from the representative) during the Board hearing.. 2. Obtain from the Pittsburgh VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated prior to June 2009 and from December 2010. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the claims for service connection for diabetes mellitus and/or bilateral hearing loss that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private medical records-to include from West Virginia Family Medicine (referenced in the May 2008 claim application), Dr. Whitmore with WVU (referenced during the June 2011 Board hearing), Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim(s) within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA diabetes mellitus examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND and printed copies of pertinent records from the paperless, electronic Virtual VA file (if the examiner does not have access) must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented history and assertions. All indicated tests and studies (to include laboratory tests, if necessary) should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly indicate whether the Veteran currently has diabetes mellitus, type II. If so, the examiner should also offer an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset during his active duty service, or is otherwise medically related to service. In rendering the requested opinion, the examiner should specifically consider the in- and post-service treatment records, the Veteran's conceded exposure to herbicides and the Veteran's contentions. The examiner should set forth all examination findings, along with the complete rationale for the conclusion reached, in a printed (typewritten) report. 6. After all records/responses received are associated with the claims file, arrange for the Veteran to undergo a VA examination, by an ENT physician or an audiologist, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND and printed copies of pertinent records from the paperless, electronic Virtual VA file (if the examiner does not have access), must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions All appropriate tests and studies should be accomplished (in particular, audiometric and speech discrimination testing) with all results made available to examiner prior to the completion of his or her report) and all clinical findings should be reported in detail. The examiner should clearly indicate, with respect to each ear, whether the Veteran currently has hearing loss to an extent recognized as a disability for VA purposes. For each diagnosed disability, the examiner should offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is the result of injury or disease incurred or aggravated in service, to particularly include in-service noise exposure, as alleged. In rendering the requested opinion, the examiner should consider and discuss the Veterans military and post-service history and assertions, to include what appear to be credible assertions of in-service noise exposure. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 7. If the Veteran fails to report any scheduled examination(s) and/or testing, obtain and associate with the claims file a copy of any notice(s) of the date and time of the appointment(s) sent to him by the pertinent VA medical facility. 8. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 9. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims in light of all pertinent evidence (to include all that associated with the claims file after the last adjudication of the claims) and legal authority. 10. If any benefit sought on appeal is denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).