Citation Nr: 1332461 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 07-08 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from October 1964 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied service connection for diabetes mellitus. The Veteran appealed the denial of service connection in this decision, and the matter is now before the Board. In May 2013, the Board remanded this claim back to the RO for additional development to include acquiring treatment records from 1995 to 2000, affording the Veteran a VA examination, and readjudication of the claim with the issuance of a supplemental statement of the case. The Board's review of the claims file reveals that the ordered actions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). The Veteran testified via video conference from the RO in Milwaukee, Wisconsin before the undersigned Acting Veterans Law Judge at a hearing held on March 19, 2013. This appeal was processed using the Veterans Benefits Management System electronic claims processing system. Additionally, consideration of the Veteran's appeal has included review of all documents within the Virtual VA paperless claims processing system which includes, in pertinent part, a transcript of the Veteran's hearing before the undersigned. FINDINGS OF FACT 1. The Veteran was not exposed to herbicides during service. 2. Symptoms of diabetes mellitus, type II began in service and have been continuous since separation from service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.313 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The Board is granting, in full, the benefit sought on appeal and VA has no further duty to notify or assist. Service Connection for Diabetes Mellitus, Type II Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). For certain chronic diseases, including diabetes mellitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disease in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 C.F.R. § 3.307(a) (2013). The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) (2013) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (2013) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus, diabetes mellitus Type 2, or adult-onset diabetes); Hodgkin's disease; hairy cell leukemia and other chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); Parkinson's disease; and ischemic heart disease. 38 C.F.R. § 3.309(e) (2013). Note 3 at the end of § 3.309 defines ischemic heart disease as not including hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (2013). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that he was exposed to Agent Orange during service and that diabetes mellitus onset during service or within one year of separation. At his March 2013 hearing heindicated that he served aboard the Navy aircraft carrier, USS Enterprise off the coast of Vietnam in the Tonkin Gulf. The Veteran stated that he was a "flight deck troubleshooter" which necessitated physical contact with aircraft which had returned from flying sorties over Vietnam. The Veteran contended that at his service-separation examination he was told that he was "borderline diabetic," and within one year of separation he was diagnosed with diabetes mellitus. Information requests sent to the Department of Defense by VA were unable to confirm that the Veteran's service aboard the USS Enterprise included any time near the coast of Vietnam, or that the Veteran was ever physically in Vietnam. As a result, exposure to Agent Orange is not presumed or otherwise shown to have occurred and thus the presumptive provisions of 38 C.F.R. § 3.307(a) are not for application. The Veteran's terminal DD Form-214 confirms one year and five months of foreign or sea service and that his primary military occupational specialty was maintenance technician. Personnel records also confirm service aboard the USS Enterprise in 1978. A review of the Veteran's service treatment records laboratory findings of fasting blood glucose level at 103 mg/dl in an undated report and in a separate May 1980 report. On retirement examination in June 1984, the Veteran's urine was negative for sugar or albumin and on medical history questioner in September 1984 the Veteran denied sugar or albumin in his urine, but endorsed recurrent weight gain. Following separation, a September 1985 VA nutritional clinic record indicates that the Veteran inquired regarding a sugar-free cookbook, and he had lost ten pounds in the preceding month. The Veteran underwent a VA examination in October 1984 during which he reported degenerative joint disease of the ankles, hypertension, hemorrhoids, foot fungus and umbilical hernia. In December 1985, the Veteran's blood glucose was 101. On treatment at a private facility in June 1999, the Veteran endorsed a 14 year history of diabetes mellitus, and had not checked his blood sugar in one month. Private treatment records from August 1999, show that the Veteran endorsed a long-term history of diabetes mellitus which had been "discovered in 1985." The Veteran's diabetes mellitus was not well-controlled and the primary problem was the Veteran's lack of willingness to follow a diet or exercise routine. In a November 2003 letter of medical necessity regarding the Veteran's need for an insulin pump, the Veteran was described as having had diabetes for at least nine years as well as widely fluctuating blood glucose levels before meals. VA treatment in March 2004 shows blood glucose was 278. A VA treatment note from August 2004 indicates that the Veteran was first diagnosed with diabetes mellitus "in 1994 when he was leaving the Navy." Given that the Veteran separated from service in 1984, however, the Board finds this is likely a typographical or recording error. Private treatment records from November 2002 indicate that the Veteran gave a history of having been diagnosed with diabetes mellitus in 1984, and that he had been receiving related care from VA facilities. At the time, his blood glucose was 294 and the assessments included uncontrolled type 2 diabetes. Private treatment records from November 2002 show blood glucose was 281. A January 2009 VA treatment record indicates that the Veteran endorsed a 22 year history of diabetes mellitus. The Veteran's diabetes mellitus was described as poorly controlled. The Veteran also had hypertension and hyperlipidemia. On VA examination in July 2013, the Veteran's claims file was reviewed and the physician concluded that findings of elevated glucose during service were of "utmost important significance" as they represented impaired fasting glucose. The Veteran's level of impairment pointed to what the examiner described as "a fore-runner to full-blown diabetes mellitus." The examiner went on to confirm that the in-service findings constituted early symptoms or manifestations of diabetes mellitus, which the examiner noted was diagnosed within one to two years of separation. While the examiner noted that the exact date of the Veteran's diabetes mellitus diagnosis was not known, she also stated that because the Veteran had begun using oral medications to treat his diabetes, the disability had manifest to a degree of 10 percent disabling or more during the first year following service discharge. The Board notes that a review of the claims file does not reveal evidence of the Veteran's use of oral medication for diabetes mellitus within one year of service. Nonetheless, because symptoms of diabetes mellitus manifest during service, the fact that symptoms did not manifest to a degree of 10 percent disabling within one year of separation is immaterial. Finally, when asked whether diabetes mellitus was etiologically related to the Veteran's active military service, the VA examiner sated that it was unlikely because of the Navy's finding that the Veteran was not exposed to Agent Orange. In an August 2013 addendum opinion, the VA examiner clarified that she intended to give "a negative opinion in regards to the matter of service connection" for diabetes mellitus. The Board has considered the VA examiner's addendum opinion, however in light of the facts discussed below, the issue of whether diabetes mellitus was etiologically related to service is not dispositive as service connection may be established where a disease or injury is incurred in service regardless of the causal relationship to service. Furthermore, medical nexus evidence demonstrating an etiological link is not necessary to prove service connection when evidence, regardless of its date, shows that a Veteran had a chronic disease in service, or during an applicable presumptive period, and that he still has the same chronic disease. Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008). See also 38 C.F.R. § 3.303(b). In his March 2006 notice of disagreement, the Veteran stated that he was treated for diabetes mellitus at Air Force bases in 1984 or 1985. In a September 2006 statement, the Veteran indicated that he was told he was "border-line diabetic" on discharge in July 1984, following which he began receiving treatment in Tennessee. Attempts to locate the Veteran's records from the identified treatment facilities have been unsuccessful. In a March 2009 statement the Veteran again endorsed a 1985 diabetes mellitus diagnosis following discharge from the Navy. He also recalled that at retirement his weight had been increasing, he had hypertension, and he was informed of being "borderline diabetic." SSA records show that on filing for SSA benefits the Veteran endorsed onset of diabetes mellitus in 1984. The Veteran is not competent to diagnose diabetes mellitus, however he is competent to report what he was told by medical professionals, see Davidson, 581 F.3d 1313, and to the extent that the Veteran has been highly consistent in reporting having been diagnosed with diabetes mellitus shortly after separation (in 1984 or 1985), the Board finds such reports to be highly credible and probative of a diagnosis soon after service. Furthermore, while the Board may take in to account how a claimant's financial interests may affect the credibility of his or her testimony, Cartwright v. Derwinski, 2 Vet. App. 24 (1991), here the record reflects the Veteran's endorsement of a 1984/1985 diabetes mellitus diagnosis as early as 1999 -five years prior to filing the immediate claim for benefits with the VA - and when making filings with SSA completely unrelated to his VA claim. Thus, in total the record reflects that the Veteran had impaired fasting glucose levels (a fore-runner to full-blown diabetes mellitus according to the July 2013 VA examiner) at separation from service - and the VA examiner opined that this was an early symptom or manifestation of diabetes mellitus. The Board finds that the Veteran was diagnosed with diabetes mellitus in 1984 or 1985 based on the Veteran's credible testimony, and that he has had diabetes mellitus since that time. Based on the foregoing, and resolving doubt in the Veteran's favor, service connection for diabetes mellitus, type II is established, wthout regard to the Veteran's lack of exposure to Agent Orange. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for diabetes mellitus, type II is granted. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs