Citation Nr: 1332756 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 07-03 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from July 1980 to July 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In July 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development of a medical nexus opinion as to whether the diabetes mellitus was either caused or aggravated by the service-connected disabilities, including the heart disability. A VA examination was conducted and the requested opinions were obtained, in substantial compliance with the Board remand. The matter was then returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Also in this regard, in April 2013, the Board requested an opinion from a Veterans Health Administration (VHA) medical expert in internal medicine. In July 2013, the requested VHA opinion was incorporated into the record. That same month, the Veteran was provided with a copy of the VHA opinion. In August 2013, the Veteran submitted additional argument, which is addressed in the Remand below. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim of service connection for diabetes mellitus, to include as secondary to service-connected disabilities. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R.§ 3.159(c), (d) (2013). Pursuant to the July 2013 VHA opinion, in August 2013, the Veteran submitted additional argument and evidence pertaining to the claim for service connection. Specifically, he contended that the diabetes mellitus is not secondary to the service-connected disabilities (as he has asserted since filing the claim in April 2005), but rather that the diabetes is directly related to service. In August 2013, the Veteran also submitted medical treatise articles from the internet, including answers from a yahoo.com inquiry, which identified multiple symptoms that may indicate early diabetes mellitus. The Veteran argued that he had some of these symptoms, particularly headaches and fatigue, during active service and that the diabetes mellitus had onset in service. Indeed, service treatment records indicate complaints of headache and fatigue. The Veteran has not submitted a waiver of the right to initial review of the additional evidence by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304(c) (2013). On this basis alone, the matter must be remanded and referred to the AOJ for initial review. Additionally, in this case, there is no VA or private medical report of record with an etiology opinion specifically addressing the question of the relationship of the current diabetes mellitus to the Veteran's active service. As there is insufficient evidence to determine whether the Veteran's diabetes mellitus is related to service, the Board finds that a medical opinion should be obtained. See 38 C.F.R. § 3.159(c)(4) (2013) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Accordingly, the case is REMANDED for the following action: 1. Request that an appropriate medical professional review the claims file and provide a medical opinion. The relevant documents in the claims file should be made available to, and be reviewed by, the examiner. The examiner should note such review in the examination report (another examination of the Veteran is not required). If the examiner determines that an additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled; however, the Veteran should not be required to report for another examination as a matter of course if it is not found to be necessary. Based upon a review of the record, including the Veteran's medical history, service treatment records, post-service private and VA treatment records, and clinical findings, the VA examiner is requested to offer the following opinion: Is it at least as likely as not (a 50 percent probability or greater) that any current diabetes mellitus is directly related to the complaints noted during service; that is, whether the current diabetes mellitus began/had onset in service. The VA examiner should comment on the significance, if any, of the reported in-service complaints of frequent urination, leg cramps, and, particularly, headaches and fatigue. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A rationale should be given for all opinions and conclusions rendered. The opinion should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. 2. After completion of the above and compliance with the requested actions has been ensured, readjudicate the claim for service connection for diabetes mellitus, to include as secondary to service-connected disabilities, in light of all the evidence of record (to include the argument and evidence submitted in August 2013). If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. The Veteran 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 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). _________________________________________________ J. Parker 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).