Citation Nr: 1333246 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 11-20 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure of herbicides. 2. Entitlement to service connection for Graves' disease, to include as due to exposure of herbicides. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Jacob Dworkin, Associate Counsel INTRODUCTION The Veteran served in active service from October 1966 to August 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The issue of entitlement to service connection Graves' disease is addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C FINDINGS OF FACT 1. The Veteran has a current diagnosis of diabetes mellitus, type II. 2. The Veteran served in the Republic of Vietnam in the Vietnam era. CONCLUSION OF LAW Diabetes mellitus is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In this case, the Board makes no determination unfavorable to the Veteran. Rather, the Board grants the Veteran's claim of entitlement to service connection for diabetes mellitus. Accordingly, assuming without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, any error was harmless. Service Connection The Veteran asserts that his current diagnosed diabetes mellitus is due to his service in the Republic of Vietnam due to exposure to herbicides. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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 that service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any herbicide agent during that service. 38 C.F.R. § 3.307(a)(6(iii) (2013). If a Veteran was exposed to an herbicide agent during active service, certain diseases, including diabetes mellitus type II, shall be considered service connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of that disease during service. 38 C.F.R. § 3.309(e) (2013). In this case, the evidence shows that the Veteran was stationed in the Republic of Vietnam during the applicable period. The Veteran received various medical and dental procedures all of which stated that treatment took place in the Republic of Vietnam in 1968. Therefore, exposure to herbicide agents during service is conceded. The Veteran's private medical records indicate that his blood sugar level was 126 in July 2011, which, according to his private physician Dr. A, confirms that the Veteran has adult onset diabetes mellitus. Also mentioned in the Veteran's VA treatment records are treatments for diabetes and comments reporting that the Veteran's diabetes is being controlled through medication. Therefore, the Board finds that the Veteran has demonstrated by competent and credible evidence that he has a current disability of type II diabetes mellitus which is one of the diseases listed in 38 C.F.R. § 3.309(e) that affords the Veteran a presumption of service connection due to his exposure to herbicides during his service in the Republic of Vietnam. The evidence thus shows that the criteria for service connection for diabetes mellitus have been met. Therefore, entitlement to service connection for diabetes mellitus is granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for diabetes mellitus is granted. REMAND A remand is necessary so that VA can fulfill its duty to assist the Veteran in obtaining evidence to substantiate his claim of entitlement to service connection for Graves' disease. That duty includes assisting the Veteran in obtaining relevant evidence identified by the Veteran and providing the Veteran with an examination. 38 U.S.C.A. 5103A (West 2002 & Supp. 2013); 38 C.F.R. 3.159(c) (2013). The Veteran is currently diagnosed with Grave's disease, which the Veteran has claimed was also caused by herbicide exposure during his active service in the Republic of Vietnam. The Veteran has stated and it is also mentioned in his VA treatment records that he underwent a partial thyroidectomy sometime in the 1970s. There are no medical records that establish the exact time frame of that procedure and the Veteran is unable to recall the specific date of the procedure. A June 2010 request for medical records concerning the Veteran's thyroidectomy from the hospital the Veteran identified as where the procedure was made. On remand, VA must make another attempt to procure a record of the Veteran thyroidectomy in order to adjudicate whether or not the Veteran's current diagnosed Graves' disease; as those records appear to be relevant to his claim. The Veteran has also submitted various medical articles to support his claim that his in-service exposure to herbicides in Vietnam caused his Graves' disease. While Graves' disease is not one of the diseases for which service connection may be presumed based on exposure to herbicides, that does not preclude entitlement to service connection based on sufficient proof of all three elements required for a service connection claim. A VA examination and opinion will still be required concerning the Veteran's contention as to the etiology and manifestation of his diagnosed condition. The examiner will also be asked to provide information as to whether the service-connected diabetes caused or aggravates the Graves' disease. Accordingly, the case is REMANDED for the following action: 1. Request all relevant medical records from Geneva General Hospital, Geneva, New York, pertaining to the Veteran from 1968 to 1975. If the records are not obtained, and it is clear that further efforts to obtain the records would be futile, document of all efforts to obtain the records and negative responses and inform the Veteran. 2. Schedule the Veteran for a VA examination with an endocrinologist regarding his claim of entitlement to service connection for Graves' disease. The examiner must review the claims file and should note that review in the report. The examiner is asked to address the following: (a) Provide an opinion whether it is at least as likely as not (50 percent probability or greater) that the Veteran's Graves' disease had its onset during his active service or was caused by his active service. (b) Provide an opinion whether it is at least as likely as not (50 percent probability or greater) that the Veteran's Graves' disease was caused by his exposure to herbicides during active service in Vietnam. The examiner should explain the significance of the medical literature the Veteran submitted and whether it is or is not significant in making a determination whether or not exposure to herbicide agents caused the Veteran's Graves' disease. (c) Provide an opinion whether it is at least as likely as not (50 percent probability or greater) that the Veteran's Graves' disease was caused by his service-connected diabetes mellitus. (d) Provide an opinion whether it is at least as likely as not (50 percent probability or greater) that the Veteran's Graves' disease was worsened beyond its natural progression by his service-connected diabetes mellitus. 3. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The appellant 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs