Citation Nr: 1333320 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-34 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus, claimed as due to herbicide exposure. 2. Entitlement to a compensable initial rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran served on active duty from February 1964 to November 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of February 2011 and December 2012 of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO). The February 2011 decision reopened and denied the Veteran's claim for service connection for diabetes, and the December 2012 decision effectuated the Board decision granting the Veteran's claim for service connection for bilateral hearing loss, assigning a noncompensable rating. In December 2012, the Board issued a decision granting the Veteran's claim for service connection for bilateral hearing loss. In that same decision, the Board reopened the Veteran's previously denied claim for service connection for diabetes and remanded it for further development. The ordered development has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of entitlement to service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to an increased initial rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during his active service. 2. During the course of his appeal, the Veteran has been diagnosed as suffering from diabetes. CONCLUSION OF LAW The criteria for service connection for diabetes have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. II. Entitlement to Service Connection for Diabetes Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) ; see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The requirement of a current disability may be met by evidence of the disability at the time of filing or at any point during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). Service connection may be established on a presumptive basis for a disability resulting from exposure to an herbicide agent such as Agent Orange. 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. See 38 C.F.R. §§ 3.307(a)(6)(iii). If a Veteran is presumably exposed to Agent Orange, there is a presumption of service connection for certain diseases, including diabetes. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a) and 3.309(e). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d at 1377. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. There is no evidence, and the Veteran does not contend, that he suffered from diabetes during his active service. Instead, the Veteran contends that his claimed diabetes is related to his in-service herbicide exposure. The Veteran's service personnel records reveal that he did serve in the Republic of Vietnam during the required time period. For his service in Vietnam, the Veteran was awarded (among numerous other decorations) the Purple Heart, the Bronze Star Medal with 2 Oak Leaf Clusters, the Combat Infantryman Badge, and the Army Commendation Medal with "V" device and 5 Oak Leaf Clusters. Given this service, the Veteran qualifies for the presumption. To this point, the Veteran's claim has been denied because the evidence has not shown that he suffers from diabetes. A January 2009 VA treatment record reflects that the Veteran had been diagnosed as suffering from "prediabetes." A November 2010 VA examination concluded that the Veteran was not then suffering from diabetes. A February 2013 VA examination concluded that the Veteran suffers from impaired fasting glucose, but not from diabetes. However, service connection may be granted if it is shown that the Veteran suffered from his claimed condition at any time during the pendency of the appeal. In the February 2013 VA examination, the examiner noted that a diabetes diagnosis is warranted for a fasting glucose reading of greater than 126. On April 9, 2012, the Veteran had a fasting glucose level of 129, above the threshold required for a diabetes diagnosis. The Veteran's VA treatment records also reflect that the Veteran has met the criteria for a diagnosis of diabetes since 2010, the same year that the Veteran filed his claim. Whether the Veteran currently suffers from type II diabetes is ultimately irrelevant, as the probative evidence shows that the Veteran either was diagnosed as suffering from this condition during his appeal period, or he met the criteria for such a diagnosis at some point during the appeal period. Service connection for diabetes is thus warranted. ORDER Entitlement to service connection for type II diabetes mellitus is granted. REMAND In its December 2012 decision, the Board granted the Veteran's claim for service connection for bilateral hearing loss. In a December 2012 rating decision effectuating the Board's grant, the Appeals Management Center assigned a noncompensable disability rating. In January 2013, the Veteran filed a Notice of Disagreement with the disability rating assigned. When there has been an adjudication by the RO and a timely notice of disagreement has been filed, a statement of the case addressing the issue must be furnished to the Veteran. Manlincon v. West, 12 Vet. App. 238 (1999). As no statement of the case has been issued, the claim must be remanded before the Board can take further action. Accordingly, the case is REMANDED for the following action: Provide a Statement of the Case to the Veteran regarding the issue of entitlement to an increased initial rating for bilateral hearing loss. 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 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). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs