Citation Nr: 1333809 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 07-35 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type 2, to include as due to herbicide exposure. 2. Entitlement to service connection for hypertensive vascular disease, to include as due to diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from September 1964 to February 1968. He also served in the Air National Guard of New York between August 1987 and March 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. By that rating action, the RO denied the service connection claims on appeal. The Veteran appealed these determinations to the Board. The Board observes that the Veteran filed a notice of disagreement (NOD) with regard to the issue of whether service connection is warranted for a disability related to in-service asbestos exposure. This issue was included in the August 2007 Statement of the Case (SOC); however, the Veteran expressly eliminated it from his October 2007 substantive appeal. Thus, the asbestos issue is not within the Board's jurisdiction and will not be discussed further. The Veteran requested a hearing by way of his August 2007 VA Form 9. He withdrew that hearing request in September 2009. In September 2011, the Board remanded the Veteran's claims to the RO for additional procedural and substantive development. The development has been accomplished and the appeal has returned to the Board for appellate consideration. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. (CONTINUED NEXT PAGE) REMAND As part of its September 2011 Remand, the Board requested that the RO/AMC contact the National Personnel Records Center (NPRC) and any other appropriate government records depository to obtain the Veteran's military personnel file and service treatment records for his 23-year period of service with the Air National Guard. The Air Force Personnel Reserve Center (ARPC) informed the RO that it was the custodian of the Veteran's records. Thereafter, ARPC sent the RO service personnel records of a different Veteran. Thus, it is unclear to the Board whether the records at the ARPC were searched for records pertaining to the current Veteran. Thus, on remand, the RO should make another request for the correct Veteran's service treatment and personnel records for his period of service in the Air National Guard of New York between August 1987 and March 2001. Further, as it was determined by the AMC that the Veteran was not exposed to herbicide agents, which appears to be supported by the finding that use and storage of tactical herbicides was discontinued 1970, the claims file was forwarded to the VA examiner who conducted the December 2005 VA examinations of the Veteran to determine the etiology of the Veteran's diabetes mellitus and hypertensive vascular disease. In a September 2012 addendum report, the VA examiner opined that that it was less likely than not that the Veteran's diabetes mellitus or hypertensive vascular disease were related to his military service. His reasoning was that he could not find any evidence of treatment for diabetes or hypertensive vascular disease during military service. The Board finds the December 2005 VA examiner's September 2012 addendum opinion to be of minimal probative value for the following reasons. First, it was based on a review of the claims files that did not include the Veterans complete record, but rather those of another Veteran. Second, in addressing the etiology of the Veteran's hypertensive vascular disease, the VA examiner did not comment on the reports related to blood pressure found in service treatment records that were provided by the Veteran and as directed by the Board in its September 2011 remand directives. (See September 2011 remand pages (pgs.) 6, 7-8). Thus, on remand, once the record is complete with all service treatment records pertaining to the correct Veteran, and with the dates of service, to include all periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) the claims files must, once again, be returned to qualified examiners, other than the December 2005 examiner, to address the inadequacies found in the September 2012 addendum opinion and provide opinions that address the etiology of the Veteran's diabetes mellitus and hypertensive vascular disease. Finally, in its September 2012 Supplemental Statement of the Case (SSOC), the RO indicated that it had obtained or reviewed the Veteran's VA treatment records from the Northport VA Medical Center (VAMC) from January 2006 to the present. These reports, while discussed by the RO in it is September 2012 SSOC, are not contained in the Veteran's physical claims files nor have they been uploaded to either his Virtual VA electronic claims file or the Veterans Benefits Management System (VBMS). This must be accomplished on remand. Accordingly, the case is REMANDED for the following action: 1. Contact the ARPC or other agency as appropriate, to obtain any outstanding service personnel and treatment records relating to the Veteran, [redacted], [redacted], for his period of service with the Air National Guard of New York from August 1987 and March 2001. All attempts to obtain the personnel and t treatment records must be documented in the claims files. 2. Associate all treatment records, dated from January 2006 to the present, from the Northport, New York VAMC discussed in a September 2012 SSOC with the Veteran's physical claims files or upload them to his Virtual VA electronic claims file. 3. Once the above development occurs, forward the claims file to a qualified clinician who has not previously reviewed the claims file. The reviewer must provide the following opinions: a. Is it as least as likely as not (i.e., 50 percent probability or greater) that the Veteran's diabetes mellitus had its initial onset during a period of active service or active duty for training or that it manifested to a compensable degree within a year of service discharge from the United States Navy in February 1968? b. Is it as least as likely as not (i.e., 50 percent probability or greater) that the Veteran's hypertension had its initial onset during a period of active service or active duty for training or that it manifested to a compensable degree within a year of service discharge from the United States Navy in February 1968? c. Is it as least likely as not (i.e., 50 percent probability or greater) that the Veteran's diabetes mellitus or hypertension is otherwise etiologically related to his period of active service. The reviewer providing the opinion as to the etiology of the Veteran's hypertensive vascular disease must comment on the reports related to blood pressure during his period of service with the Air National Guard (i.e., June 1986 Periodic examination report for the New York Air National Guard containing a blood pressure reading of 100/60; April 1990 Report of Medical History, wherein the examining clinician noted that the Veteran had a history of low blood pressure; May 1995 Physical Profile Serial Report containing an annotation that the Veteran had "borderline Blood Pressure; and, June 2000 Report of Medical History, wherein the examining clinician noted that the Veteran had hypertensive vascular disease two (2) years previously, but that he was "normal" at that time, respectively.) In providing the requested opinions, reviewer must specifically acknowledge and discuss any competent and credible lay statements made by the Veteran during the course of the appeal regarding any continuity of symptomatology since service discharge. The reviewer providing the opinion as to the etiology of the Veteran's diabetes mellitus is hereby informed that his exposure to Agent Orange during military service has not been presumed. A complete rationale must be provided for all opinions expressed. If a reviewer is unable to offer the requested opinion, it is essential that he or she offer a rationale for his or her conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. The RO must ensure that the reviewers' reports comply with this remand and the questions presented in its request. If any report is found to be insufficient, it should be returned to the reviewer for necessary corrective action, as appropriate. 5. After completing the requested actions, the claims for service connection should be readjudicated in light of all pertinent evidence and legal authority. If any benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response before the claims folders are returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ MICHAEL A. HERMAN 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).