Citation Nr: 1335746 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-17 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II. 2. Entitlement to service connection to a heart disorder, to include arteriosclerotic heart disease, to include as secondary to diabetes mellitus type II. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1979 to June 1979, and had further service as a member of the Army Reserve from approximately July 1979 to June 1999. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In the May 2009 rating decision, the RO denied service connection for diabetes mellitus type II and a heart disorder claimed as secondary to diabetes. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. 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. REMAND The Veteran essentially contends that he has diabetes mellitus type II that initially manifested during active service in the Army Reserve, as well as a heart disorder secondary to diabetes. The Veteran was afforded periodic Reserve examinations. The Veteran filled out reports of medical history as part of his Reserve duties in February 1979, May 1983, July 1984, May 1987, and January 1992, with no indications of diabetes or a heart disorder either by the examiner or self-reported. In his April 1994 examination the Veteran was issued a glucose, cholesterol, and HDL test. He indicated he was in good health and took no medication. In an October 1996 report the Veteran indicated he was taking Glynase because he was over 40, but otherwise in good health. In April 1998, an initial medical review indicated that the Veteran was taking "Gluco" and Glucotrol. He was seen in June 1998 for light headedness, dizziness, nausea, and tiredness. It was noted that he was on Glucophage 500 mg 3 times per day. The examiner noted that the Veteran had been diagnosed as a diabetic for the past 2 and a half to 3 years. He was referred for blood sugar testing. It was not until June 1996 that service treatment records indicated that the Veteran had diabetes. In October 2000, the Veteran underwent a five vessel coronary bypass at the Tallahassee Memorial Regional Medical Center after complaining of chest pain, but he denied having had previous similar symptoms. After his surgery and recovery he was seen regularly at Tallahassee Cardiology Associates. Active military, naval, or air service includes any period of active duty training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (22), (23), (24), 106; 38 C.F.R. § 3.6(a), (c), (d) (2013). In the instant case, there is no VA examination opinion related to this theory of entitlement of record. The competent evidence of record suggests the Veteran has currently diagnosed diabetes and a heart disorder that may have been incurred during a period of ACDUTRA. In light of the foregoing, the Board finds a remand for an appropriate VA examination and opinion addressing whether diabetes mellitus was first manifest in ACDUTRA service and or is otherwise related thereto. is necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Given the legal provisions cited above, effective appellate review requires information as to which periods of the Veteran's service in the Reserve represented INACDUTRA and which periods represented ACDUTRA. There is no evidence that indicates which periods of the Veteran's service represented INACDUTRA or ACDUTRA. When obtaining records in Federal custody, VA must make as many requests as are necessary to obtain relevant records, until VA concludes that further efforts to obtain these records are futile. 38 C.F.R. § 3.159(c)(2) (2013). Given the importance of the information to the Veteran's claims, the Board concludes that the RO must conduct further efforts to verify the Veteran's periods of ACDUTRA or INACDUTRA. If such further efforts to obtain these records prove to be futile, this fact should be documented by the AMC/RO. The record reflects that the Veteran has continued to receive treatment for his diabetes and heart disorder. As this matter is being returned for additional development, ongoing medical records should also be obtained, as well as any relevant private medical records from the period of the Veteran's Reserve duty. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (noting that VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran's former Army Reserve unit, listed as HQS, 160th MP BN. (EPW/C1) at 222 Ausley Road, Tallahassee, Florida 32304-3910, or any other appropriate government repository and request personnel records providing verification of the specific dates and corresponding nature of such service (i.e., ACDUTRA or INACDUTRA). Additionally, ensure that adequate attempts have been made to obtain any outstanding Reserve service treatment records. If such records cannot be obtained, a letter should be sent to the Veteran informing him of the steps taken to obtain the records, listing alternative sources, and requesting him to furnish any such records in his possession or to identify the possible location of such records. 2. Then, set forth in a clear memorandum all periods of the Veteran's ACDUTRA and INACDUTRA service and associate this memorandum with the claims folder. All development efforts and/or any negative response should be in writing, and associated with the claims folder. 3. Contact the Veteran and ascertain all sources of private treatment or evaluation for any diabetes and heart disorders during his period of Reserve service. Undertake appropriate efforts to attempt to obtain any identified records. All development efforts are to be in writing and associated with the claims folder. If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2013). 4. After the development directed in paragraphs 1 through 3 has been completed to the extent possible, schedule the Veteran for a VA examination to determine the presence, and etiology of the Veteran's claimed diabetes. All indicated tests and studies should be conducted. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his lay assertions regarding his diabetes, as well as the pertinent medical evidence. The examiner should note that the claims file has been reviewed. Based on a review of the record and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that the diabetes is attributable to service, including any period of ACDUTRA or INACDUTRA, specifying whether the condition: (A) had its onset during the Veteran's period of active military service, any period of Reserve military service (i.e., periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) or within one-year of separation from active military service; (B) is related to the Veteran's active military service, any period of Reserve military service (i.e., ACDUTRA and INACDUTRA); or (C) was permanently increased beyond its natural progression during any period of Reserve military service (i.e., ACDUTRA and INACDUTRA). 5. The examiner should also provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's heart disorder is attributable to service, including any period of ACDUTRA or INACDUTRA, specifying whether the condition: (A) had its onset during the Veteran's period of active military service, any period of Reserve military service (i.e., periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) or within one-year of separation from active military service; (B) is related to the Veteran's active military service, any period of Reserve military service (i.e., ACDUTRA and INACDUTRA); or (C) was permanently increased beyond its natural progression during any period of Reserve military service (i.e., ACDUTRA and INACDUTRA). The exam should also address both whether it is at least as likely as not (a 50 percent or better probability) that the Veterans heart disorder: (D) was caused by diabetes; or (E) was aggravated by diabetes. If the examiner determines that heart disorder is aggravated by the diabetes, the examiner should report the baseline level of severity prior to the onset of aggravation. If some of the increase in severity of the heart disorder is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond give medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, of the examiner does not have the needed knowledge and training). The examiner is informed that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Aggravation is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. 6. After the development directed above has been completed to the extent possible, readjudicate the issues on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. 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). 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). (CONTINUED ON NEXT PAGE) _________________________________________________ MICHAEL A. PAPPAS 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).