Citation Nr: 1337803 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 13-18 338 ) 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, to include as due to herbicide exposure. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to herbicide exposure and as secondary to diabetes mellitus, type II. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from August 1954 to August 1974. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). The RO issued a statement of the case in June 2013, on four issues including the ones listed on the title page of this decision. In his June 2013 substantive appeal, the Veteran indicated that he was only appealing the issue of service connection for peripheral neuropathy on a direct basis. However, in an August 2013 statement, his representative also listed the issue of service connection for diabetes mellitus, type II. Subsequently, in a September 2013 informal hearing presentation, the Veteran's representative clarified that it would be in the best interest of the Veteran to pursue the issue of type II diabetes in addition to the issue of peripheral neuropathy because these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue). Therefore, resolving any doubt in the Veteran's favor, the Board will proceed with the appeal with the issues as listed on the title page of this decision. The issue was entitlement to service connection for hearing loss has not been appealed to the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran was exposed to herbicides while serving in Vietnam. 2. The Veteran currently has diabetes mellitus, type II. 3. The Veteran currently has peripheral neuropathy of the bilateral lower extremities. 4. Peripheral neuropathy of the bilateral lower extremities is proximately due to diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus, type II have been met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The criteria for entitlement to service connection for peripheral neuropathy of the bilateral lower extremities have been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307. The following diseases are deemed associated with herbicide agent exposure, under VA law: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, diabetes mellitus (Type II), Hodgkin's disease, ischemic heart disease, hairy cell leukemia and other chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson' disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309. Recently, VA has amended §§ 3.307(a)(6)(ii) and 3.309(e) by replacing the term "acute and subacute peripheral neuropathy" with the term "early-onset peripheral neuropathy." VA also removed Note 2 to § 3.309(e), which had required, in order for the presumption to apply, that the neuropathy be transient and appear within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset. However, under the amendments, peripheral neuropathy will still need to become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it no longer needs to be transient. See Final Rule, 78 Fed. Reg. 54,763-65 (September 6, 2013). In this case, the Veteran claims that he has diabetes mellitus, type II, and peripheral neuropathy of both lower extremities, as a result of exposure to Agent Orange during his military service. Alternatively, he contends that his peripheral neuropathy of the lower extremities is secondary to his type II diabetes. The Veteran has reported that while serving as a Navigator at the Dover Air Force Base (AFB), Delaware, from 1960 to 1965, he flew numerous flight missions from Dover to the Far East, on several occasions, making a stop at Danang AFB for 3 to 6 hours. Service personnel records reflect that the Veteran was assigned to the 15th Air Transport Squadron at Dover AFB, Delaware, from September 1960 to August 1965, and his Form DD-214 demonstrates that his military occupational specialty was Air Operations Officer and Navigator, and that he served in Vietnam. The Veteran is therefore presumed to have been exposed to herbicide agents, to include Agent Orange. 38 U.S.C.A. § 1116(f). In a November 2003 letter, a private physician stated that the Veteran had a peripheral neuropathy of unknown etiology. It was noted that it could be possibly autoimmune in nature because of the way it came on so suddenly. In December 2003, nerve conduction study confirmed the diagnosis of neuropathy. Private treatment records concerning the Veteran's heart surgery in April 2010 reflect a diagnosis of diabetes mellitus. In September 2011, a VA examiner opined that the Veteran currently did not have established diagnosis of diabetes mellitus. The examiner stated that it is possible that the Veteran may have had elevated blood sugars in the past which resolved after the stress of the surgery and as a result of weight loss. The examiner further stated that the issue of peripheral neuropathy as secondary to diabetes will not be discussed because the Veteran does not have established diagnoses of diabetes mellitus, type II. In a November 2011 letter, Dr. Zenobio Aguila indicated that the Veteran had been his patient since March 2009 and that he had been diagnosed with diabetes mellitus (DM), type II, and peripheral neuropathy on the bilateral lower extremities secondary to the DM. Dr. Aguila stated that "[the Veteran] has undergone a stringent diet and exercise program subsequent to his open heart surgery in 2010, resulting in a significant weight loss of 40 lbs and the return to normal blood sugar values. This does not eliminate the diagnosis, it controls the effects of the condition, and [the Veteran] is still diabetic." Upon review, the Board finds the evidence supports the presumption of exposure to herbicides for the purpose of establishing entitlement to service connection for diabetes mellitus, type II. In this regard, the evidence of record includes a current diagnosis of diabetes mellitus, type II, from Dr. Aguila The Board notes that the September 2011 VA examiner gave a contrasting opinion that the Veteran did not have established diagnoses of diabetes mellitus, type II, because his elevated blood sugars resolved after the 2010 heart surgery and weight loss. However, Dr. Aguila specifically noted in the November 2011 letter that although the Veteran's blood sugar values returned to normal following a stringent diet and exercise program subsequent to his heart surgery in 2010, this does not eliminate the diagnosis and that the Veteran is still diabetic. The Board attaches greater probative value to Dr. Aguila's conclusion in this matter. To that effect, Dr. Aguila provided a better explanation for the basis of his opinion and his opinion is based on his ongoing treatment of the Veteran for the diabetic condition since 2009, whereas the September 2011 VA examiner appears to have based his conclusion on a single clinical examination and limited review of the Veteran's medical history. As the most probative medical opinion establishes a current diagnosis of diabetes mellitus, type II, it is presumed to have been incurred in service as a result of exposure to herbicides. Accordingly, service connection for diabetes mellitus, type II, is warranted. 38 U.S.C.A. § 1116(f); 38 C.F.R. §§ 3.307, 3.309(e). Peripheral Neuropathy of the Lower Extremities Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a Veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Significantly, Dr. Aguila indicated in November 2011 that "[the Veteran] had been diagnosed with diabetes mellitus (DM), type II, and peripheral neuropathy on the bilateral lower extremities secondary to the DM." (Emphasis added in italics). Therefore, resolving the benefit of the doubt in favor of the Veteran, as service connection for diabetes mellitus, type II, has been established herein, service connection is also warranted for peripheral neuropathy of the bilateral lower extremities as proximately due to service-connected diabetes mellitus type II. 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 439; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for diabetes mellitus, type II, is granted. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs