Citation Nr: 1340760 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 11-14 943A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide (Agent Orange) exposure. 2. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide (Agent Orange) exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to September 1969, to include service in Vietnam from April 1967 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in November 2012. As a preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. This Virtual VA claims file has been reviewed. FINDINGS OF FACT 1. In an August 2006 rating decision, the RO denied entitlement to service connection for diabetes mellitus. An appeal of that decision was not initiated, and the decision became final. 2. Evidence received since the August 2006 rating decision, by itself or when considered with evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of service connection for diabetes mellitus. 3. The Veteran served in Vietnam during the Vietnam era and is presumed to have been exposed to herbicides, to include Agent Orange. 4. The Veteran has been diagnosed as having diabetes mellitus, type II, which is a disease recognized by the VA Secretary as etiologically related to herbicide exposure. 5. The medical evidence presented to rebut the grant of presumptive service connection for diabetes mellitus did not present sound medical reasoning in consideration of all the evidence of record and does not arise to the level of affirmative evidence contemplated by the regulation. CONCLUSIONS OF LAW 1. The August 2006 rating decision that denied the Veteran's claim of entitlement to service connection for diabetes mellitus is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. Evidence received since the August 2006 rating decision is new and material, and the claim of service connection for diabetes mellitus is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. The criteria for entitlement to service connection for diabetes mellitus have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(e) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. After reviewing all of the evidence of record available at the time of an August 2006 rating decision in light of the evidence submitted since that decision, to include University Hospital records showing low blood sugar in 1994, November 2012 hearing testimony, and an opinion from Christopher V. Poole, M.D., the Board finds that the new evidence raises a reasonable possibility of substantiating the appellant's claim of entitlement to service connection for diabetes mellitus, type II. Accordingly, the claim is reopened. The medical records show that the Veteran has a current diagnosis of diabetes mellitus type II, which is a disease presumed to be related to herbicide exposure. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2013); 38 C.F.R. § 3.307(a)(6)(iii) (2013). The Personnel Information Exchange System request response indicates that the Veteran served in the Republic of Vietnam from April 6, 1967 to April 4, 1968. Accordingly, the Veteran served in Vietnam during the Vietnam era, such that he is presumed to have been exposed to herbicides. February 1994 laboratory reports show that the Veteran experienced high blood glucose levels, but did not then have diabetes. He underwent kidney transplants in 1994, 2000, and 2007. The Veteran reported that he was first diagnosed as having diabetes mellitus in March 2001, and a treatment note as early as 2003 notes a diagnosis of diabetes mellitus. In a December 2007 VA examination, the examiner opined that the Veteran's diabetes mellitus, type II was caused by or a result of prolonged use of antirejection medication for renal transplant, and as such not due to Agent Orange exposure. The examiner referenced the article associating prolonged steroid use and metabolic toxicities, such as diabetes, and reviewed Dr. Jackson Yium's progress notes adjusting medication to improve the Veteran's blood glucose levels. The examiner did not, however, discuss private records referencing the Veteran's elevated blood sugar levels. A September 2008 letter from Dr. Poole indicated that the Veteran had developed diabetes mellitus after a second kidney transplant. Dr. Poole noted, however, that the Veteran tolerated the first transplant without any development of diabetes mellitus. He concluded that it was impossible to definitively discern the etiology of the Veteran's diabetes or to state with a hundred percent certainty that it was due to the most recent transplant. Dr. Poole noted that this was particularly true considering the Veteran's tolerance of medications with his first transplant. In a December 2009 letter from Dr. Yium indicated that development of diabetes mellitus was often multi-factorial, and that exposure to Agent Orange caused the Veteran to be predisposed to developing diabetes mellitus. The Veteran served in Vietnam during the Vietnam era, and has been diagnosed as having diabetes mellitus, type II. Thus, the Veteran's diabetes mellitus, type II is legally presumed to be due to exposure to an herbicide agent in Vietnam. 38 C.F.R. §§ 3.307(d), 3.309(e). The Board finds the affirmative medical evidence of an intervening cause for diabetes, namely antirejection medications following the Veteran's kidney transplant, was made without consideration of the entire record, and therefore does not arise to the level of affirmative evidence contemplated by the regulation. The presumptive entitlement to service connection for diabetes mellitus as a result of herbicide exposure has, therefore, not been rebutted. As such, the Veteran is entitled to service connection for diabetes mellitus. ORDER The claim of entitlement to service connection for diabetes mellitus is reopened. Service connection for diabetes mellitus is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs