Citation Nr: 1422344 Decision Date: 05/16/14 Archive Date: 05/29/14 DOCKET NO. 07-40 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, including as secondary to diabetes mellitus, type II. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1969. He served in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied service connection for right peripheral neuropathy and left peripheral neuropathy, and a July 2008 rating decision of the VARO in White River Junction, Vermont, which denied service connection for diabetes mellitus, type II. His case is currently under the jurisdiction of the VA RO in Detroit, Michigan. The Veteran testified at a hearing before a Decision Review Officer (DRO) at the VA RO in Detroit in February 2010. The Veteran was scheduled for a video conference hearing before the Board in May 2011. However, he failed to report for this hearing and provided no explanation for his failure to report. Therefore, his hearing request is deemed withdrawn. 38 C F R § 20 704(d) (2013). The Veteran's claims were remanded for additional development in September 2011 and in November 2013. On his December 2007 VA Form 9, the Veteran indicated that he also experiences tinnitus that he attributes to his active duty service. Thus, 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. FINDINGS OF FACT 1. The Veteran has diabetes mellitus, type II, attributable to his period of active service. 2. The Veteran has peripheral neuropathy of the bilateral lower extremities that was caused by diabetes mellitus, type II. CONCLUSIONS OF LAW 1. Diabetes mellitus, type II, is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(6), 3.309(e) (2013). 2. Peripheral neuropathy of the bilateral lower extremities is caused by diabetes mellitus, type II. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran claims that he has diabetes mellitus as a result of exposure to herbicides during service in the Republic of Vietnam. He contends that his peripheral neuropathy of the bilateral lower extremities is either due to his service in the Republic of Vietnam or secondary to his diabetes mellitus. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Certain chronic diseases, including diabetes mellitus, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The chronicity provisions are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has that disability. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2013). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection is warranted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2013). That includes any increase in disability that is proximately due to or the result of a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995). Although the Veteran served during a period of war, he does not allege that any of the current disabilities at issue began in combat, and therefore the provisions pertaining to proof of service incurrence or aggravation of a disease or injury in the case of a veteran who engaged in combat with the enemy are not applicable. 38 U.S.C.A. § 1154(b) (West 2002). If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2013). 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 that 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. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2013). The diseases for presumptive service connection based on herbicide exposure include chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. 38 C.F.R. § 3.309(e) (2013). Even where the criteria for service connection under the provisions of 38 C.F.R. § 3.309(e) are not met, a veteran is not precluded from establishing entitlement to service connection by proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A review of the Veteran's service personnel records reveals that he served in the Republic of Vietnam during the period in which exposure to herbicides is presumed. Consequently, the Veteran is presumed to have been exposed to herbicides during active service. The Veteran's claims were remanded for additional development on two occasions in order to determine whether a diagnosis of diabetes mellitus, type II, was appropriate. Associated with the claims file are laboratory reports from Quest Laboratories ordered by D. Hanson, M.D., dated in May 2005 which reflect hemoglobin A1C of 5.8 percent; and fasting glucose results of 116 mg/dl in February 2006; 87 mg/dl in March 2006; and 93 mg/dl in April 2006. Private treatment records from Dr. Hanson indicate that the Veteran was seen for reports of burning and aching feet which Dr. Hanson indicated was peripheral neuropathy in May 2005. A December 2006 neurodiagnostic report performed at Covenant Healthcare revealed bilateral S1 radiculopathy, mild, no denervation; bilateral tarsal tunnel syndrome mild on both sides, no denervation; and superimposing peripheral polyneuropathy. At a December 2006 VA examination, the Veteran reported that he developed sensory loss in 2000. The Veteran indicated that he was initially treated by a podiatrist for high arches but at the time of the examination he indicated that he was prescribed Amitriptyline with some relief. The examiner performed a physical examination including sensory and reflex testing and reviewed the results of an electromyography (EMG) and X-rays of the feet. Laboratory testing revealed hemoglobin A1C of 6.1 percent. The examiner diagnosed the Veteran with bilateral S1 radiculopathy, bilateral tarsal tunnel syndrome, and superimposed peripheral neuropathy. Associated with the claims file is a statement from Dr. Hanson dated in July 2007 which indicates that the Veteran has a diagnosis of diabetes mellitus, type II requiring the use of insulin and a restricted diet or oral hypoglycemic agent and restricted diet. Dr. Hanson noted that the Veteran also had peripheral neuropathy of the feet and he noted that the Veteran had a hemoglobin A1C of 6.7 percent in March 2007. Dr. Hanson indicated that the Veteran's diabetes was the only source of his peripheral neuropathy. A review of private treatment reports from Dr. Hanson reflects that the Veteran was diagnosed with mild diabetes in March 2007. Laboratory test results from Quest associated with the treatment reports reflect that the Veteran had a hemoglobin A1C of 6.4 percent in March 2007 and 5.8 percent in June 2007. The Veteran's fasting glucose was noted to be 96 mg/dl in June 2007. In March 2009, Dr. Hanson noted in the private medical records that the Veteran has had hyperglycemia since 2002 and was diagnosed with the first stages of diabetes with hemoglobin AlC of 6.4 associated with peripheral neuropathy that he felt was diabetic related in 2007. Dr. Hanson reported that since 2007, the Veteran had been on Metformin and his diabetic neuropathy markedly improved, as well as improved glycemic control by blood testing. At a June 2008 VA examination, the examiner reviewed the results of the Veteran's laboratory testing and indicated that none of the laboratory levels (reported above) supported a diagnosis of diabetes mellitus based on the American Diabetic Association (ADA) criteria. The Veteran's fasting glucose was 107 mg/dl at the time of the examination and hemoglobin A1C was 6.5 percent. Following a physical examination including sensory and reflex examination, the examiner indicated that the Veteran's peripheral neuropathy was due to a nonservice-connected lumbar spine condition and she concluded that the Veteran did not meet the ADA criteria for a diagnosis of DM. The examiner failed to address the elevated hemoglobin A1C noted in the laboratory report performed in conjunction with the examination. Associated with the claims file is a September 2009 nerve conduction study and EMG performed by B. Jong, M.D., which revealed findings indicative of early axonal sensory motor polyneuropathy. At a September 2009 VA examination, laboratory testing revealed a hemoglobin A1C of 6.2 percent and fasting blood glucose level of 96 mg/dl. The Veteran was noted to be on Metformin at the time of the examination. Following a physical examination including sensory and reflex examination, the examiner diagnosed early sensory motor neuropathy and indicated that there was no clinical or laboratory evidence of diabetes associated. Again, there is no reference to the elevated hemoglobin A1C noted in June 2008. In an October 2009 addendum opinion, the September 2009 VA examiner indicated that the ADA criteria for a diagnosis of diabetes mellitus require (1) two fasting glucose levels higher than 126 on two separate occasions, (2) two hour glucose tolerance test with a two hour glucose greater than 200, or (3) a random glucose level greater than 200 with symptoms of diabetes that cannot be explained by other conditions. The examiner concluded that the Veteran does not meet the diagnostic criteria for diabetes mellitus, type II. She also indicated that the Veteran had symptoms of decreased sensation and numbness in his lower extremities dating to 2000, prior to when the Veteran was diabetic. The examiner noted that peripheral neuropathy is multifactorial and not just due to elevated glucose levels. She noted that the Veteran does not meet the criteria for diabetes and even assuming he did have diabetes, his symptoms started before the onset of the diagnosis of diabetes and the Veteran has a significant history for a back injury which is known to result in alteration of sensation in the lower extremities. In December 2009, Dr. Hanson submitted a statement indicating that while he had not reviewed the September 2009 EMG, he noted that if the findings quoted were related to the Veteran's lumbar spine disability, the findings quoted would have read as a specific level lumbosacral radiculopathy if it was related to the Veteran's back injury or previous back surgery. Dr. Hanson indicated that the reference to a previous back injury is totally irrelevant to an EMG finding of bilateral sensory motor axonal neuropathy especially with the stocking distribution of the physical examination findings of peripheral neuropathy on the Veteran. He noted that there were no radicular localizing features by EMG testing, by physical complaints, or findings. He also noted that the causes of peripheral neuropathy are variable. Moreover, the Veteran has no evidence of the congenital variety or the ones caused by metabolic deficiency except that his sugar metabolism is altered. Dr. Hanson reported that there is evidence of altered fasting sugars from his previous primary doctor dating back as far as 2002. Additionally, Dr. Hanson noted that the typical type 2 diabetic is fat and sedentary or has a strong family history of diabetes or some combination of the two. In the Veteran's case, he has had high fasting sugars despite being thin and physically active. The physician from the VA quoted that no fasting sugar has been greater than 125 but glucose tolerance test performed on the Veteran showed abnormal fasting blood sugar even by the VA generous standard. Moreover, the test was obtained only three days after the Veteran had stopped Metformin tablets which he had been taking prescribed by Dr. Hanson for the prior three months which could have affected the results of glucose tolerance test. Dr. Hanson stated that the Veteran's peripheral neuropathy has diabetes as causal. He noted that the microvascular complications of diabetes such as peripheral neuropathy, retinopathy, and nephropathy are known to precede the biochemical evidence of diabetes by years in some cases. Dr. Hanson also reported that the Veteran's altered blood sugars were not all non-fasting as implied by VA. Moreover, the Veteran's hemoglobin AlC of 6.4 percent went to 5.8 percent after beginning treatment with Metformin. Dr. Hanson stated that normal glucose metabolism gives hemoglobin AlC of less than or equal to 6 percent. Associated with the claims file is a February 2010 Quest Diagnostics laboratory report which reflects that the Veteran had a fasting glucose of 133 mg/dl and hemoglobin A1C of 6.5 percent. The tests were ordered by Dr. Hanson. At a February 2010 hearing before a DRO, the Veteran testified that he was treated with Metformin for his diabetes mellitus but had recently stopped taking the medication because of VA's continued denial of his claim for diabetes. He stated that he had been medically treated for diabetes for two years. He testified that his peripheral neuropathy was related to his diabetes mellitus. At a July 2010 VA examination, the Veteran reported that he had stopped taking Metformin because of the VA examination. Laboratory testing revealed a fasting glucose of 112 mg/dl and hemoglobin A1C of 6.2 percent. Following a physical examination and review of the claims file, the examiner once again stated that the Veteran did not meet the criteria for diabetes mellitus and she concluded that the Veteran had peripheral neuropathy most likely secondary to a lumbar laminectomy. Another VA opinion was requested from the July 2010 VA examiner in order for the examiner to address whether the results of the February 2010 laboratory tests which revealed elevated fasting blood glucose and hemoglobin A1C would change the examiner's opinion. In a November 2011 VA opinion, the examiner appears to have reviewed some laboratory records but she failed to specifically address the February 2010 laboratory results. She concluded again that the laboratory data available did not support a diagnosis of diabetes mellitus, type II, based on the ADA criteria. In a January 2014 statement, Dr. Hanson provided a thorough recitation of the Veteran's medical history and once again concluded that the Veteran meets the criteria for diabetes mellitus, type II. Dr. Hanson noted that the Veteran was initially seen for peripheral neuropathy in 2005 and did not complete a blood evaluation at that time for the peripheral neuropathy. However, the Veteran did not respond overly well to neuropathic pain modulator medication. Dr. Hanson indicated that it seemed odd that the patient of thin body stature who was heavily into running as a way to keep fit would have a high fasting blood sugar of 105. Dr. Hanson noted that a hemoglobin A1C of 6.4 percent was discovered in 2007 and the Veteran received relief from his peripheral neuropathy symptoms with the use of Metformin, an anti-diabetic drug. Dr. Hanson noted that the VA examiner has disputed that the Veteran has diabetes mellitus at all based on the ADA's outmoded standard definition of diabetes which requires two fasting blood sugars 146 or above on two separate occasions; a two hour post 75 gram glucose load come back above 200 mg/dl on two occasions; and random blood sugar 200 on two occasions. Dr. Hanson noted that the Veteran had a hemoglobin A1C of 6.4 percent in 2007 despite running vigorously and regularly and having a lean body mass that exceeds most Americans' fitness. Dr. Hanson also reported that there was no question that the Veteran had a standard stocking distribution of peripheral neuropathy. Dr. Hanson noted that the results of the EMG which revealed early axonal sensory neuropathy do not establish that the Veteran's lumbar spine disability was causing his neurological symptoms. Moreover, other causes of peripheral neuropathy were sought but not found and the Veteran's symptoms of peripheral neuropathy responded to the treatment for altered glucose metabolism and not with neuropathic pain modulator alone. Dr. Hanson concluded that all of the evidence points to the diagnosis of type II diabetes mellitus. He noted that the typical altered glucose metabolism is found in a fat, sedentary individual with a family history of diabetes. The Veteran had high fasting blood sugar and a hemoglobin A1C of 6.4 percent which fulfills the modern diagnosis definition of diabetes mellitus. Dr. Hanson referenced the fact that the Veteran had elevated glucose levels despite being extremely physically active with a thin body habitus. Dr. Hanson also noted that the VA examiner failed to address the elevated glucose levels obtained by VA and included in the claims file. Moreover, the 2009 laboratory results failed to account for the fact that the results may have been adulterated due to the fact that the Veteran had only stopped taking Metformin three days prior to the laboratory tests. Dr. Hanson opined that the Veteran has diabetes mellitus induced by exposure to Agent Orange and peripheral neuropathy associated with diabetes mellitus. At a January 2014 VA examination, the examiner once again reviewed the results of laboratory testing associated with the claims file and concluded once again that the Veteran does not meet the criteria for diabetes mellitus, type II. She concluded that because the Veteran does not meet the criteria for diabetes mellitus, peripheral neuropathy cannot be secondary to diabetes mellitus. She noted that the Veteran was taking B-12 shots for his peripheral neuropathy with some relief and as such the B-12 deficiency was the most likely etiology of the peripheral neuropathy. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is entitled to service connection for diabetes mellitus, type II, and peripheral neuropathy of the bilateral lower extremities. The VA examiners in this case maintain that the Veteran does not meet the criteria for diabetes mellitus per the ADA criteria. A review of the America Diabetes Association criteria for diabetes mellitus reveals that there are several ways to diagnose diabetes. The three ways noted on the American Diabetes Association website are noted to be a hemoglobin A1C of 6.5 percent and over; a fasting plasma glucose (FPG) of 126 mg/dl or higher; or an oral glucose tolerance test (OGTT) of 200 mg/dl or higher. While the criteria note that each way usually needs to be repeated on a second day to diagnose diabetes, the website specifically notes that if a patient's doctor determines that the patient's blood glucose is very high, or if the patient has classic symptoms of high blood glucose, the doctor may not require a second test to diagnose diabetes. Additionally, the website notes that research shows that you can lower your risk for type 2 diabetes by 58 percent by losing seven percent of your body weight (or 15 pounds if you weigh 200 pounds) and exercising moderately (such as brisk walking) thirty minutes a day, five days a week. (See American Diabetes Association website, available at http://www.diabetes.org/are-you-at-risk/prediabetes/?loc=atrisk-slabnav). In this case, while the claims file includes numerous opinions from VA examiners who determined that the Veteran does not meet the requirement for diabetes mellitus, in fact, the Veteran has at times met the criteria for elevated fasting blood glucose and A1C. None of the VA examiners of record appear to have addressed the elevated hemoglobin A1C noted on examination in June 2008 or the elevated fasting blood glucose results or elevated hemoglobin A1C noted in February 2010. Moreover, the Veteran's physician has provided laboratory test results and medical opinions opining that the Veteran has diabetes mellitus, type II, based both on the fact that his laboratory testing confirms such a diagnosis and because the Veteran has a thin body habitus and exercises vigorously. Based on a reading of the ADA criteria, the Veteran meets the criteria for a diagnosis of diabetes mellitus type II, because there is an elevated hemoglobin A1C of 6.5 percent on two occasions (June 2008 and February 2010) and classic symptoms of high blood sugar, in this case peripheral neuropathy. Dr. Hanson provided a detailed and reasoned rationale for his conclusion that the Veteran has diabetes mellitus, type II. With regard to the claim for peripheral neuropathy, with the exception of the September 2009 VA examiner (in the October 2009 addendum opinion), none of the VA examiner's determined that a diagnosis of diabetes mellitus was warranted and none provided an opinion as to whether the peripheral neuropathy was related to diabetes and instead indicated that the disorder was either due to a lumbar spine disability or to a B-12 deficiency. The September 2009 examiner, in the October 2009 VA addendum opinion, determined that peripheral neuropathy was unrelated to diabetes mellitus because the symptoms of peripheral neuropathy preceded the diagnosis of diabetes. However, Dr. Hanson also provided several detailed and reasoned opinions for the conclusion that the Veteran has peripheral neuropathy secondary to diabetes mellitus, type II. Dr. Hanson specifically noted that the Veteran has a classic stocking distribution to account for his peripheral neuropathy and no glucose testing was performed until 2002 after the Veteran failed to respond to neuropathic pain modulators without the use of an anti-diabetic drug. He also reported that the microvascular complications of diabetes such as peripheral neuropathy are known to precede the biochemical evidence of diabetes by years in some cases. Consequently, the Board finds that the competent evidence of record demonstrates that service connection for diabetes mellitus, type II, is warranted on a presumptive basis and service connection for peripheral neuropathy of the bilateral lower extremities as secondary to diabetes mellitus is warranted. ORDER Entitlement to service connection for diabetes mellitus, type II, is granted. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, as secondary to diabetes mellitus, type II, is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs