Citation Nr: 1544458 Decision Date: 10/19/15 Archive Date: 10/29/15 DOCKET NO. 10-29 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio 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 left upper extremity, to include as secondary to diabetes mellitus, type II. 3. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to diabetes mellitus, type II. 4. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to diabetes mellitus, type II. 5. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to diabetes mellitus, type II. 6. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II. 7. Entitlement to service connection for nephropathy, to include as secondary to diabetes mellitus, type II. 8. Entitlement to service connection for bilateral optic nerve damage and retinal folds in both eyes, to include as secondary to diabetes mellitus, type II. REPRESENTATION Veteran represented by: Sean A. Ravin, Attorney WITNESSES AT HEARING ON APPEAL Veteran and Veterans Service Officer ATTORNEY FOR THE BOARD Journet Shaw, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The case has since been returned to the RO in Cleveland, Ohio. The Veteran and a Veterans Service Officer testified before a Veterans Law Judge (VLJ) at a March 2012 Travel Board hearing. A transcript of this hearing is of record. In February 2015, the Veteran was notified that the VLJ who held his March 2012 Board hearing was no longer employed by the Board. The Veteran did not respond to a request for another hearing. 38 C.F.R. § 20.717 (2014). In December 2012, the Board denied service connection for the issues on appeal. The Veteran appealed the Board's December 2012 decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2014 memorandum decision, the Court vacated the Board's December 2012 denial of service connection for all of the issues on appeal and remanded the case for readjudication consistent with the decision. In addition to the paper claims file, there are Virtual VA and Veterans Benefit Management System (VBMS) paperless claims files associated with the Veteran's appeal. A review of the Virtual VA and VBMS claims files do not reveal any additional evidence pertinent to the present appeal. The Board also notes that there appear to be additional issues not yet certified to the Board. The issues of entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II; entitlement to service connection for nephropathy, to include as secondary to diabetes mellitus, type II; and entitlement to service connection for bilateral optic nerve damage and retinal folds in both eyes, to include as secondary to diabetes mellitus, type II, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence is at least in equipoise that the Veteran was exposed to herbicides while serving in the Panama Canal Zone. 2. The Veteran's diabetes mellitus, type II is presumptively related to his exposure to herbicides. 3. The Veteran was diagnosed with peripheral neuropathy of the left and right upper extremities. 4. The Veteran's peripheral neuropathy of the left upper extremity is a complication of his diabetes mellitus, type II. 5. The Veteran's peripheral neuropathy of the right upper extremity is a complication of his diabetes mellitus, type II. 5. The Veteran was diagnosed with peripheral neuropathy of the left and right lower extremities. 6. The Veteran's peripheral neuropathy of the left lower extremity is a complication of his diabetes mellitus, type II. 7. The Veteran's peripheral neuropathy of the right lower extremity is a complication of his diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria to establish service connection for diabetes mellitus, type II, have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2014). 2. The criteria to establish service connection for peripheral neuropathy of the left upper extremity, to include as secondary to diabetes mellitus, type II, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2014). 3. The criteria to establish service connection for peripheral neuropathy of the right upper extremity, to include as secondary to diabetes mellitus, type II, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2014). 4. The criteria to establish service connection for peripheral neuropathy of the left lower extremity, to include as secondary to diabetes mellitus, type II, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2014). 5. The criteria to establish service connection for peripheral neuropathy of the right lower extremity, to include as secondary to diabetes mellitus, type II, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Given the Board's favorable decision in granting service connection for diabetes mellitus, type II, peripheral neuropathy of the left and right upper extremities, and peripheral neuropathy of the left and right lower extremities, the Board finds that all notification and development actions needed to fairly adjudicate the appeal have been accomplished. Service Connection This case a somewhat long and detailed procedural history, which the Board will not belabor. However, the Board apologizes for the delay here at the Board of Veterans' Appeals, which this Board Member finds was unfortunate, at best. In any event, based upon a careful review of all of the evidence of record, which is extensive, the Board finds that the evidence is at least in equipoise that this Veteran was exposed to herbicides while serving in the Panama Canal Zone. Based on this Veteran's MOS, his credible lay testimony, and othe other evidence of record the Board concludes that this Veteran's duties regularly transporting supplies and troops into the jungle exposed him to herbicides. See Hudgens v. Gibson, 26 Vet. App. 558, 563 (2014) fn 5, [T]he Board is not the body tasked with interpreting regulations on the Secretary's behalf. Rather, Congress was unequivocally clear that the Board is to be bound by "regulations by the Department, instructions of the Secretary, and the precedential opinions of the chief legal officer of the Department." See 38 U.S.C. § 7104(c); see also 38 C.F.R. § 20.1303 (providing that "previously issued Board decisions will be considered binding only with regard to the specific case decided."); see also 57 Fed.Reg. 4088, 4103 (Feb. 3, 1992) (noting the ex parte nature of Board proceedings and explaining that "[q]uestions of fairness would arise by, in effect, making a [Board] decision precedential when the Department has no opportunity to present and defend its position in the proceeding. Further, VA may not appeal a [Board] decision to the [Court].... [U]niformity will be achieved on important questions through precedent decisions of the United States Court of Veterans Appeals."). Stated otherwise, the Secretary is tasked with establishing VA policy; the Board is tasked with following such established policy. See 38 C.F.R. § 20.1303 (providing that although "prior decisions in other appeals may be considered in a case," the Board is not bound by these decisions and must still decide a case "on the basis of the individual facts of the case in light of applicable procedure and substantive law"). (emphasis added) The Veteran's private treatment records reflect that he was first diagnosed with diabetes mellitus, type II, in July 2002. See July 2002 private treatment record. A July 2009 clinical summary documents that the he had noninsulin-dependent diabetes. Therefore, the Board concludes that the Veteran's diabetes mellitus, type II, is presumptively related to his period of active duty service; he is entitled to service connection for diabetes mellitus, type II. A July 2009 electromyogram examination revealed that the Veteran had moderate to marked diabetic neuropathy in the lower extremities and mild neuropathy in the upper extremities. A July 2009 examiner noted that diabetic peripheral neuropathy was a well-known microvascular complication of diabetes. The examiner opined that the Veteran's peripheral neuropathy was most likely secondary to his diabetes mellitus. See July 2009 clinical summary. Accordingly, the Veteran's service connection for peripheral neuropathy of the left and right upper extremities and peripheral neuropathy of the left and right lower extremities is warranted. The evidence shows that the Veteran has a current diagnosis for peripheral neuropathy of the bilateral upper and lower extremities and that service connection for diabetes mellitus, type II, has been established. The July 2009 VA examiner found that the Veteran's peripheral neuropathy of the bilateral upper and lower extremities is most likely secondary to his diabetes mellitus. Therefore, the Board concludes that the Veteran is entitled to service connection for peripheral neuropathy of the left and right upper extremities and peripheral neuropathy of the left and right lower extremities as secondary to diabetes mellitus, type II. In sum, resolving all reasonable doubt in favor of the Veteran, entitlement to service connection for diabetes mellitus, type II, peripheral neuropathy of the left and right upper extremities, and peripheral neuropathy of the left and right lower extremities are granted. 38 U.S.C.A. § 51-7(b); 38 C.F.R. 3.102; 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 left upper extremity is granted. Entitlement to service connection for peripheral neuropathy of the right upper extremity is granted. Entitlement to service connection for peripheral neuropathy of the left lower extremity is granted. Entitlement to service connection for peripheral neuropathy of the right lower extremity is granted. REMAND Unfortunately, a remand is required in this case for the issues remaining on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. The Veteran is also seeking entitlement to service connection for hypertension, nephropathy, and bilateral optic nerve damage and retinal folds in both eyes. The Veteran was not afforded VA examinations for these claimed disabilities. The Veteran contends that these disabilities all developed as a result of his exposure to herbicides. VA examinations are required to determine the nature and likely etiology of these disabilities. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain all of the Veteran's outstanding treatment records for his hypertension, nephropathy, and bilateral optic nerve damage and retinal folds in both eyes that are not currently of record. The Veteran must be provided with the necessary authorizations for the release of any treatment records. The AOJ must then obtain and associate the records with the claims file. 2. When the above development has been completed, to the extent possible, the AOJ should schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the nature and etiology of the Veteran's hypertension. The Veteran's claims file, including a copy of this REMAND, should be made available to the examiner. All appropriate testing should be conducted. After a review of the record on appeal, the examiner should respond to the following: a. Is it at least as likely as not (50 percent probability or more) that the Veteran's hypertension had its clinical onset during active duty service or is related to any in-service disease, injury, or event, including conceded exposure to herbicides? b. Or, is it at least as likely as not (50 percent probability or more) that the Veteran's hypertension was caused or permanently aggravated by (worsened beyond the natural progression of such disorder) his service-connected disabilities, including diabetes mellitus, type II, peripheral neuropathy of the bilateral upper extremities, or peripheral neuropathy of the bilateral lower extremities? All examination findings, along with the complete rationale for all opinions expressed, should be discussed in the examination report. 3. In conjunction with the above, the AOJ should schedule the Veteran for a VA examination by an appropriate qualified examiner to determine the nature and etiology of the Veteran's nephropathy. The Veteran's claims file, including a copy of this REMAND, should be made available to the examiner. All appropriate testing should be conducted. After a review of the record on appeal, the examiner should respond to the following: a. Is it at least as likely as not (50 percent probability or more) that the Veteran's nephropathy had its clinical onset during active duty service or is related to any in-service disease, injury, or event, including conceded exposure to herbicides? b. Or, is it at least as likely as not (50 percent probability or more) that the Veteran's nephropathy was caused or permanently aggravated by (worsened beyond the natural progression of such disorder) his service-connected disabilities, including diabetes mellitus, type II, peripheral neuropathy of the bilateral upper extremities, or peripheral neuropathy of the bilateral lower extremities? All examination findings, along with the complete rationale for all opinions expressed, should be discussed in the examination report. 4. In conjunction with the above, the AOJ should schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the nature and etiology of the Veteran's bilateral optic nerve damage and retinal folds in both eyes. The Veteran's claims file, including a copy of this REMAND, should be made available to the examiner. All appropriate testing should be conducted. After a review of the record on appeal, the examiner should respond to the following: a. Is it at least as likely as not (50 percent probability or more) that the Veteran's bilateral optic nerve damage and retinal folds in both eyes had its clinical onset during active duty service or is related to any in-service disease, injury, or event, including conceded exposure to herbicides? b. Or, is it at least as likely as not (50 percent probability or more) that the Veteran's bilateral optic nerve damage and retinal folds in both eyes was caused or permanently aggravated by (worsened beyond the natural progression of such disorder) his service-connected disabilities, including diabetes mellitus, type II, peripheral neuropathy of the bilateral upper extremities, or peripheral neuropathy of the bilateral lower extremities? All examination findings, along with the complete rationale for all opinions expressed, should be discussed in the examination report. 5. Then, the AOJ should readjudicate the claims. If the benefits sought on appeal remain denied, in whole or in part, the Veteran should be provided a SSOC. 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 2014). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs