Citation Nr: 1610517 Decision Date: 03/16/16 Archive Date: 03/23/16 DOCKET NO. 11-10 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for diabetes, to include as secondary to exposure to Agent Orange. REPRESENTATION Veteran represented by: Joseph Kundrat, Agent ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Baltimore, Maryland (RO). REMAND The Veteran contends that his current diabetes mellitus type II disorder, which is manifested by numbness of the upper and lower extremities, is the result of his exposure to Agent Orange while serving in the Republic of Vietnam during the Vietnam Era. In this regard, his DD Form 214 shows that he served in the U.S. Army from September 1966 to February 1969, and reflects service in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (2015). The Board, however, finds that clarification as to the Veteran's current diagnosis and an etiology opinion is necessary prior to adjudication. Specifically, the evidence of record is conflicting as to whether the Veteran's current diagnosis is diabetes mellitus type I, diabetes mellitus type II, or diabetes due to a disease of the pancreas. To date, the VA and private examinations and opinions of record are inadequate to adjudicate the claim. The Veteran underwent a VA examination in January 2008, during which diabetes mellitus type I was diagnosed; however, the examiner failed to provide any etiology for such disorder. In a December 2008 private opinion, A. R., M.D. indicated that he reviewed the Veteran's treatment records dated in 1991 and 1992, which revealed that his diabetes was well controlled with oral agents, and therefore such fact was indicative of a diagnosis of diabetes mellitus, type II. The Board, however, has also reviewed the claims file, and found it to be devoid of any mention of an oral agent to treat the Veteran's diabetes disorder. Moreover, private treatment records during the aforementioned time period note diagnoses of diabetes mellitus, type I. In addition, in February 2011, a VA examiner reviewed the claims file and provided an opinion, indicating that the Veteran did not have diabetes mellitus type I or type II, and concluded that his current diagnosis was diabetes due to a disease of the pancreas, as the Veteran started on insulin in June of 1992, after he underwent a pancreatoduodenectomy. The February 2011 VA examiner, however, also failed to provide an etiology for such diagnosis. Accordingly, another VA examination and opinion are necessary in order to make a determination in this case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Finally, the record contains VA outpatient treatment records to December 2010; thus, VA must obtain any VA outpatient treatment records from December 2010 to the present. See 38 C.F.R. § 3.159 (c)(2) (2015); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must obtain VA outpatient treatment records from the VA Medical Center in Martinsburg, West Virginia dated in December 2010 to the present. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Upon completion of the above development, the Veteran must be afforded an appropriate VA examination to determine whether any currently or previously diagnosed diabetes is related to his military service. The electronic claims file, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. The examiner must state the specific findings upon which his current diagnosis is based. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether any previously or currently diagnosed diabetes, to include type I, type II, or a disease of pancreas is related to his military service, to include exposure to an herbicide agent. The examiner is instructed to accept as fact that the Veteran was exposed to an herbicide agent during his service in Vietnam. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 4. The medical report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).