Citation Nr: 1618540 Decision Date: 05/09/16 Archive Date: 05/19/16 DOCKET NO. 09-45 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from July 1971 to March 1972. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which, in pertinent part, declined to reopen service connection for diabetes mellitus and denied a TDIU. A claim to reopen service connection for diabetes mellitus was received in December 2006. An application for increased compensation based on unemployability (on a VA Form 21-8940) was received in October 2007. In July 2014, the Board, in pertinent part, reopened service connection for diabetes mellitus and remanded the issues of service connection for diabetes mellitus and entitlement to a TDIU for additional development. The Board is granting service connection for diabetes mellitus type 1, constituting a full grant of the benefit sought on appeal; therefore, any discussion with regard to compliance with the Board's remand instructions with respect to this fully granted service connection issue is rendered moot. Further, the Board is remanding the issue of a TDIU for further development. The Veteran submitted additional private treatment records in March 2015. While the most recent supplemental statement of the case, dated in February 2015, does not include review of these records, the representative waived agency of jurisdiction (AOJ) review of this evidence in the first instance. As such, the Veteran is not prejudiced by the Board promulgating a decision without AOJ consideration of this evidence in the first instance. The Board finds that it is not clear whether the Veteran wishes to file claims to reopen service connection for bilateral upper and lower extremity peripheral neuropathy, an eye disorder, a mouth disorder, foot and muscle problems, and rubella. In August 2014 and February 2015, the Veteran submitted written statements that referenced these issues as if they were currently on appeal. If the Veteran intends to file claims with respect to any of these issues, he should notify VA expressing such an intention. 38 C.F.R. §§ 3.1(p), 3.155(a) (2015). The Veteran also referenced wanting a 100 percent disability rating "back to 2000"; however, there is no such thing as a freestanding claim for earlier effective date where there is a final decision that set the effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that a freestanding claim for an earlier effective date is a nullity, and the only basis for challenging the effective of a now final decision date is CUE). In April 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge at the RO in Milwaukee, Wisconsin (Travel Board hearing). A transcript of the hearing is of record. The Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA"/VBMS system to insure a total review of the evidence. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran has a current diagnosed disability of diabetes mellitus type 1. 2. The Veteran was treated for rubella during service. 3. The Veteran's diabetes mellitus type 1 is related to the in-service rubella. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for diabetes mellitus type 1 have been met. 38 C.F.R. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159 (2015). The Board grants service connection for diabetes mellitus, constituting a full grant of the benefit sought on appeal with respect to this issue, and remands the issue of entitlement to a TDIU; therefore, no discussion of VA's duty to notify and to assist is necessary. Service Connection for Diabetes Mellitus Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). As adjudicated below, the Board is granting service connection for diabetes mellitus type 1 based on direct service connection under 38 C.F.R. § 3.303(d); therefore, the additional service connection theories of presumptive service connection based on chronic symptoms in service or continuous symptoms since service of a "chronic" disease in service (38 C.F.R. § 3.303(b) (2015)) or manifesting within one year of service separation (38 C.F.R. § 3.307 (2015)) pursuant to the same benefit are rendered moot, and there remain no questions of law or fact as to the fully granted service connection issue. For this reason, these presumptive service connection theories will not be further discussed. See 38 U.S.C.A. § 7104 (West 2014) (stating that the Board decides actual questions of law or fact). The Veteran essentially contends that the current diabetes mellitus was caused by service, specifically an in-service case of rubella. At the April 2014 Board hearing, the Veteran testified that the currently diagnosed diabetes was caused by an in-service case of rubella. The Veteran further testified that blunt force trauma from playing football during service may have injured his pancreas. First, the Board finds that the weight of the evidence is at least in equipoise as to whether the Veteran has a current diagnosis of diabetes mellitus type 1. There is conflicting evidence as to whether the Veteran has been diagnosed with diabetes mellitus type 1 or type 2. In a January 2008 written statement, the Veteran contended that he has diabetes mellitus type 1. In the February 2014 written statement, the Veteran also contended that he has "type 1.75, [] hybrid" diabetes rather than type 1 or type 2 diabetes mellitus. See also April 2014 Board hearing transcript (Veteran reported that tests demonstrated he had diabetes mellitus "type 1.5 [or] 1.75"). With respect to the medical evidence of record, the VA treatment record associated with the claims file note multiple diagnoses of both type 1 and type 2 diabetes mellitus. The October 2001 VA examination report notes a diagnosis of diabetes mellitus type 2. Conversely, September and December 2002 VA treatment records note a diagnosis of diabetes mellitus type 1. In a January 2008 letter, the Veteran's VA doctor (an endocrinologist) noted that it was unclear if the Veteran had type 1 or type 2 diabetes mellitus. At the April 2008 and September 2015 VA examinations, the VA examiners opined that the Veteran had type 2 and not type 1 diabetes mellitus based on the date of diagnosis in 1985 or 1986, and that the Veteran was initially treated with diet and exercise alone, was only later started on insulin, and had never been hospitalized for diabetic ketoacidosis. The April 2008 VA examiner noted that, upon consultation, the Veteran's VA treating physician (who wrote the January 2008 letter) also agreed that the Veteran had diabetes mellitus type 2. However, the same VA endocrinologist noted by the April 2008 VA examiner, subsequent to the VA examination, has repeatedly noted in the VA treatment records that the Veteran probably has type 1 diabetes that was diagnosed in 1979 to 1980. See e.g., September 2008, July 2012, February 2013, November 2013, and November 2014 VA treatment records. A December 2014 VA treatment record notes that the Veteran most likely has type 1 diabetes mellitus and indicates that the type 2 diabetes notations throughout the VA treatment records were suspected of being due to "picking off a quick pick diagnosis list." Based on the above, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran has a current diagnosis of diabetes mellitus type 1. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Next, the Board finds that the Veteran experienced a case of rubella during service. Service treatment record notes that the Veteran was admitted to the military hospital on August 27, 1971 and discharged September 3, 1971 for treatment for rubella. Given the above, the remaining question is whether there is medical evidence of a link between the current diabetes mellitus type 1 and the in-service case of rubella. There are multiple private and VA medical opinions with respect to the connection, if any, between diabetes mellitus type 2 and rubella. See August 2012 private medical opinion, October 2001, April 2008, September 2013, and September 2014 VA examination reports. The Board finds that these medical opinions are inadequate because they are based on the inaccurate factual predicate that the Veteran has type 2 instead of type 1 diabetes mellitus. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). In January 2008 private medical opinions, a nurse practitioner noted that the Veteran had diabetes mellitus type 1 that onset in 1983 and opined that it was a reasonable hypothesis that the in-service rubella may have caused diabetes mellitus type 1, 12 years post-infection. The private nurse practitioner opined that it was a well-known fact that individuals who develop rubella in the teenage years are more prone to developing diabetes as adults. The private nurse practitioner opined that it was more likely than not that the acute rubella infection at the age of 18 contributed to the onset, if not actually caused in its entirety, the diagnosed diabetes mellitus type 1 that manifested eight to nine years following the incident of rubella. Based on the above, the Board finds that the evidence of record sufficiently indicates that the Veteran's diabetes mellitus type 1 is at least as likely as not related to the in-service case of rubella; as such, resolving reasonable doubt in favor of the Veteran, service connection for diabetes mellitus type 1 is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for diabetes mellitus type 1 is granted. REMAND TDIU The Board finds that the Veteran's employment history is unclear from the record. Throughout the course of the appeal, the Veteran has consistently reported that he is unemployed and that the service-connected disabilities prevent him from working. In a January 2007 written statement, the Veteran contended that, in 1986, he was asked to look for another job because of his low production due to his frequent illnesses including knee surgery, diabetes, mouth surgeries, eye problems, and depression. The Veteran contended that his (non-service-connected) rubella and (service-connected) depression have rendered him unemployable. In a December 2009 substantive appeal (on VA Form 9), the Veteran contended that he lost his job in the late 1980s because of (service-connected) knee, back and neck disabilities and diabetes mellitus as well as because of a (non-service-connected) mouth disorder. At the April 2014 Board hearing, the Veteran testified that the pain from the service-connected back, neck, and left knee disabilities would currently preclude even sedentary-type employment. The Veteran testified that his back, neck, and knee disabilities, along with his depression and diabetes, would preclude him from employment today. In October 2007 and September 2014 applications for increased compensation based on unemployability (on VA Form 21-8940), the Veteran reported that he last worked in 1990. At April 2008, September 2010, September 2014, and October 2014 VA examinations, the Veteran reported that he was currently unemployed due to service-connected disabilities. However, the Veteran's reports of being unemployed throughout the appeal period appear to be contradicted by the other evidence of record. May 2009 to July 2010 VA treatment records note that the Veteran reported being very active on his feet running a business. This is in contrast to the Veteran's statements shortly afterwards at a September 2010 VA examination at which the Veteran reported being unemployed. Internet evidence has also been associated with the claims file reflecting statements on the Veteran's business website of a customer meeting the Veteran at a Food Show in the summer of 2014 at which time the Veteran stated he was the owner of a restaurant. The customer stated that they stopped by the business where the Veteran gave them a free sample. Further, it is unclear whether any current employment constitutes substantially gainful employment. TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16 (West 2014). The regulation explains that marginal employment shall not be considered "substantially gainful employment." Marginal employment is defined as employment where a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id.; see also Faust v. West, 13 Vet. App. 342 (2000). Marginal employment may also be found in some cases when earned annual income exceeds the poverty threshold, such as cases where there is employment in a protected environment, such as a family business or sheltered workshop. Id. As such, any current employment by the Veteran at the family-owned business may constitute "marginal employment." On remand, the AOJ should request that the Veteran provide, for the entire appeal period (2007 to present), evidence pertaining to his annual income and information about the alleged business that he owns, including pertinent tax or financial documents. The AOJ should also request that the Veteran file an updated VA Form 21-8940 detailing his complete work history (including self-employment) and any other information regarding his employment or attempts to obtain employment. Any other development deemed necessary to adjudicate the claim for entitlement to TDIU should be completed. The Veteran should be informed that, while VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). VA's duty must be understood as a duty to assist a veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). Accordingly, the issue of entitlement to a TDIU is REMANDED for the following action: 1. Contact the Veteran and request that he provide proof of his annual salary throughout the course of the appeal, such as copies of salary statements, wage receipts, W-2s, and/or tax returns or other pertinent financial documents for each year. Request that the Veteran provide information regarding the restaurant business that the evidence reflects that he may own. 2. Request that the Veteran file an updated VA Form 21-8940 detailing his complete work history (including self-employment) and any other information regarding his employment or attempts to obtain employment. 3. After undertaking any additional development deemed appropriate, readjudicate the remaining issue of entitlement to a TDIU in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and the representative should be furnished with a supplemental statement of the case and allowed an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs