Citation Nr: 1748158 Decision Date: 10/26/17 Archive Date: 11/03/17 DOCKET NO. 11-31 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for diabetes mellitus, type II (DMII). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Owen, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1971 to April 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in part, denied service connection for diabetes mellitus, type II. The Veteran filed a timely notice of disagreement (NOD) in April 2012. In May 2015, the Veteran testified at a Travel Board hearing before the undersigned Veteran's Law Judge at the RO in St. Petersburg, Florida. A transcript of the hearing is associated with the claims file. In September 2015, the Board remanded the case for further development of the record, including obtaining a VA examination and medical opinion. The Board notes that in September 2015, it also remanded a claim of entitlement to service connection for a right upper extremity disorder. In a July 2016 rating decision, the RO granted service connection for a right upper extremity disorder. As a grant of service connection is a grant of the benefit sought on appeal, the issue of a right upper extremity disorder is no longer before the Board. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that service connection is warranted for his diabetes mellitus, type II (DMII), to include as due to herbicide exposure while stationed in Vietnam and Thailand during the Vietnam era. Specifically, he claims that he had 60-day temporary duty (TDY) in Vietnam and another 60-day TDY in Thailand as a patrolman. The Veteran was afforded VA examinations in September 2010 and March 2012. The VA examiners noted that the Veteran was diagnosed with diabetes in 2003, but neither provided a nexus opinion concerning the etiology of the Veteran's diabetes. Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The Veteran has been diagnosed with diabetes mellitus, which is a disease subject to presumptive service connection. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). However, in September 2015, the Board found that the presumption afforded under 3.309(e) could not provide a basis for a grant of service connection, as there was no documentation that the Veteran served in Vietnam and or that the Veteran's duties in Thailand required him to spend time at or near the perimeter of the base. Nevertheless, the Board noted that even if a Veteran is found not to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Therefore, the Board remanded the claim for a VA examination and opinion as to whether the Veteran's DMII was related to or caused by active duty on a direct basis. The Veteran was afforded a VA examination in December 2015. The VA examiner noted that the Veteran was diagnosed with diabetes in 2006 and opined that it was less likely than not caused by or a result of time in service, finding that the onset of diabetes significantly postdated active duty, the Veteran's service treatment records did not indicate a clear and unmistakable onset of diabetes in service, and that the Veteran's risk factors for diabetes could not be linked to service. The Board finds that the examiner's opinion is inadequate, as the examiner's opinion is based upon an inaccurate or incomplete premise. The December 2015 examiner noted onset of diabetes in 2006, while previous examiners have noted an earlier onset, in 2003. Furthermore, it does not appear that the December 2015 examiner considered the Veteran's testimony during his May 2015 Board hearing that he was diagnosed with diabetes in the late 1980s, or a January 2010 VA consult note which indicates a diagnosis of diabetes in 1995 or earlier. In addition, as discussed below, it is not clear that the Veteran's medical records reviewed by the examiner are complete. VA treatment records associated with the Veteran's claims file consist of records up to 1997, particularly for back problems, and from 2003 to the present. It is not clear whether records exist from 1997 through 2003. As it appears that the Veteran had continuing treatment at the VA, the Board finds that a remand is warranted in order to obtain and associate with the Veteran's electronic claims file any treatment records pertaining to the Veteran's diagnosed diabetes prior to 2003. Any private treatment records identified by the Veteran should also be associated with the Veteran's claims file. After obtaining any outstanding medical records, the Veteran's claims file should be returned to the December 2015 VA examiner for an addendum opinion as to the nature and etiology of the Veteran's DMII. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the Veteran's electronic claims file any VA treatment records or private treatment records identified by the Veteran pertaining to treatment of his diabetes prior to 2003. 2. Then, return the Veteran's electronic claims file to the December 2015 VA examiner for an addendum opinion. If the examiner is unavailable, the claims file must be provided to an examiner who is qualified to give an opinion on the Veteran's diabetes mellitus, type II, so that a new opinion may be provided. A new examination is only required if deemed necessary by the examiner. The record and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. If a new examination is conducted, the examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with complete explanation in support of such a finding. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater possibility) that the Veteran's diabetes mellitus, type II, began during or is caused by active service; or began within one year after discharge from active service. Although a thorough review of the claims file is required, the Board draws the examiner's attention to the Veteran's statements that his diabetes began in the late 1980s and the January 2010 consult note reflecting a diabetes diagnosis in 1995. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions, based on his or her clinical experience, medical expertise, and established medical principles. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the causal relationship. Less likely weighs against the claim. 3. After completing the above, and any other development as may be indicated, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant 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). _________________________________________________ K. PARAKKAL 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) (2016).